KHURSHID Vs. STATE OF M.P.

JUDGEMENT

(1.) In this petition under Article 226 of the Constitution of India, the petitioner has assailed the validity of the order dated 28/4/2016 passed by District Magistrate, Vidisha by which the petitioner, who is an under trial prisoner, has been detained invoking provisions of Section 3 (2) and 3 (3) of the National Security Act, 1980 (for short "the Act of 1980") and has been ordered to be kept in Central Jail, Bhopal. In order to appreciate the petitioner's grievance, few facts need mention, which are stated infra.

(2.) A case for the offence under Section 429, 379 of IPC as well as under Section 4/9 of M.P. Govadh Pratished Adhiniyam, 2004 was registered against the petitioner by Police Station Sironj vide crime No. 129/2016. The petitioner was arrested in connection with the aforesaid offence on 24/4/2016 and was produced before the Judicial Magistrate and was sent on judicial remand. On 25/4/2016 , the Station House Officer, Police Station, Sironj, sent a letter to the Superintendent of Police for initiating proceedings under the provisions of Act of 1980 against the petitioner. Thereafter, on 26/4/2016, the Superintendent of Police, Vidisha informed the District Magistrate, Vidisha about the activities of the petitioner and a proposal was sent that the petitioner be detained under the provisions of Act of 1980. The District Magistrate on 28/4/2016, passed an order in purported exercise of powers under Sections 3 (2) and 3 (3) of the Act of 1980. In the aforesaid factual background, the petitioner has approached this Court.

(3.) Learned counsel for the petitioner submitted that the order of detention is vitiated in law inasmuch as no period of detention in order of detention is mentioned. It is further submitted that at the time when the order of detention was passed, the petitioner was already in judicial custody since 24/4/2016 and admittedly had not applied for grant of bail, therefore, there was no likelihood of the petitioner to come out of the jail and to disturb the public order. However, the detaining authority has failed to take into account the aforesaid aspect of the matter while passing the order of detention which vitiates the order of detention. It is also urged that the order of detention has been passed in violation of Section 3 (3) and 3 (4) of the Act of 1980 inasmuch as the approval of the State Government has not been accorded in respect of order of detention. Lastly, it is urged that the return filed on behalf of the respondents is not supported by an affidavit of the District Magistrate which is mandatory in law. On the other hand, learned Government Advocate has supported the order of detention and has submitted that the order of detention as per the averments made in the return has been passed for a period of one year.