SUPREME COURT REITERATES PRINCIPLES OF PREVENTIVE DETENTION AND PROTECTIONS TO UNDERTRIALS

A three Judge Bench of the Supreme Court comprising of Justices, Dr Dhananjaya Y Chandrachud, Vikram Nath and B V Nagarathna passed a Judgment dated 29-10-2021 in Sarabjeet Singh Mokha vs The District Magistrate, Jabalpur & Ors., wherein the Apex Court discussed the provisions of preventive detention and protections to undertrials and detainees in India.

In this case, an FIR bearing No. 252/2021 was registered at Omti Police Station, Jabalpur on 10-05-2021 against Dr. Sarabjeet Singh Mokha, Director of City Hospital, Jabalpur (Appellant herein) for conniving with others in procuring 500 fake Remdesivir injections from Indore worth Rs. 15 Lakhs and administering the same to 50 patients at the City Hospital on 30-04-2021, in order to make illegal profits, thereby endangering the lives of the patients.

The FIR was registered under the following provisions of law:

1. Section 274 of the India Penal Code 1860 (IPC) (Adulteration of drugs),
2. Section 275 IPC (Sale of adulterated drugs),
3. Section 308 IPC (Attempt to commit culpable homicide),
4. Section 420 IPC (Cheating and dishonestly inducing delivery of property)
5. Section 120B IPC (Punishment of criminal conspiracy);
6. Section 3 of the Epidemic Diseases Act 1897 (Penalty); and
7. Section 53 of the Disaster Management Act 2005 (Punishment for misappropriation of money or materials, etc).

On 11-05-2021, the Superintendent of Police made a request to the District Magistrate seeking permission to take action against the Appellant under the National Security Act 1980 (NSA). The District Magistrate passed an Order dated 11-05-2021 under Section 3 (2) of NSA, thereby detaining the Appellant for a period of three months (Detention Order) on various grounds including (i) administering spurious Remdesivir injections to patients which resulted in their untimely deaths, (ii) use of fake bills to procure spurious Remdesivir injections, (iii) cheating patients for administering fake essential drugs, etc.

The Appellant was then detained on 12-05-2021 in pursuance of the Detention Order. Thereafter, on 13-05-2021, the Government of Madhya Pradesh approved the Detention Order and also submitted a Report to the Government of India in that regard.

The relevant provisions of NSA applicable in this case are reproduced below:

3.Power to make orders detaining certain persons.—

(2) The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained.

Explanation.—For the purposes of this sub-section, “acting in any manner prejudicial to the maintenance of supplies and services essential to the community” does not include “acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community” as defined in the Explanation to sub-section (1) of section 3 of the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (7 of 1980), and accordingly, no order of detention shall be made under this Act on any ground on which an order of detention may be made under that Act.

(4) When any order is made under this section by an officer mentioned in sub-section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government:

Provided that where under section 8 the grounds of detention are communicated by the officer making the order after five days but not later than fifteen days from the date of detention, this sub-section shall apply subject to the modification that, for the words “twelve days”, the words “twenty days” shall be substituted.

The Appellant then submitted a Representation against the Detention Order to the State and Central Home Ministry on 18-05-2021. The State Government submitted the said Representation and grounds of detention to an Advisory Board under Section 10 of NSA, which in turn, opined that there was sufficient cause for detention of the Appellant on 15-06-2021. Accordingly, the State Government approved the Detention Order. The Central Government also rejected the Appellant’s Representation on 24-06-2021.

Later upon recommendation of the Superintendent of Police, the District Magistrate extended the Detention period by a further period of three months, i.e. till 12-11-2021, vide Order dated 05-07-2021 (Extension Order). The State Government approved the extension of the Detention period till 12-11-2021, on 15-07-2021.

Meanwhile, the Appellant filed a Writ Petition under Article 226 of the Constitution of India to challenge both the Detention Order and the Extension Order, before the High Court of Madhya Pradesh on 03-07-2021. The High Court passed a Judgment dated 24-08-2021 and thereby, rejected the said Writ Petition on various grounds inter alia (a) that the act of administering fake Remdesivir injections is sufficient to attract Section 3 of NSA; (b) that the District Magistrate had given detailed reasons while passing the Detention Order; (c) that the District Magistrate’s Order dated 11-05-2021 was communicated to the State Government on 13-05-2021 to seek its approval, hence, there was no undue delay in communication.

Aggrieved by the High Court’s Judgment dated 24-08-2021, the Appellant filed a Criminal Appeal before the Supreme Court. During the pendency of the proceedings before the Apex Court, the Detention Order was further extended for a period of three months, i.e. till 12-02-2022.

The Supreme Court made the following observations in this case:

1) That Article 22 of the Constitution of India 1950 (Protection against arrest and detention in certain cases) provides specific protections to undertrials and detainees in India. Article 22 provides for preventive detention, where a person is detained without trial and hence, the said provision incorporates procedural safeguards which mandate an immediacy in terms of time.

2) That broadly, Article 22 gives a right to the detenu to submit a representation against an order of detention and provides as follows:

a) A person cannot be detained for a period longer than three months unless an Advisory Board has reported that in its opinion there is sufficient cause for such detention.

b) The detained person shall be informed about the grounds of detention order as soon as possible by the concerned Authority, so that the detenu may get an opportunity to make a representation against such order at the earliest.

3) That the provisions of NSA also follow the mandate of Article 22:

i) Section 3 (4) provides that an order of detention shall not remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government.

ii) Section 3 (5) further provides that the State Government shall, within 7 days, report the fact of approval of detention order along with reasons thereof, to the Central Government.

iii) Further, Section 8 of NSA provides that the Authority making a detention order shall inform the detained person about the grounds for such detention, within 5 days of passing such order, and in exceptional circumstances, within 15 days of passing such order with reasons thereof, so that he may make a representation against such order to the appropriate Government.

iv) That as per Section 10 of NSA, the appropriate Government shall, within 3 weeks from the date of detention, submit the grounds of detention order and representation made by the detained person, to an Advisory Board constituted under Section 9 of NSA.

v) Thereafter, the Advisory Board has to submit its report to the appropriate Government within 7 weeks from the date of detention order after considering the relevant materials. Based on its report, either the detention order is allowed or rejected / revoked by the Government.

vi) That in this case, the following events indicate that there was undue delay in considering the Appellant’s Representations by the Central and State Government:

Date	Event
11-05-2021	Order of Detention was passed by the District Magistrate
12-05-2021	Appellant was detained
13-05-2021	State Government approved the Detention Order   State Government submitted the said Order to the Central Government
18-05-2021	Appellant submitted before the District Magistrate its Representations to the Central and State Government
20-05-2021	The District Magistrate communicated the Appellant’s Representations to the Central and State Government
15-06-2021	The Appellant’s Representation was rejected by the Advisory Board and communicated to the State Government
24-06-2021	The Central Government rejected the Appellant’s Representation

Hence, in case of State Government, there was almost 60 day delay in considering the Appellant’s Representation and in case of Central Government, there was a one-and-a-half-month delay on the part of the Central Government in considering the Representation dated 18 May 2021 and rejecting the same only on 24 June 2021.

4) The aforesaid events further clarify that the State Government had not taken any steps after the Appellant submitted its Representations on 18-05-2021, till the Advisory Board rejected the same after one and a half months, i.e. around 24-06-2021. Therefore, by delaying its decision on the Representation, the State Government deprived the Appellant of the valuable right given under Section 8(1) of NSA for Representation to the appropriate Government at the earliest.

5) Further there was no proof available that the Appellant was informed about the Central Government’s rejection of his Representation.

Thus, the Apex Court held that (a) as the State Government caused unexplained delay in considering the Representation of the Appellant and (b) the Central and the State Government failed to communicate the rejection of the Appellant’s Representation in a time-bound manner, hence, the Detention Order has been invalidated and accordingly, all further extensions of detention period also stand invalidated. As a result, the High Court Judgment dated 24-08-2021 has been set aside.

 

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

Edited by

Sushila Ram Varma

Chief Consultant and Editor

The Indian Lawyer