# SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE, JABALPUR & ORS

- **Citation:** [2021] 11 S.C.R. 468
- **Court:** Supreme Court of India
- **Decided:** 2021-10-29
- **Case number:** Criminal Appeal No. 1301 of 2021
- **Bench:** Dr. Dhananjaya Y Chandrachud, Vikram Nath, B V Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sarabjeet-singh-mokha-v-the-district-magistrate-jabalpur-ors-34761
- **Pages:** 43

## Headnote

Constitution of India: Art.22(5) - Preventive detention -
Protection to undertrials and detainees - Held: Art.22(5) mandates
that (i) the authority making the order shall "as soon as may be"
communicate the grounds on which the order has been made to the
person detained; and (ii) the detaining authority shall afford to the
person detained "the earliest opportunity of making a representation
against the order" - Both these procedural requirements are mutually
reinforcing - The communication, as soon as may be, of the grounds
of detention is intended to inform the detenu of the basis on which
the order of detention has been made - The expression "as soon as
may be" imports a requirement of immediacy - The communication
of the grounds is in aid of facilitating the right of the detenu to
submit a representation against the order of detention - The
significance of Art.22 is that the representation which has been
submitted by the detenu must be disposed of at an early date.
National Security Act, 1980: s.3(4) - Report to the State
Government - Held: Once an order of detention is made, the officer
making the order must forthwith report the fact to the State
Government, together with the grounds on which the order has been
made and other particulars which have a bearing on the matter.
National Security Act, 1980: s.8(1) - Communication of
grounds of detention - Requirment of immediacy - Held: s.8(1) uses
the expression "as soon as may be", qualifying it with the requirement
that the communication of grounds should ordinarily not be later
than five days and, in exceptional circumstances, for reasons to be
recorded in writing not later than ten days from the date of detention
- s.8(1) also embodies the second requirement of Art.22(5) of
affording to the detenu the earliest opportunity of making a
representation against the order to the appropriate government -
Constitution of India - Art.22(5).
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National Security Act, 1980: s.8 - Delay in considering the
representation - The requirement under s.8 of the disclosure and
communication of the grounds of detention and the affording of an
opportunity to the detenu of making a representation against such
an order to the appropriate government, is distinct from the reference
to the Advisory Board - In the instant case, in spite of awaiting the
receipt of the report of the Advisory Board which was eventually
issued on 15 June 2021, the State Government took another one
month in arriving at a decision on the appellant's representation
dated 18 May 2021 - By delaying its decision on the representation,
the State Government deprived the detenu of the valuable right which
emanates from the provisions of s.8(1) of having the representation
being considered expeditiously - The communication of the grounds
of detention to the detenu "as soon as may be" and the affording to
the detenu of the earliest opportunity of making a representation
against the order of detention to the appropriate government are
intended to ensure that the representation of the detenu is considered
by the appropriate government with a sense of immediacy - The
State Government failed to do so - The making of a reference to the
Advisory Board could not have furnished any justification for the
State Government to not deal with the representation independently
at the earliest - The delay by the State Government in disposing of
the representation and by the Central and State Government in
communicating such rejection, strikes at the heart of the procedural
rights and guarantees granted to the detenu - The law provides for
such procedural safeguards to balance the wide powers granted to
the executive under the NSA - State Government cannot expect this
Court to uphold its powers of subjective satisfaction to detain a
person, while violating the procedural guarantees of the detenu
that are fundamental to the laws of preventive detention enshrined
in the Constitution.
National Security Act, 1980: Failure to communicate

## Text

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SUPREME COURT REPORTS
[2021] 11 S.C.R.
[2021] 11 S.C.R. 468
468
SARABJEET SINGH MOKHA
v.
THE DISTRICT MAGISTRATE, JABALPUR & ORS.
(Criminal Appeal No. 1301 of 2021)
OCTOBER 29, 2021
[DR. DHANANJAYA Y CHANDRACHUD, VIKRAM NATH
AND B V NAGARATHNA, JJ.]
Constitution of India: Art.22(5) - Preventive detention -
Protection to undertrials and detainees - Held: Art.22(5) mandates
that (i) the authority making the order shall "as soon as may be"
communicate the grounds on which the order has been made to the
person detained; and (ii) the detaining authority shall afford to the
person detained "the earliest opportunity of making a representation
against the order" - Both these procedural requirements are mutually
reinforcing - The communication, as soon as may be, of the grounds
of detention is intended to inform the detenu of the basis on which
the order of detention has been made - The expression "as soon as
may be" imports a requirement of immediacy - The communication
of the grounds is in aid of facilitating the right of the detenu to
submit a representation against the order of detention - The
significance of Art.22 is that the representation which has been
submitted by the detenu must be disposed of at an early date.
National Security Act, 1980: s.3(4) - Report to the State
Government - Held: Once an order of detention is made, the officer
making the order must forthwith report the fact to the State
Government, together with the grounds on which the order has been
made and other particulars which have a bearing on the matter.
National Security Act, 1980: s.8(1) - Communication of
grounds of detention - Requirment of immediacy - Held: s.8(1) uses
the expression "as soon as may be", qualifying it with the requirement
that the communication of grounds should ordinarily not be later
than five days and, in exceptional circumstances, for reasons to be
recorded in writing not later than ten days from the date of detention
- s.8(1) also embodies the second requirement of Art.22(5) of
affording to the detenu the earliest opportunity of making a
representation against the order to the appropriate government -
Constitution of India - Art.22(5).
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National Security Act, 1980: s.8 - Delay in considering the
representation - The requirement under s.8 of the disclosure and
communication of the grounds of detention and the affording of an
opportunity to the detenu of making a representation against such
an order to the appropriate government, is distinct from the reference
to the Advisory Board - In the instant case, in spite of awaiting the
receipt of the report of the Advisory Board which was eventually
issued on 15 June 2021, the State Government took another one
month in arriving at a decision on the appellant's representation
dated 18 May 2021 - By delaying its decision on the representation,
the State Government deprived the detenu of the valuable right which
emanates from the provisions of s.8(1) of having the representation
being considered expeditiously - The communication of the grounds
of detention to the detenu "as soon as may be" and the affording to
the detenu of the earliest opportunity of making a representation
against the order of detention to the appropriate government are
intended to ensure that the representation of the detenu is considered
by the appropriate government with a sense of immediacy - The
State Government failed to do so - The making of a reference to the
Advisory Board could not have furnished any justification for the
State Government to not deal with the representation independently
at the earliest - The delay by the State Government in disposing of
the representation and by the Central and State Government in
communicating such rejection, strikes at the heart of the procedural
rights and guarantees granted to the detenu - The law provides for
such procedural safeguards to balance the wide powers granted to
the executive under the NSA - State Government cannot expect this
Court to uphold its powers of subjective satisfaction to detain a
person, while violating the procedural guarantees of the detenu
that are fundamental to the laws of preventive detention enshrined
in the Constitution.
National Security Act, 1980: Failure to communicate decision
on the representation - Art.22(4), in guaranteeing a right to make
a representation to the detenu creates a corresponding duty on the
State machinery to render this right meaningful - The detenu's right
to make a representation and for it to be considered expeditiously
would ring hollow without a corollary right of the detenu to receive
a timely communication from the appropriate government on the
status of its representation- be it an acceptance or a rejection -
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE,
JABALPUR & ORS.
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Failure in timely communication of the rejection of representation
is a relevant factor for determining the delay that the detenu is
protected against under Art.22(5) - Failure of the Central and the
State Government to communicate the rejection of the appellant's
representation in a time-bound manner is sufficient to vitiate the
order of detention.
Allowing the appeal, the Court
HELD: 1. Right to make a representation: Constitutional
safeguards and legislative scheme of the NSA
1.1 Article 22(5) of the Constitution mandates that (i) the
authority making the order shall "as soon as may be"
communicate the grounds on which the order has been made to
the person detained; and (ii) the detaining authority shall afford
to the person detained "the earliest opportunity of making a
representation against the order". Clause 5 of Article 22
incorporates a dual requirement: first, of requiring the detaining
authority to communicate the grounds of detention as soon as
may be; and second, of affording to the detenu "an earliest
opportunity" of making a representation. Both these procedural
requirements are mutually reinforcing. The communication, as
soon as may be, of the grounds of detention is intended to inform
the detenu of the basis on which the order of detention has been
made. The expression "as soon as may be" imports a requirement
of immediacy. [Para 21][491-E-F; 492-A]
1.2 The communication of the grounds is in aid of facilitating
the right of the detenu to submit a representation against the
order of detention. In the absence of the grounds being
communicated, the detenu would be left in the dark in regard to
the reasons which have led to the order of detention. The
importance which the constitutional provision ascribes to the
communication of the grounds as well as the affording of an
opportunity to make a representation is evident from the use of
the expression "as soon as may be" in the first part in relation to
communicating the grounds and allowing the detenu "the earliest
opportunity" of availing of the right to submit a representation.
Article 22(5) reflects a keen awareness of the framers of the
Constitution that preventive detention leads to the detention of
a person without trial and hence, it incorporates procedural
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safeguards which mandate an immediacy in terms of time. The
significance of Article 22 is that the representation which has
been submitted by the detenu must be disposed of at an early
date. The communication of the grounds of detention, as soon as
may be, and the affording of the earliest opportunity to submit a
representation against the order of detention will have no
constitutional significance unless the detaining authority deals
with the representation and communicates its decision with
expedition. [Para 22][492-B-E]
1.3 The provisions of the NSA subscribe to the mandate of
Article 22(5). Section 3(4) contains a requirement that once an
order of detention has been made, the officer making the order
must forthwith report the fact to the State Government, together
with the grounds on which the order has been made and other
particulars which have a bearing on the matter. No such order
should remain in force for more than twelve days, unless it has
been approved by the State Government. In the meantime, this
period is subject to the proviso which stipulates that where the
grounds of detention are communicated by the officer after five
days (under Section 8) but not later than ten days from the date
of the detention, sub-section (4) will apply as if the words fifteen
days stands substituted for twelve days. Upon the State
Government either making or approving the order under Section
3, it is under a mandate under Section 3(5) to report the fact to
the Central Government within seven days, together with the
grounds on which the order has been made and other necessary
particulars. [Para 23][492-E-H]
1.4 Under Section 10, the appropriate government has to
place the grounds on which the order of detention has been made
within three days from the date of detention of the person
together with a representation, if any, made by the person affected
by the order. The Advisory Board, under the provisions of Section
11, has to submit its report to the appropriate government within
seven weeks from the date of detention order after considering
the relevant materials. It may call for further information from
the appropriate government, or any person, or even the person
concerned if they desire an opportunity to be heard in person.
[Para 25][494-A-B]
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE,
JABALPUR & ORS.
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1.5 When the Advisory Board has reported that in its
opinion there is a sufficient cause for the detention of a person,
the appropriate government may approve an order of detention
and continue the detention of the person for such period as it
thinks fit. On the other hand, where the Advisory Board reports
that in its opinion there is insufficient cause for detention, the
appropriate government shall revoke the detention order and
cause the person to be released forthwith. In terms of clause (a)
and (b) of sub-section (1) of Section 14, both the State Government
and the Central Government have the power to revoke an order
of detention. [Paras 27, 29][494-F; 495-E]
2. Delay in considering the representation
2.1 The requirement under Section 8 of the disclosure and
communication of the grounds of detention and the affording of
an opportunity to the detenu of making a representation against
such an order to the appropriate government, is distinct from
the reference to the Advisory Board. [Para 33][496-C-D]
Jayanarayan Sukul v. State of West Bengal (1970) 1
SCC 219 : [1970] 3 SCR 225; Haradhan Saha v. State
of West Bengal (1975) 3 SCC 198 : [1975] 1 SCR 778;
K.M. Abdulla Kunhi v. Union of India (1991) 1 SCC
476 : [1991] 1 SCR 102 - followed
Frances Coralie Mullin v. W.C. Khambra (1980) 2 SCC
275 : [1980] 2 SCR 1095; Harish Pahwa v. State of
Uttar Pradesh (1981) 2 SCC 710 : [1981] 3 SCR 276;
Mohinuddin v. District Magistrate, Beed and Others
(1987) 4 SCC 58 : [1987] 3 SCR 668; Ankit Ashok
Jalan v. Union of India (2020) 16 SCC 127 : [2020] 2
SCR 1047; Haji Mohd. Akhlaq v. District Magistrate
1988 Supp. SCC 538, 540 - relied on.
2.2 In the present appeal, the order of detention was passed
on 11 May 2021 and the appellant was detained on 12 May 2021.
The order of detention was approved by the State Government
on 13 May 2021, upon which the State Government submitted
the order of detention to the Central Government on the same
day. On 18 May 2021, the detenu submitted a simultaneous
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representation before the District Magistrate, State Government
and the Central Government. The representation was
communicated by the District Magistrate to the State Government
and the Central Government on 20 May 2021. According to the
appellant, the records of the Department of Post and Telegraph
indicate that service was effected on the Central Government on
24 May 2021. However, the Central Government, in its counter
affidavit before the High Court, has submitted that it was received
in the concerned section on 1 June 2021. [Para 41][503-F-G]
2.3 On 2 June 2021, the Central Government sought parawise comments from the detaining authority. The District
Magistrate forwarded comments on 10 June 2021 which were
received on 11 June 2021. The representation made by the
appellant dated 18 May 2021, along with the comments of the
District Magistrate, were processed for consideration by the
Union Home Secretary on 14 June 2021. On 24 June 2021, the
Union Home Secretary rejected the representation of the
appellant, which is alleged to have been communicated by a
wireless message to the detenu on 28 June 2021. 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. [Para 42][504-A-C]
2.4 The appellant had also submitted a representation
against the order of detention to the State Government on 18
May 2021. An additional reply was filed by the District Magistrate
on 12 August 2021 before the High Court. The District Magistrate
having received the representation on 18 May 2021,
communicated it to the State Government and the Central
Government on 20 May 2021. The State Government rejected
the representation, after the decision of the Advisory Board. Until
the representation was rejected by the Advisory Board on 15
June 2021, no steps had been taken by the State Government to
deal with the appellant's representation dated 18 May 2021. In
the counter-affidavit of the District Magistrate before this Court
as well as in the written submissions supplied by the AAG, it
appears that the representation was rejected by the State
Government on 15 July 2021. However, this Court has neither
been provided with a copy of such rejection or proof of
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE,
JABALPUR & ORS.
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SUPREME COURT REPORTS
[2021] 11 S.C.R.
communication of this rejection to the detenu, nor an explanation
for the almost 60 day delay in considering the appellant's
representation. [Paras 43, 44][504-C-D, G-H; 505-A-C]
2.5 There is absolutely no reasonable basis for explaining
the circumstances in which the representation dated 18 May 2021
was not considered by the State Government until after the
Advisory Board had submitted its report on 15 June 2021. The
consideration of the representation by the State Government is
qualitatively different from the reference to the Advisory Board.
This Court, Ankit Ashok Jalan had held that in State Government
is not bound to wait on the Advisory Board's report before
deciding the representation and must do so, as expeditiously as
possible. In spite of awaiting the receipt of the report of the
Advisory Board which was eventually issued on 15 June 2021,
the State Government took another one month in arriving at a
decision on the appellant's representation dated 18 May 2021.
The State Government did not furnish any valid reasons for either
of the two courses of action. [Para 45][505-C-E]
2.6 By delaying its decision on the representation, the
State Government deprived the detenu of the valuable right
which emanates from the provisions of Section 8(1) of having
the representation being considered expeditiously. The
communication of the grounds of detention to the detenu "as
soon as may be" and the affording to the detenu of the earliest
opportunity of making a representation against the order of
detention to the appropriate government are intended to ensure
that the representation of the detenu is considered by the
appropriate government with a sense of immediacy. The State
Government failed to do so. The making of a reference to the
Advisory Board could not have furnished any justification for the
State Government to not deal with the representation
independently at the earliest. The delay by the State Government
in disposing of the representation and by the Central and State
Government in communicating such rejection, strikes at the heart
of the procedural rights and guarantees granted to the detenu.
The law provides for such procedural safeguards to balance the
wide powers granted to the executive under the NSA. The State
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Government cannot expect this Court to uphold its powers of
subjective satisfaction to detain a person, while violating the
procedural guarantees of the detenu that are fundamental to the
laws of preventive detention enshrined in the Constitution.
[Para 46][505-F-H; 506-A-B]
3. Failure to communicate decision on the representation
3.1 The respondent could not furnish proof of the appellant's
receipt of the Central Government's rejection of representation
dated 24 June 2021. The wireless message dated 28 June 2021,
issued from the Ministry of Home Affairs of the Central
Government to the Home Department of the State Government,
communicated the rejection of the representation submitted by
the detenu. The SP of the Central Jail, Jabalpur was directed to
serve a copy meant for the detenu. The State Government was
also directed to inform the detenu. Though in the writ petition as
it was originally filed, there was no specific ground that the
rejection of the representation was not communicated to the
detenu, a specific ground to that effect was raised in the rejoinder
filed before the High Court. There is absolutely no material
coming forthwith to indicate that the rejection of the
representation by the Central Government was communicated
to the detenu. [Para 47][506-D-F]
3.2 Article 22(4), in guaranteeing a right to make a
representation to the detenu, understandably creates a
corresponding duty on the State machinery to render this right
meaningful. The detenu's right to make a representation and for
it to be considered expeditiously would ring hollow without a
corollary right of the detenu to receive a timely communication
from the appropriate government on the status of its
representation- be it an acceptance or a rejection. [Para 49]
[507-B-C]
State of Punjab v. Sukhpal Singh (1990) 1 SCC 35 :
[1989] 1 Suppl. SCR 420; Madan Lal Anand v. Union
of India (1990) 1 SCC 81 : [1989] 1 Suppl. SCR 733 -
relied on.
Union of India v. Saleena (2016) 3 SCC 437 : [2016] 1
SCR 373 - held inapplicable
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE,
JABALPUR & ORS.
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3.3 The AAG has furnished no reasons for the failure to
communicate the State Government or Central's government
rejection of the appellant's representation. This failure in timely
communication of the rejection of representation is a relevant
factor for determining the delay that the detenu is protected
against under Article 22(5). Accordingly, the order of detention
is invalidated on two grounds: first, the unexplained delay on part
of the State Government in deciding the representation of the
appellant and second, the failure of the Central and State
Governments to communicate the rejection of the representation
to the appellant in a timely manner. Once the order of detention
stands invalidated, the consequential extensions would follow the
same course. [Paras 54, 55][509-F-G; 510-A-C]
Ankit Ashok Jalan v. Union of India 2020 (16) SCC
127 : [2020] 2 SCR 1047; Harish Pahwa v.State of
Uttar Pradesh 1981(2) SCC 710: [1981] 3 SCR 276;
Raj Kishore Prasad v. State of Bihar 1982 (3) SCC 10;
Wasiuddin Ahmed v. District Magistrate, Aligarh 1981
(4) SCC 521 : [1964] 8 SCR 295; Biren Dutta v. Chief
Commissioner of Tripura AIR 1965 SC 596; Khaja Bilal
Ahmed v. State of Telangana 2020 (13) SCC 632; Anshul
Jain v. The State of Madhya Pradesh WP No. 1118 of
2021; Ghanshyam Upadhyay v. State of Uttar Pradesh
2020 (16) SCC 811; Tanveer Patel v. State of Madhya
Pradesh 2020 SCC Online MP 2021; Khaja Bilal
Ahmed v. State of Telangana 2020 (13) SCC 632; Sama
Aruna v. State of Telangana (2018) 12 SCC 150 : [2017]
4 SCR 52; Ramesh Yadav v. District Magistrate Etah
(1985) 4 SCC 232; Lakshman Khatik v. State of West
Bengal (1974) 4 SCC 1; Yumman Ongbi Lembi Liema v.
State of Manipur (2012) 2 SCC 176 : [2012] 1 SCR 1;
Rameshwar Shaw v. District Magistrate Burdwan AIR
1964 SC 334 : [1964] 4 SCR 921; Ramveer Jatav v.
State of Uttar Pradesh (1986) 4 SCC 726; Vijay Narain
Singh v. State of Bihar (1984) 3 SCC 14 : [1984] 3
SCR 435; PP Rukhiya v. Joint Secretary (2019) 20 SCC
740; Pebam Ningol Mikoi Devi v. State of Manipur 2010
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(9) SCC 618 : [2010] 12 SCR 429; Rajendra Singh v.
State of Uttar Pradesh 2007 (7) SCC 378 : [2007] 8
SCR 834; Mohinder Singh Gill v. Chief Election
Commissioner, New Delhi (1978) 1 SCC 405 : [1978] 2
SCR 272; Rameshwar Shah v. District Magistrate
[1964] 4 SCR 921; State of Punjab v. Sukhpal Singh
(1990) 1 SCC 35 : [1989] 1 Suppl. SCR 420; Pebam
Ningol Mikoi Devi v. State of Manipur (2010) 9 SCC
618 : [2010] 12 SCR 429; State of Tamil Nadu v. Nabila
(2015) 12 SCC 127: [2014] 12 SCR 405; Subhash
Bhandari v. District Magistrate (1987) 4 SCC 685 :
[1988] 1 SCR 773; David Patrick Ward v. Union of
India (1992) 4 SCC 154 : [1992] 1 Suppl. SCR 26;
Shafiq Ahmed v. District Magistrate (1989) 4 SCC 556
: [1989] 1 Suppl. SCR 56 - referred to.
Case Law Reference
1982 (3) SCC 10
referred to
Para 14 (iii)
[1964] 8 SCR 295
referred to
Para 14 (iii)
AIR 1965 SC 596
referred to
Para 14 (v)
2020 (13) SCC 632
referred to
Para 14 (v)
2020 (16) SCC 811
referred to
Para 14 (viii)
2020 (13) SCC 632
referred to
Para 14 (ix)
[2017] 4 SCR 52
referred to
Para 14 (ix)
(1985) 4 SCC 232
referred to
Para 14 (ix)
(1974) 4 SCC 1
referred to
Para 14 (ix)
[2012] 1 SCR 1
referred to
Para 14 (ix)
[1964] 4 SCR 921
referred to
Para 14 (ix)
(1986) 4 SCC 726
referred to
Para 14 (x)
[1984] 3 SCR 435
referred to
Para 14 (x)
(2019) 20 SCC 740
referred to
Para 14 (xi)
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE,
JABALPUR & ORS.
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[2021] 11 S.C.R.
[2010] 12 SCR 429
referred to
Para 14 (xii)
[2007] 8 SCR 834
referred to
Para 14 (xii)
[1978] 2 SCR 272
referred to
Para 14 (xiii)
[1964] 4 SCR 921
referred to
Para 15 (ii)
[1989] 1 Suppl. SCR 420
referred to
Para 15 (ii)
[2010] 12 SCR 429
referred to
Para 15 (ii)
[2014] 12 SCR 405
referred to
Para 15 (iii)
[1988] 1 SCR 773
referred to
Para 15 (v)
[1992] 1 Suppl. SCR 26
referred to
Para 15 (v)
[1989] 1 Suppl. SCR 56
referred to
Para 15 (vi)
[1970] 3 SCR 225
followed
Para 33
[1975] 1 SCR 778
followed
Para 34
[1980] 2 SCR 1095
relied on
Para 35
[1991] 1 SCR 102
followed
Para 35
[1981] 3 SCR 276
relied on
Para 37
[1987] 3 SCR 668
relied on
Para 38
[2020] 2 SCR 1047
relied on
Para 39
(1988) Supp. SCC 538
relied on
Para 40
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.1301 of 2021.
From the Judgment and Order dated 24.08.2021 of the High Court
of Madhya Pradesh, Bench at Indore in WP No.10085 of 2021.
Sidharth Luthra, Sr. Adv., Ashwani Kumar Dubey, Manish Kumar,
Akshat Kumar, Lakshay Mehta, Ms. Ankita Tiwari, Mayank Nagar, Advs.
for the Appellant.
Saurabh Mishra, AAG, Ms. Ankita Choudhary, Dy. AG, Sunny
Choudhary, Advs. for the Respondents.
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The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
A
Facts.........................................................................3
B
Submissions of counsel.............................................9
C
Right to make a representation: Constitutional
safeguards and legislative scheme of the NSA..........17
D
Analysis..................................................................25
D.1
Delay in considering the representation................25
D.2
Failure
to
communicate
decision
on
the
representation.........................................................38
E
Conclusion..............................................................43
1. By a judgment dated 24 August 2021, a Division Bench at the
Indore Bench of the High Court of Madhya Pradesh rejected a petition
under Article 226 of the Constitution of India challenging a detention
order passed against the appellant under Section 3(2) of National Security
Act 19801. The detenu is in appeal.
A Facts
2. The appellant is a Director of City Hospital, Jabalpur. On 10
May 2021, FIR No. 252/2021 was registered at Police Station Omti,
Jabalpur under Sections 274, 275, 308, 420 and 120B of the India Penal
Code 18602; Section 53 of the Disaster Management Act 2005; and
Section 3 of the Epidemic Diseases Act 1897.The appellant was arrested
in connection with the FIR on 26 May 2021.After the investigation, a
final report under Section 173 of the Code of Criminal Procedure 19733
was submitted on 6 August 2021. The allegation against the appellant is
that in connivance with certain others, he procured fake Remdesivir
injections which were administered to patients during the Covid-19
pandemic in order to make illegal profits thereby endangering the life of
the general public.
3. On 12 May 2021, the appellant was detained in pursuance of
an order of detention dated 11 May 2021 under Section 3(2) of the NSA,
for a period of three months.
1 "NSA"
2 "IPC"
3 "CrPC"
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE,
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4. It is alleged that the Police Station of 'B' Division in District
Morbi of Gujarat seized fake Remdesivir injections from a factory where
they were manufactured and an FIR was registered in that regard. On
10 May 2021, the statement under Section 161 of the CrPC of a coaccused by the name of Devesh Chaurasia, who was running a pharmacy
in the hospital owned by the appellant, was recorded to the effect that
the appellant had procured fake Remdesivir injections without a bill. The
appellant is said to have collected the injections through a person named
Prakhar Kohli from Indore, who sent the cartons through a transporter
called Amba Travels. The fake Remdesivir injections were stated to
have been administered to 50 patients at the City Hospital on 30 April
2021. In his statement under Section 161 of the CrPC recorded on 10
May 2021, Prakhar Kohli stated that the appellant's son had on 21 April
2021 asked him to send the fake Remdesivir injections from Indore to
Jabalpur. Prakhar Kohli was made to speak to the appellant in that
connection. Prakhar Kohli is stated to have sent the fake injections through
Amba Travels, and these injections were received at Jabalpur by the coaccused, Devesh Chaurasia, on behalf of the appellant.
5. On 11 May 2021, the Superintendent of Police, Jabalpur4 made
a request to the District Magistrate to take action against the appellant
under the NSA. The SP reiterated the allegations against the appellant
of having procured and administered fake Remdesivir injections to Covid19 patients. The appellant is alleged to have procured 500 injections
worth Rs.15 lakhs. The SP stated that the newspapers had widely
reported that there was a public outcry following the appellant's actions,
which were likely to disturb the public order. Following the
recommendation of the SP, the District Magistrate passed an order on
11 May 2021 under Section 3(2) of the NSA, detaining the appellant for
a period of three months. The grounds of detention which were supplied
to the appellant were to the following effect:
(i)
Spurious Remdesivir injections had been administered to
patients which resulted in several untimely deaths;
(ii)
The spurious injections had caused casualties which had
been reported in the newspapers;
(iii)
There was anger and resentment in the public in Jabalpur
and its adjoining districts which may explode at any time;
4 "SP"
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(iv)
The appellant had criminal antecedents but had been
acquitted in certain cases due to his 'money power'. The
criminal cases against the appellant were:
(a)
FIR No. 252 of 2021 dated 10 May 2021, relating to
the sale of spurious Remdesivir injections in the midst
of the Covid-19 pandemic;
(b)
Crime No. 400 of 2004 dated 23 May 2004 under
Sections 395, 397, and 120B of the IPC, and Sections
25 and 27 of the Arms Act 1959 registered at Police
Station Gorakhpur, in which the appellant was
accused of attacking a person with deadly weapons.
The appellant was acquitted in this case;
(v)
City Hospital and Research Centre owned by the appellant
had ordered 500 fake Remdesivir injections worth Rs.15
lakhs at the rate of Rs.3,000/- per piece by an invoice no.
0063 dated 20 April 2021, which were procured by means
of fake bills from a manufacturing company situated in
Gujarat against whom an FIR had been registered by the
Gujarat Police;
(vi)
A public agitation and outcry had spread across the city of
Jabalpur with news items being published leading to an
apprehension of a law-and-order situation in the area;
(vii)
Fake injections had been procured from Indore and arrived
in Jabalpur through Amba Travels in collusion with Devesh
Chaurasia and the payment for these injections was made
by one Sapan Jain;
(viii) In the wake of the Covid-19 pandemic, several cases were
reported where the patients needed Remdesivir injections;
and
(ix)
Cheating patients for administering fake essential drugs is
a punishable offence.
6. The order of detention was communicated to the appellant on
11 May 2021. The appellant was detained on 12 May 2021. The
Government of Madhya Pradesh5 approved the order of detention on 13
May 2021 in terms of the provisions of Section 3(4) of the NSA. The
5 "State Government"
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE,
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State Government submitted a report in regard to the order of detention
to the Government of India6 on 13 May 2021. On 18 May 2021, the
appellant submitted a representation7 against the order of detention both
to the Home Department of the State Government and the Ministry of
Home Affairs of the Central Government. In terms of the provisions of
Section 10 of the NSA, the State Government submitted the grounds for
detention and the representation of the appellant to the Advisory Board
constituted under Section 10. The Advisory Board submitted its report
to the State Government under Section 11 on 15 June 2021 opining that
there was sufficient cause for the detention of the appellant.
7. In its affidavit submitted before the High Court, the Central
Government stated that it rejected the representation of the appellant on
24 June 2021, which was communicated to the Superintendent of the
Jail and the State Government by a wireless message on 28 June 2021.
Pursuant to the report of the Advisory Board, the State Government
approved the order of detention, under Section 12(1), on 29 June 2021.
8. On 29 June 2021, the SP recommended to the District Magistrate
to extend the order of detention which had initially been passed for a
period of three months. By an order dated 5 July 2021, the District
Magistrate Jabalpur8 extended the detention of the appellant by a further
period of three months, to end on 12 November 2021 and forwarded the
order of extension to the State Government.
9. Meanwhile, on 3 July 2021, the appellant instituted a petition
under Article 226 of the Constitution to challenge the order of detention.
The writ petition before the High Court was amended to challenge boththe original order of detention dated 11 May 2021 as well as the extension
dated 5 July 2021.
10. On 15 July 2021, the State Government allegedly rejected the
first representation of the appellant and extended the order of detention
till 12 November 2021. The District Magistrate, by a letter dated 22 July
2021, informed the appellant, who was in custody, of the extension of
the order of detention by the State Government. Another representation9
of the appellant against the extension of his detention was rejected by
the State Government on 5 August 2021 and was communicated to the
appellant by the District Magistrate on the same day.
6 "Central Government"
7 "first representation"
8 "District Magistrate"
9 "second representation"
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11. The writ petition of the appellant was dismissed by the High
Court by the impugned judgment on 24 August 2021. The Division Bench
of the High Court, in upholding the detention order, inter alia, observed
that:
(i) There was no undue delay in sending the order of detention to
the State Government, as the order was passed on 11 May
2021 and was sent to the State Government on 13 May
2021;
(ii)
A singular solitary act, of administering fake Remdesivir
injections in the present case, is sufficient to attract Section
3 of the NSA;
(iii)
The detention order as well as the affidavit before the High
Court reflect the subjective satisfaction of the authorities in
invoking Section 3 of the NSA; and
(iv)
The District Magistrate had applied their mind to the SP's
recommendation regarding the detention of the appellant,
and the detention order was not passed mechanically,
without reason.
12. Following the dismissal of the writ petition by the High Court,
the appellant moved this Court in proceedings under Article 136 of the
Constitution. Notice was issued by this Court on 20 September 2021.
13. During the pendency of the proceedings, by an order dated 30
September 2021, the order of detention has been extended for a further
period of three months, ending on 12 February 2022.
B Submissions of counsel
14. Mr Sidharth Luthra, senior counsel appearing on behalf of the
appellant, has urged the following arguments:
(i)
On 18 May 2021, the appellant's son had made a
representation to the District Magistrate, the State
Government and the Central Government, against the
detention order dated 11 May 2021:
(a)
The Central Government incorrectly averred before
the High Court that the rejection of representation
dated 24 June 2021 was communicated to the
appellant by wireless message on 28 June 2021. The
Central Government furnished a copy of their rejection
of representation dated 24 June 2021, only in the form
SARABJEET SINGH MOKHA v. THE DISTRICT MAGISTRATE,
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of an annexure in their counter affidavit dated 26
July 2021 to the appellant's writ petition before the
High Court; and
(b)
The appellant's representation dated 18 May 2021
was forwarded by the District Magistrate on 20 May
2021 and received by the Central Government on 24
May 2021. Thereafter, the Central Government
sought para-wise comments from the District
Magistrate and the State Government on 2 June 2021.
The Central Government's wireless message dated
28 June 2021 rejecting the representation by order
dated 24 June 2021, directed the Jail Superintendent
to forward the appellant's acknowledgement. The
respondents do not have a copy of this
acknowledgement since the appellant has never
received the rejection of his representation;
(ii)
The State Government also did not furnish a reply to the
appellant's representation, allegedly rejected by it on 15 July
2021,except in its additional reply that was filed before the
High Court on 12 August 2021;
(iii)
This Court has held that a delay in considering a detenu's
representation could be fatal to the detention order in Ankit
Ashok Jalan v. Union of India10, Harish Pahwa v. State
of Uttar Pradesh11, Raj Kishore Prasad v. State of
Bihar12 and Wasiuddin Ahmed v. District Magistrate,
Aligarh13.
(iv)
The appellant was not served with a copy of the State
Government's approval of the detention order dated 13 May
2021;
(v)
Approval of the detention order and communication of the
rejection of representation should be made forthwith,
according to this Court's decisions in Biren Dutta v. Chief
Commissioner of Tripura14 and Khaja Bilal Ahmed v.
State of Telangana;15
10 2020 (16) SCC 127
11 1981 (2) SCC 710
12 1982 (3) SCC 10
13 1981 (4) SCC 521
14 AIR 1965 SC 596
15 2020 (13) SCC 632
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(vi)
The High Court of Madhya Pradesh in Anshul Jain v.
The State of Madhya Pradesh16 interpreted Section 3(5)
of the NSA Act to hold that original record produced from
the office of the District Magistrate should contain the exact
date of dispatch and receipt by the Central Government of
the order of approval of the State Government along with
grounds. In this case, the Central Government had to seek
the aforementioned report from the District Magistrate;
(vii)
The extension of the appellant's detention under the NSA
on 15 July 2021 for alleged black-marketing of Remdesivir
is illegal, since the Explanation to Section 3(2) of the NSA
states that no order of detention can be made under it if the
order can be made under Prevention of Black Marketing
& Maintenance of Supplies of Essential Commodities Act
1980;
(viii) The appellant has relied on this Court's decisions in
Ghanshyam Upadhyay v. State of Uttar Pradesh17 and
the Madhya Pradesh High Court's decision in Tanveer
Patel v. State of Madhya Pradesh18 to argue that mere
allegations of media outrage or purported public agitation
cannot be the basis of detention. Furthermore, since an order
under Section 144 of the CrPC was in force at the time, the
ground of public order could not be justified for detention;
(ix)
The appellant was acquitted by the trial court in Case Crime
No. 400/2004 and Case Challan No. 547/2004 under
Sections 395, 397, 120 of the IPC and Sections 25, 27 Arms
Act at PS Gorakhpur. Yet, the detention order dated 11 May
2021 has relied upon this past antecedent without it having
any live or proximate link with the present allegations. This
stale reliance on past antecedents to justify detention is in
breach of this Court's decisions in Khaja Bilal Ahmed v.
State of Telangana,19 Sama Aruna v. State of
Telangana,20Ramesh Yadav v. District Magistrate
16 WP No. 1118 of 2021
17 2020 (16) SCC 811
18 2020 SCC Online MP 2021
19 2020 (13) SCC 632
20 (2018) 12 SCC 150
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Etah,21 Lakshman Khatik v. State of West Bengal,22
Yumman Ongbi Lembi Liema v. State of Manipur23
and Rameshwar Shaw v. District Magistrate
Burdwan24;
(x)
The detention is based on a solitary action and ought to be
set aside, as held by this Court in Ramveer Jatav v. State
of Uttar Pradesh25 and Vijay Narain Singh v. State of
Bihar26;
(xi)
A mere apprehension of the grant of bail in the FIR cannot
be the cause for detention, as held by this Court in PP
Rukhiya v. Joint Secretary27.In any event, this
apprehension is unfounded since the appellant has not
applied for bail;
(xii)
There is no substantial evidence of death/harm due to the
allegedly fake Remdesivir injections procured by the
appellant. As held by this Court in Pebam Ningol Mikoi
Devi v. State of Manipur28 and Rajendra Singh v. State
of Uttar Pradesh29, statements recorded under Section
161 of the CrPC cannot be relied on to pass a detention
order;
(xiii) In view of this Court's decision in Mohinder Singh Gill v.
Chief Election Commissioner, New Delhi30, the validity
of the detention has to be seen on the grounds in the original
detention order and cannot be supplemented by additional
grounds;
(xiv) The extension of the order of detention on 15 July 2021 and
30 September 2021 is on vague and unjustifiable grounds.
This violates the appellant's right to life and personal liberty
under Article 21; and
21 (1985) 4 SCC 232
22 (1974) 4 SCC 1
23 (2012) 2 SCC 176
24 AIR 1964 SC 334
25 (1986) 4 SCC 726
26 (1984) 3 SCC 14
27 (2019) 20 SCC 740
28 2010 (9) SCC 618
29 2007 (7) SCC 378
30 (1978) 1 SCC 405
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(xv)
The appellant had tested positive for Covid-19 and suffered
a heart attack on 6 May 2021. Despite the appellant's critical
health condition and medical advice, he was detained on 12
May 2021.
15.