The Allahabad High Court while allowing the Habeas Corpus Petition said that the State Government need not to review the orders of detention every three months after it has passed the confirmatory order.
The Division Bench of Justice Siddhartha Varma and Justice Anish Kumar Gupta passed this order while hearing a Habeas Corpus Petition filed by Abbas Ansari.
The petition has been filed seeking quashing of the detention order dated 18.9.2023 passed by the respondent no 2-District Magistrate, Chitrakoot under section 3(2) of the National Security Act, 1980, which was subsequently confirmed by the State Government vide order dated 2.11.2023 for a period of three months from the date of the detention of the petitioner i.e from 18.9.2023.
Thereafter, the said detention order was again extended on 11.12.2023 by the State Government for a period of six months with effect from 18.9.2023.
The facts of the case are that the petitioner herein was detained vide order dated 18.9.2023 passed by the District Magistrate- Chitrakoot, under Section 3(2) of the Act, 1980 having been authorised under Section 3(3) of the Act, 1980.
The said order was approved by the State Government under Section 3(4) of the Act, 1980 on 25.9.2023 and the matter was referred to the Advisory Board. After receiving the report from the Advisory Board, the said detention order was confirmed in terms of Section 12 (1) of the Act, 1980 by the State Government on 2.11.2023 whereby the petitioner was detained for a period of three months from the date of initial detention order i.e 18.9.2023. The detention of the petitioner herein was again extended vide order dated 11.12.2023 for a period of six months from the date of initial detention.
Counsel for the petitioner contends that since the order dated 2.11.2023 passed under Section 12(1) of the Act, 1980 is a final order, the State has no right to review the said order in terms of provisions of Section 12 of the Act, 1980, therefore, the order extending detention of the petitioner is without any authority of law and could not be sustained. Therefore, the detention of the petitioner herein in terms of order dated 11.12.2023 after the expiry of three months from the date of initial detention is illegal and therefore, the petitioner is liable to be released forthwith.
The Court observed that,
As per the provisions of Section 3(2) of the Act, 1980 if the Central Government or the State Government, as the case may be, if is satisfied in respect of any person with a view to prevent him from acting in any manner prejudicial to the maintenance of public order and it records its satisfaction that it is necessary so to make an order, then, it can pass an order directing that such a person be detained. As per Section 3(3) of the Act,1980 the State Government may delegate such powers of detention to the District Magistrate or the Commissioner of Police.
In view of such delegation of the powers, the District Magistrate or the Commissioner of Police, as the case may be, is empowered to pass an order under Section 3(2) of the Act,1980. Such delegation of powers to the District Magistrate or the Commissioner of Police shall not be made at a given point of time for a period exceeding three months.
As per Section 3(4) of the Act,1980 the officer who is delegated power of detention under Section 3(3) of the Act,1980 is directed to forthwith report the fact of such detention to the State Government concerned alongwith grounds of such detentions and no such order shall remain in force for more than 12 days, unless it is approved by the concerned State Government.
When the order of approval by the State Government is passed within the aforesaid period of 12 days, the State Government shall report the fact of such detention within 7 days from the date of approval of detention to the Central Government together with the grounds of detention and other relevant particulars.
As per Section 10 of the Act,1980 the concerned Government is mandated to place the matter within a period of three weeks before the Advisory Board constituted by it in terms of Section 9 of the Act, 1980 alongwith grounds of detention and other relevant documents.
As per Section 11 of the Act, 1980 the Advisory Board, after considering the material placed before it and after calling for such other information as it may deem necessary and also after hearing the detenue, if he denies to be heard, shall submit its report to the concerned Government within 7 weeks from the date of detention of the person concerned.
The Advisory Board shall also record its satisfaction whether there is or not any sufficient cause for the detention of the concerned person. After receipt of the report of the Advisory Board the concerned Government may pass an order confirming the detention order and may continue the detention of the persons concerned for such period as it thinks fit. In terms of Section 13 of the Act, 1980, maximum period of detention under the provisions of the Act, 1980 shall be 12 months from the date of detention.
“In the case, the confirmatory order has been passed on 2.11.2023, whereby the petitioner herein was directed to be detained for a period of three months from the initial detention order i.e, 18.9.2023. Therefore, after the expiry of three months the petitioner’s detention becomes illegal and he is liable to be released forthwith”, the Court further observed while allowing the petition.
“It is declared that the detention of the petitioner herein subsequent to the expiry of three months from 18.9.2023 as per the confirmatory order passed under section 12(1) of the Act, 1980 is illegal and the subsequent orders extending the detention of the petitioner herein is also illegal and not in accordance with law. Therefore, the order dated 11.12.2023 extending the period of detention of the petitioner herein is hereby set-aside.
We, therefore, direct the petitioner, Abbas Ansari (the detenue) to be set at liberty forthwith unless he is required in any other case”, the Court ordered.