The Allahabad High Court allowing the petition said that once an order under Section 12 (1) is passed by the State Government prescribing a period of detention, the said order cannot be reviewed or extended by the State Government.
The Division Bench of Justice Siddhartha Varma and Justice Anish Kumar Gupta passed this order while hearing a Habeas Corpus Petition filed by Mohd Asim @ Pappu Smart and Another.
The petition has been filed seeking quashing of the detention order dated 20.4.2023 passed by the respondent no 3 -District Magistrate, Kanpur Nagar, the order dated 27.4.2023 passed by the respondent no 2, order dated 9.5.2023 passed by the respondent no 3 order dated 16.5.2023, the order dated 25.5.2023 passed by the respondent no 1 and the order dated 5.6.2023 passed by the respondent no 2.
The facts of the case are that the petitioner no 1 herein was detained vide order dated 20.4.2023 passed by the District Magistrate- Kanpur Nagar under section 3(2) of the National Security 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 27.4.2023 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 9.5.2023 whereby the petitioner was detained for a period of three months from the date of initial detention order i.e 20.4.2023. The detention of the petitioner no 1 herein was again extended vide order dated 13.7.2023 for a period of six months from the date of initial detention.
Thereafter again the petitioner’s detention has been extended vide order dated 12.10.2023 for nine months from the date of initial detention. Again vide order dated 5.1.2024 the detention of the petitioner no 1 has been extended for a period of 12 months from the date of his initial detention i.e 20.4.2023.
Counsel for the petitioner contends that since the order dated 9.5.2023 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 orders extending detention of the petitioner are without any authority of law and could not be sustained. Therefore, the detention of the petitioner (detenue) herein in terms of orders dated 13.7.2023, 12.10.2023 and 5.1.2024 after the expiry of three months from the date of initial detention are illegal and therefore, the petitioner is liable to be released forthwith.
Per contra, A.G.A submitted that in view of the judgement of the Apex Court in Cherukuri Mani v State of A.P, reported in (2015) 13 SCC 722, the State Government could not have passed an order of detention at a time for more than a period of three months, therefore, initially the confirmatory order dated 9.5.2023 was passed for detention of the petitioner herein for a period of three months and subsequently, the same was extended vide orders dated 13.7.2023, 12.10.2023 and 5.1.2024. Therefore, there is no illegality either in the initial detention order dated 20.4.2023 and the confirmatory order dated 9.5.2023 and the subsequent extension orders dated 13.7.2023, 12.10.2023 and 5.1.2024.
The Court observed that,
The Court has also recently dealt with elaborately this issue in Habeas Corpus Writ Petition (Niyaz Ansari Vs State of U.P and others) and Habeas Corpus Writ Petition (Sunil chachuda Vs State of U.P and others) and has following the judgement of the Supreme Court in Pesala Nookaraju (supra) held that once the confirmatory order of detention passed under Section 12 (1) of the Act is a final order, the State Government has no authority to review its order. If in the confirmatory order any particular period of detention is prescribed by the State Government such detention order is valid only for that period. If no period of detention is prescribed in an order passed under Section 12 (1) of the Act, then, such detention will be for a maximum period of 12 months as prescribed under Section 13 of the Act.
However, once an order under Section 12 (1) is passed by the State Government prescribing a period of detention, the said order cannot be reviewed or extended by the State Government. Such detention will be over after the expiry of the period prescribed in the confirmatory order passed under Section 12(1) of the Act. The said order cannot be reviewed or extended any further. However, the Detaining Authority i.e, the State Government or the District Magistrate, may pass a fresh order in terms of Section 3(2) of the Act, if the circumstances demand. Such a detention order has to be confirmed again following the procedure prescribed under Sections 3, 10, 11 and 12 of the Act.
“In the case, the confirmatory order has been passed on 9.5.2023 whereby the petitioner herein was directed to be detained for a period of three months from the initial detention order i.e 20.4.2023. 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.
Therefore, The Court directed the petitioner no 1 Mohd Asim @ Pappu Smart (the detenue) to be set at liberty forthwith unless he is required in any other case.