Act No. 65 of 1980 published on 27th December, 1980
An Act to provide for preventive detention in certain cases and for matters connected therewith.
Hetchin Haokip v. State of Manipur,2018 SCC Online SC 713, dated 20-07-2018
Akash Yadav vs The State Of Madhya Pradesh on 12 April, 2019
HIGH COURT OF MADHYA PRADESH : JABALPUR.
DB : Hon'ble Shri Justice J.K. Maheshwari &
Hon'ble Shri Justice Rajendra Kumar Srivastava
As per the spirit of Article 22 (4) and (7) of the Constitution, the law
regarding preventive detention as specified under Section 3 of the NSA Act
spell out the distinction in class or classes of the cases. Thus, to pass
the order of preventive detention, the procedural boundations to make such
order valid are described as under :-
(i) If the order is passed in exercise of the power under sub-section (1)(a)(b) and sub-section (2) of Section 3 of the NSA Act, the specification of the period of detention in the order is not necessary.
(ii) If the order is passed under sub-section (3) by the State Government looking to the circumstances prevailing in any area within the local limits of jurisdiction of a District, the period for which the detention is directed, must be specified in the order and the period shall not longer than three months at first blush.
(iii) If the power has been exercised by the District Magistrate or the Police Commissioner, as the case may be, looking to the circumstances prevailing within the local limits of jurisdiction, the said order shall remain in operation for a period of 12 days or 15 days, as the case may be, subject to affirmation/approval by the State Government in the meantime and in the order of approval passed by the State Government it shall specify the period of detention i.e. three months.
(iv) The order passed by the State Government for initial period of three months may further be extended for the reasons to be recorded for any one time.
(v) On passing the order either under sub-section (1)(a)(b) and sub-section (2) or sub-section (3) of Section 3 of the NSA Act, the procedure as prescribed under Sections 8, 9, 10, 11, 12 of the NSA Act, must be necessarily followed to pass an order of confirmation and to detain a person for a maximum period of one year
(vi) The Parliament by bringing the National Security Act, 1980 has specified the class and classes enumerated in sub-section (1)(a)(b) and (2) of Section 3 of the NSA Act, therefore, if the power is exercised for the said class or classes by the authority, non specification of time of three months would not vitiate the order on the said pretext.
(vii) Law & order and Public Order are two different domain, therefore, registration of a singular case against any individual may come within the purview of Law & Order until his activities cumulatively affects the public at large to bring it within the purview of Public Order.
(viii) Personal liberty of a citizen is his fundamental right and to hamper the said personal liberty is an exception for which the procedure prescribed in the law should be strictly followed and it cannot be diluted looking to the nature of the activity of detenue.
(ix) It is the duty of the prosecution to inform about the rights of detenue to submit the representation to the State Government and to afford him an opportunity of hearing before the Board otherwise it would vitiate the order.
(x) Compliance of sub-section (5) of Section 3 and Section 8 are mandatory. Non compliance would vitiate the order.
(xi) The scope of jurisdiction under Article 226 of the Constitution of India is open even at pre decisional or post decisional, both stages.
The aforesaid procedural aspects are illustrative and not exhaustive, which is required to be observed by the Central Government, State Government or the authority competent to pass the order under the NSA Act.