Chhattisgarh High Court: In a yet another case related to posting of objectionable comments on the social networking site, a division bench of Prashant K. Mishra and Goutam Bhaduri JJ, set the detenu at liberty on the ground that at the first instance, District Magistrate cannot detain a person for a period exceeding 3 months from the date of detention.
The detenu in the instant case filed a petition under Article 226 of the Constitution for issuance of writ of habeas corpus against the order passed by the District Magistrate to detain the petitioner for a period of 12 months, on satisfaction that his acts (posting objectionable comments in his facebook page concerning deities of a particular religion) are prejudicial to maintenance of public order and that he is a habitual offender. Rajeev Shrivastava, the counsel for the petitioner contended that as per the provisions of the National Security Act, 1980, an order of preventive detention cannot be passed for a period of more than 3 months, at the first instance. The counsel for the State, D.K. Gwalre, relied on Subramanian v. State of Tamil Nadu (2012) 4 SCC 699 and contended that “the object of the law of preventive detention is not punitive but only preventive and that the action of the executive in detaining a person being only precautionary should be left to the discretion of the executive authority” and that “in the present case, the order passed by the District Magistrate having been approved by the State Government and the Advisory Board, even that flaw, if any, stands removed and the writ petition deserves to be dismissed on this Count”.
The Court observed that the proviso to sub-Section (3) of Section 3 of the NSA, 1980 clearly states that “if Government intends to detain an individual under the Act for the maximum period of 12 months, there must be an initial order of detention for a period of 3 months, and at least, 3 orders of extension for a period not exceeding 3 months each and that such order has to be on the basis of satisfaction of the State Government”, however in the instant case, the order of extension straightway passed by the State Government without any basis, fails to satisfy the requirement of the proviso to sub-Section (3) of Section 3 of the Act 1980.
The Court concluded that the order even if it is approved by the State Government or the Advisory Board would not clothe the authority to direct preventive detention for a period exceeding 3 months. Accordingly, the Court held that the order of detention passed by the District Magistrate to detain the petitioner for a period of 12 months at the first instance is bad in law, and set the petitioner at liberty. Rais Khan v. State of Chhattisgarh, 2015 SCC OnLine Chh 5, decided on 15.01.2015.
