1. All these three petitions involve common question of law though on differing factual matrix and therefore, are being decided by this common order.

2. In all the three petitions, petitioners have been detained pursuant to impugned orders of preventive detention passed on 23/09/2019 by the District Magistrate, Bhind (for brevity 'DM') under the National Security Act, 1980 (for brevity 'the 1980 Act).

3. The reason assigned for exercising the extraordinary power of preventive detention is the seizure of synthetic milk and milk products which are harmful for human consumption from the premises owned by the petitioners which has caused or shall cause in future wide-spread damage to the health and lives of innumerable members of the public, majority of whom consume synthetic milk and its products under the impression that they are pure.

4. Learned counsel for the rival parties are heard at length.

5. Number of grounds have been raised in support of the challenge to the order of preventive detention but before dwelling upon the same, the relevant constitutional and statutory provisions pertaining to the concept of preventive detention are reproduced below:-

Article 21. Protection of life and personal liberty. - No person shall be deprived of his life and personal liberty except according to procedure established by law.

Article 22. Protection against arrest and detention in certain cases. - (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate..

(3) Nothing in clauses (1) and (2) shall apply-

(a) to any person who for the time being is an enemy alien; or

(b) to any person who is arrested or detained under any law providing for preventive detention.

(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless.-

(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:

Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or

(b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).

5. When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

6. Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.

7. Parliament may by law prescribe-

(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub clause (a) of clause (4);

(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention;

(c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).

5.1. Section 3, 9, 10, 11, 12, 13, 14, 14-A of the National Security Act, 1980 are reproduced below:-

3. Power to make orders detaining certain persons.-

(1). The Central Government or the State Government may-

(a). if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India, or

(b). if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, It is necessary so to do, make an order directing that such person be detained.

(2). The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of Public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained.

(3). If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (2), exercise the powers conferred by the said sub-section:

Provided that the period specified in an order made by the State Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.

(4). When any order is made under this section by an officer mentioned in sub-section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government: Provided that where under section 8 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detention, this sub-section shall apply subject to the modification that, for the words "twelve days", the words "fifteen days" shall be substituted.

(5). When any order is made or approved by the State Government under this section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order.

9. Constitution of Advisory Boards.-

(1) The Central Government and each State Government shall, whenever necessary, constitute one or more Advisory Boards for the purposes of this Act.

(2) Every such Board shall consist of three persons who are, or have been, or are qualified to be appointed as, Judges of a High Court, and such persons shall be appointed by the appropriate Government.

(3) The appropriate Government shall appoint one of the members of the Advisory Board who is, or has been, a Judge of a High Court to be its Chairman, and in the case of a Union territory, the appointment to the Advisory Board of any person who is a Judge of the High Court of a State shall be with the previous approval of the State Government concerned

10. Reference to Advisory Board:-. Save as otherwise expressly provided in this Act, in every case where a detention order has been made under this Act, the appropriate Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer mentioned in sub-section (3) of section 3, also 6 the report by such officer under sub-section (4) of that section of Advisory Boards.

11. Procedure of Advisory Boards. - (1) The Advisory Board shall, after considering the materials placed before it and, after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard, after hearing him in person, submit its report to the appropriate Government within seven weeks from the date of detention of the person concerned.

(2) The report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned.

(3) When there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board.

(4) Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter connected with the reference to the Advisory Board; and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential.

12. Action upon the report of the Advisory board.-

(1) In any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit.

(2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of a person, the appropriate Government shall revoke the detention order and cause the person concerned to be released forthwith. Action upon the report of the Advisory Board.

13. Maximum period of detention. - The maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under section 12 shall be twelve months from the date of detention:

Provided that nothing contained in this section shall affect the power of the appropriate Government to revoke or modify the detention order at any earlier time.

14. Revocation of detention orders. - (1) Without prejudice to the provisions of section 21 of the Revocation 710 of 1897 General Clauses Act, 1897, a detention order may, at any time, be revoked or modified,-

(a) notwithstanding that the order has been made by an officer mentioned in sub-section (3) of section 3, by the State Government to which that officer is subordinate or by the Central Government;

(b) notwithstanding that the order has been made by a State Government, by the Central Government.

(2) The expiry or revocation of a detention order (hereinafter in this sub-section referred to as the earlier detention order) shall not [whether such earlier detention order has been made before or after the commencement of the National Security (Second Amendment) Act, 1984] bar the making of another National Security (Second Amendment) Act, 1984] bar the making of another detention order (hereinafter in this sub-section referred to as the subsequent detention order) under section 3 against the same person:

Provided that in a case where no fresh facts have arisen after the expiry or revocation of the earlier detention order made against such person, the maximum period for which such person may be detained in pursuance of the subsequent detention order shall, in no case, extend beyond the expiry of a period of twelve months from the date of detention under the earlier detention order.]
14A. Circumstances in which persons may be detained for periods longer than three months without obtaining the opinion of Advisory Boards.-

(1). Notwithstanding anything contained in the foregoing provisions of this Act, or in any judgment, decree or order of any court or other authority, any person in respect of whom an order of detention has been made under this Act at any time before the 8th day of June, 1989 may be detained without obtaining the opinion of the Advisory Board for a period longer than three months, but not exceeding six months, from the date of his detention where such person had been detained with a view to preventing him, in any disturbed area-

(i). from interfering with the efforts of Government in coping with the terrorist and disruptive activities; and

(ii) from acting in any manner prejudicial to-

(a) the defence of India; or

(b) the security of India; or

(c) the security of the State; or

(d) the maintenance of public order; or

(e) the maintenance of supplies and services essential to the community.

(2). In the case of any person to whom sub-section (1) applies, Sections 3, 8 and 10 to 14 shall have effect subject to the following modifications, namely:-

(a) in section 3,-

(i) in sub-section (4), in the proviso,-

(A) for the words "ten days", the words "fifteen days" shall be substituted;

(B) for the words "fifteen days" the words "twenty days" shall be substituted;

(ii) in sub-section (5), for the words "seven days", the words "fifteen days" shall be substituted;

(b) in section 8, in sub-section (1), for the words "ten days", the words "fifteen days" shall be substituted;

(c) in section 10, for the words "shall, within three weeks", the words "shall, within four months and two weeks" shall be substituted;

(d) in section 11,-

(i) in sub-section (1), for the words "seven weeks", the words "five months and three weeks" shall be substituted;

(ii) in sub-section (2), for the words "detention of the person concerned", the words "continued detention of the person concerned" shall be substituted;

(e) in section 12, for the words "for the detention", at both the places where they occur, the words "for the continued detention" shall be substituted;

(f) in section 13, for the words "twelve months", the words "two years" shall be substituted:

(g) in section 14, in the proviso to sub-section (2), for the words "twelve months" the words "two years" shall be substituted.

6. Learned senior counsel Shri R.K. Sharma along with Shri V.K. Agrawal appearing for the petitioners in WP No. 21937/2019 & 21974/2019 contend as follows:-

1. The petitioners were already in custody since 09/09/2019 in connection with offences punishable u/Ss. 272, 273, 120-B & u/S. 420 of IPC r/W Section 51/59 of Food Safety and Standards Act, 2006 (for brevity 'the 2006 Act')

2. Since the petitioner was already in custody, there was no possibility of petitioners disturbing public order.

3. The impugned order is vitiated for non application of mind since there is total absence of any cogent material or evidence in shape of document or statement of any individual demonstrating any act of petitioners which may be prejudicial to maintenance of public order or maintenance of supplies and services essential to the community.

4.1 The DM failed to appreciate that none of the report of public analyst opined any of the seized item to be unsafe/harmful for human consumption but instead merely categorized them as sub-standard and adulterated and therefore, Section 59 of 2006 Act had no application.

4.2 The material relied upon by DM in support of the impugned order are statements of police personnel and not of any independent witnesses and thus are unreliable. The petitioners have no criminal antecedents.

4.3 Admittedly, the approval of the order of preventive detention was made by the State on 10/10/2019 as such it is contended that the approval was made after the maximum statutory period of 12 days as per Section 3(4) of 1980 Act thereby vitiating the impugned order.

4.4 Failure of the State to report the fact of passing of the impugned order and the grounds on which it was passed to the Central Govt. in terms of Section 3(5) of 1980 Act thereby depriving the central Govt. to use its power of revocation/modification u/S. 14 of the 1980 Act.

7. Shri Prashant Sharma, learned counsel appearing in WP No. 21937/2019, WP No. 21974/2019 & WP No. 23012/2019 in addition to what has been urged by learned senior counsel Shri R.K. Sharma above submits as follows:-

7.1. The impugned order is shown to be passed u/S. 3(2) of 1980 Act of which confers exclusive powers to State Govt. or the Central Govt. to pass an order of preventive detention and therefore, the DM had no power u/S. 3(2) to pass the impugned order rendering it ipso facto null and void.

7.2. The power u/S. 3(2) of 1980 Act exclusively vested in Central Govt. or the State Govt. can not be delegated in the absence of any enabling provision.

7.3. The Section 3(5) of the 1980 Act is mandatory in nature and therefore, non-communicating the impugned order of preventive detention to the Central Govt. leads to vitiation of the same in law.

7.4. The impugned order of preventive detention is based on presumption and surmise rather than any cogent evidence/material and thus, is an outcome of arbitrary exercise of power.

7.5. The STF (Special Task Force) which conducted raid on the premises of petitioner has no jurisdiction in law to take action under the 2006 Act and thus, the very vitiation of the process culminating into the passing of impugned order is untenable in the eyes of law.

7.6. The failure of the appropriate govt. to place the order of preventive detention before the Advisory Board constituted u/S. 9 of 1980 Act within three weeks vitiates the order in law.

8. Per contra, learned counsel for the State defending the order of preventive detention submits thus:

8.1. The oral arguments submitted by learned counsel for the petitioners are at variance to the pleadings contained in their petitions and thus deserve to be discarded.

8.2. The report of the analyst which found the khoya and paneer seized from the premises of the petitioners to be sub-standard/adulterated which rendered the finished product i.e. synthetic milk being produced unsafe for human consumption as defined in Section 3(zz) of 2006 Act.

8.3. The petitioners have failed to assail the order of State Govt. approving the impugned order of preventive detention.

8.4. The act of preparing and distributing synthetic milk which is consumed by majority of the members of public including infants and small children is an act which not only in praesenti but also in future has potentiality of endangering health and lives of the people at large thereby rendering such acts to be prejudicial to the maintenance of public order. For the purpose of defining the expression "public order", a decision of Apex Court in Devaki Vs. Govt. of Tamil Nadu and Others reported in (1990) 2 SCC 456 [LQ/SC/1990/141] is relied upon, the relevant extract of which is reproduced below for ready reference and convenience:

19. The question which falls for consideration is whether single incident of murderous assault by the detenu and his associates on the Minister at the Seminar held at Dry Chilly Merchants' Association Kalai Arangam Hall was prejudicial to the maintenance of public order. Any disorderly behaviour of a person in the public or commission of a criminal offence is bound to some extent affect the peace prevailing in the locality and it may also affect law and order problem but the same need not affect maintenance of public order. There is basic difference between law and order' and 'public order', this aspect has been considered by this Court in a number of decisions, see: Dr. Ram Manohar Lohia Vs. State of Bihar, AIR 1966 SC 740 [LQ/SC/1965/219] ; Pushkar Mukherjee & Ors. Vs. The State of West Bengal, (1969) 1 SCC 10 [LQ/SC/1968/341] and Shymal Chakraborty Vs. Commissioner of Police Calcutta & Anr., (1969) 2 SCC 426 [LQ/SC/1969/256] . In these cases it was emphasised that an act disturbing public order is directed against individuals which does not disturb the society to the extent of causing a general disturbance of public peace and tranquillity. It is the degree of disturbance and its effect upon the life of the community in the locality which determines the nature and character of breach of public order. In Arun Ghosh Vs. State of West Bengal, (1970) 1 SCC 98, [LQ/SC/1959/217] the Court held that the question whether a man has only committed a breach of law and order, or has acted in a manner likely to cause disturbance of the public order, is a question of degree and the extent of the reach of the act upon the society. This view was reiterated in Nagendra Nath Mondal V. State of West Bengal (1972) 1 SCC 498 [LQ/SC/1972/23] ; Sudhir Kumar Saha V. Commissioner of Police, Calcutta, (1970) 1 SCC 149 [LQ/SC/1969/512] ; S.K. Kedar V. State of West Bengal, (1972) 3 SCC 816 [LQ/SC/1972/281] ; Kanu Biswas V. State of West Bengal, (1972) 3 SCC 831 [LQ/SC/1972/287] ; Kishori Mohan V. State of West Bengal, (1972) 3 SCC 845 [LQ/SC/1972/304] and Amiya Kumar Karmakar v. State of West Bengal, (1972) 2 SCC 672 [LQ/SC/1972/344] .

20. In the instant case the detenu was placed under detention on the sole incident which took place on 29.7.89 and in respect of which the detenu is facing criminal trial before a court of law. The alleged attempted murderous assault made by the detenu and his associates on Thiru Durai Murugan, Minister for Public Works Department may have been made on account of political rivalry. In fact, in his affidavit Thiru Durai Murugan has admitted that in the past the detenu had misbehaved with him even on the floor of the Legislative Assembly of Tamil Nadu while participating in discussion. The attempted assault took place in the hail of Dry Chily Merchants' Association Kalai Arangam where two Ministers, a number of officials including the District Magistrate, as well as members of the public were present. It is alleged that the attempted murderous assault on Thiru Durai Murugan created scare and a feeling of insecurity in the minds of the persons present in the hail and the detenu's action interrupted the "proceedings of the Seminar for a while" (emphasis supplied). This shows that the detenu's activity disturbed the proceedings of the Seminar for a while but the Seminar appears to have continued later on. The incident did not and could not affect public peace and tranquillity nor it had potential to create a sense of alarm and insecurity in the locality. How could a single murderous assault on the Minister concerned at the Seminar could prejudicially affect the even tempo of the life of the community No doubt in paragraph 4 of the grounds the detaining authority has stated that by committing this grave offence in public, in broad day light, the detenu created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the area and there by acted in a manner prejudicial to the maintenance of public order which affected even tempo of life of the community. Repetition of these words in the ground are not sufficient to inject the requisite degree of quality and potentiality in the incident in question. A solitary assault on one individual can hardly be said to disturb public peace or place public order in jeopardy so much as to bring the case within the purview of the Act. Such a solitary incident can only raise a law and order problem and no more. Moreover, there is no material on record to show that the reach and potentiality of the aforesaid incident was so great as to disturb the normal life of the community in the locality or it disturbed general peace and tranquillity. In the absence of such material it is not possible to hold that the incident at the seminar was prejudicial to the maintenance of public order. In Manu Bhusan Roy Prodhan V. State of West Bengal & Ors, (1973) 3 SCC 663, [LQ/SC/1972/527] this Court held that a solitary assault on one individual, which may well be equated with an ordinary murder which is not an uncommon occurrence, can hardly be said to disturb public peace and its impact on the society as a whole cannot be considered to be so extensive, widespread and forceful as to disturb the normal life of the community, thereby shaking the balanced tempo of the orderly life of the general public. The Court held that the detention order which had been made for preventing the petitioner from acting in a manner prejudicial to the maintenance of public order, was not sustainable in law. On a careful consideration of the matter in all its aspects and having regard to the circumstances in which the alleged incident took place on 29.7.89, we are of the opinion that the solitary incident as alleged in the ground of detention is not relevant for sustaining the order of detention for the purpose of preventing the petitioner from acting in a manner prejudicial to the maintenance of public order.

8.5. The concept of prior affording of reasonable opportunity of being heard is foreign to the concept of preventive detention.

8.6. The petitioners have failed to assail the FIR alleging offence punishable u/S. 272, 273, 120-B & u/S. 420 of IPC r/W Section 51/59 of the 2006 Act and thus, challenge herein is inconsequential.

8.7. The wrong mention of provision [Section 3(2) of 1980 Act] in the impugned order does not per se vitiate the same as the power of preventive detention with the DM is traceable u/S. 3(3) of 1980 Act.

8.8. An order of preventive detention can very well be passed against a person who is already in custody for which AIR 2012 SC 2002 [LQ/SC/2012/494] (Huidrom Konungjao Singh Vs. State of Manipur), (1988) 2 SCC 57 [LQ/SC/1988/143] (Vijay Kumar Vs. Union of India and Others) & AIR 1982 SC 1539 [LQ/SC/1982/145] (Biru Mahato Vs. District Magistrate, Dhanbad) are relied upon, the relevant extracts of which are reproduced below for ready reference and convenience:-

AIR 2012 SC 2002 [LQ/SC/2012/494] (Huidrom Konungjao Singh Vs. State of Manipur)

"9. In view of the above, it can be held that there is no prohibition in law to pass the detention order in respect of criminal case. However, if the detention order is challenged the detaining authority has to satisfy the court the following facts:

(1) The authority was fully aware of the fact that the detenu was actually in custody.

(2) There was reliable material before the said authority on the basis of which he could have reasons to believe that there was real possibility of his release on bail and further on being released he would probably indulge in activities which are prejudicial to public order.

(3) In view of the above, the authority felt it necessary to prevent him from indulging in such activities and therefore, detention order was necessary.

In case either of these facts does not exist the detention order would stand vitiated."

(1988) 2 SCC 57 [LQ/SC/1988/143] (Vijay Kumar Vs. Union of India and Others)

12. It was true that in Uttam Chand's case, the detaining authority had proceeded on the basis that the offence for which he had been arrested and detained, was a bailable offence. But the question whether or not a particular offence for which a detenu has been detained, is a bailable or non-bailable offence, does not have any bearing on the question of passing an order of detention. Even though an offence is a non-bailable one, an accused may be enlarged on bail. Again, an offence for which a detenu has been put under detention, may be a bailable offence. It has been observed by this Court in Rameswar Shaw V. District Magistrate, Burdwan, that whether an order of detention can be against a person who is already in detention or in jail, will always have to be determined in the facts and circumstances of each case. Again, in Ramesh Yadav v. District Magistrate, Etah it has been ruled by this Court that merely on the ground that an accused in detention as an undertrial prisoner was likely to get bail, an order of detention under the National Security Act, should not be ordinarily be passed.

15. On a conspectus of a number of decisions of this Court. the Court was of the view that when a detenu is already under detention for an offence, whether bailable or non- bailable, the detaining authority will take into consideration the fact of detention of the detenu, and, as laid down by this Court in Smt. Sashi Aggarwal. v. State of U.P. (Writ Petition (Crl.) No. 735 of 1987 disposed of on 11.1.1988), there must be compelling reasons to justify his preventive detention in spite of the fact that he is already under detention on the charge of a criminal offence. There must be material for such compelling reasons and the material or compelling reasons must appear from the grounds of detention that will be communicated to the detenu. In other words, two facts must appear from the grounds of detention, namely,

(1) awareness of the detaining authority of the fact that the detenu is already in detention, and

(2) there must be compelling reasons justifying such detention, despite the fact that the detenu is already under detention

32. The first question is as to the legality of an order of detention of the person who was already in custody. The Law Report contains several decisions on this point and they furnish an instructive lesson for both sides. In all the cases, there is, however, one uniform principle stated and reiterated. It is this: The detaining authority must have awareness of the fact that the detenu is already in custody and yet for compelling reason his preventive detention is found necessary.

33. The question now raised is what should be the compelling reason justifying the preventive detention if the person is already in jail and where one should find it Is it from the grounds of detention or apart from the grounds of detention It was urged that apart from the grounds of detention there must be some other material disclosed to the detaining authority that if the detenu is released on bail he would again carry on the prejudicial activities.

34. I do not think that the contention is sound. There cannot be any other material which can enter into the satisfaction of the detaining authority, apart from the grounds of detention and the connected facts there in. The satisfaction of the detaining authority cannot be reached on extraneous matters. The need to put the person under preventive detention depends only upon the grounds of detention. The activities of the detenu may not be isolated or casual. They may be continuous or part of a transaction of racket prejudicial to the conservation or augmentation of foreign exchange. Then there may be need to put the person under preventive detention, notwithstanding the fact that he is under custody in connection with a case. As said by Sabyasachi Mukharji, J. in Suraj Pal Sahu v. State of Maharashtra : [SCC [/391 : SCC (Cri) p. 465, para 28]

"...But where the offence in respect of which the detenu is accused are so interlinked and continuous in character and are of such nature that these affect continuous maintenance of essential supplies and thereby jeopardize the security of the State, then subject to other conditions being fulfilled, a man being in detention would not detract from the order being passed for preventive detention."
35. There cannot, however, be any uniform principle to be applied in this regard. Each case has to be judged on its own facts and on its own grounds of detention. If the grounds are germane it would be perfectly legitimate exercise of power to make an order of detention.

36. In the instant case, having regard to the nature of the grounds furnished to the detenu I agree with my learned brother, that there is hardly any justification to find fault with the order of detention

AIR 1982 SC 1539 [LQ/SC/1982/145] (Biru Mahato Vs. District Magistrate, Dhanbad)

"6. One can envisage a hypothetical case where a preventive order may have to be made against a person already confined to jail or detained. But in such a situation as held by this Court it must be present to the mind of the detaining authority that keeping in view the fact that the person is already detained a preventive detention order is still necessary. The subjective satisfaction of the detaining authority must comprehend the very fact that the person sought to be detained is already in jail or under detention and yet a preventive detention order is compelling necessity. If the subjective satisfaction is reached without the awareness of this very relevant fact that the detention order is likely to be vitiated. But as stated by this Court it will depend on the facts and circumstances of each case."

8.9. A bare perusal of the impugned order of preventive detention reveal that the DM, Bhind was well aware of the petitioners being in custody in connection with Crime No. 12/2019 for the offences punishable u/Ss. 420, 272, 273 of IPC r/W Section 51/59 of Food Safety and Standards Act, 2006 but yet the DM chose the mode of preventive detention. Thus, knowledge in the mind of the District Magistrate is reflected from the record containing the grounds of detention.

9. Before embarking upon the journey of adjudication, it would be apt to have a birds eye view of historical & constitutional background and legal provisions dealing with the concept of preventive detention.

9.1. Personal liberty is arguably the most exalted fundamental right under our constitutional set up which is second only to the right to life. Deprivation of the right to personal liberty is constitutionally prohibited save by procedure established by law.

9.2. The American Supreme Court in the celebrated case of Miranda Vs. Arizona conceptualized the Miranda Rule which was adopted and embodied in Article 22 in our Constitution. The Miranda Rule/Article 22 includes three basic safeguards available to person detained in custody i.e. (a) the detenue at the earliest is to be informed of the grounds of arrest, (b) the detenue shall not be denied the right to consult and be defended by a legal practitioner of his choice and (c) the detenue shall be produced before the nearest magistrate within 24 hours of his arrest.

9.3. The concept of preventive detention is prescribed as an exception to the right to liberty in Clause 3, 4, 5, 6 & 7 of Article 22 of Constitution, wherein the following safeguards are provided to prevent the executive from misusing the extraordinary power of preventive detention:-

(a) The initial period of preventive detention is restricted to three months save by sanction of law promulgated by the Parliament.

(b) The order of preventive detention is approved/affirmed by the Advisory Board before expiry of three months from the date of arrest.

(c) The grounds for preventive detention shall be forthwith communicated to the detenue and to afford him the earliest opportunity of making representation against the preventive detention.

(d) The parliament alone is empowered to promulgate law for enabling the preventive detention for period longer than three months, prescribing the maximum period of preventive detention and the procedure to be followed by Advisory Board.

9.4. The parliament accordingly, enacted the National Security Act, 1980 to regulate the concept of preventive detention.

10. The Apex Court in various decisions, has discussed in detail the object, scope and extent of exercise of power and the extent of judicial review permissible against preventive detention, which are illustrated below in a concise manner:-

(1) The object & nature of preventive detention-

i. To prevent mischief to the community [See: 1975 (2) SCC 81] [LQ/SC/1974/387]

ii. The nature of the power is not punitive but preventive.

iii. The object is to prevent antisocial and subversive elements from imperiling welfare of the country or security of the nation or disturbing public tranquility etc.

iv. The object is not to punish a man for having done something but intercept him before he does something which may cause disturbance to public order and the even tempo of life. [See : AIR 2005 (8) SCC 276)]

(2) Scope, extent and sweep of exercise of power.

i. The exercise of power is largely precautionary and based on suspicion, anticipation as distinct from proof and thus, is based on subjective satisfaction though founded on objective consideration [See : AIR 1952 SC 196 [LQ/SC/1952/23] , 1975 (2) SCC 81] [LQ/SC/1974/387]

ii. Whether a person is to be preventively detained is primarily based on objective consideration and thus should not be judged by objective standards.

iii. It is essentially an administrative decision and not quasi judicial one for the purpose of taking administrative action.

iv. Thus, it is advisedly left for the subjective satisfaction of detaining authority which by reason of special position, experience and expertise would be best fitted to decide.

3. Scope of judicial review of preventive detention.

i. The Court can not go into correctness or otherwise of the facts stated or allegation level in the grounds in support of detention.

ii. Judicial decision has carved out area, though limited, within which the validity or subjective satisfaction can be tested judicially, some of which are illustratively enumerated below;

(a) The order of PD is not passed by incompetent authority;

(b) Subjective satisfaction is found to be irrational;

(c) The order is mala fide;

(d) The order is passed without application of mind;

(e) The ground(s) shown in support of PD is/are vague indefinite, irrelevant extraneous, non-existent or stale;

(f) The person detained is already in jail;

(g) The order is not approved by the State/Central Government as required by law;

(h) Failure to refer the case of detenue to the Advisory Board constituted under the Statute;

(i) The order of PD is quashed/revoked and fresh order of detention is made without new facts, etc. [See: 2008(3) SCC 613, para-40]

iii. The order of PD passed under the Act under which it claims to be passed.

iv. There should be live and proximate link between grounds shown for PD and the breach of public order which it intends to prevent.

11. FACTS

1. In WP No. 21937/2019

(a) The petitioner claims himself to be permanent residence of Lahar, District Bhind and a reputed businessman engaged in business of manufacturing and selling of milk and milk products from his firm Gopal Ice Factory & Chilling Center situated at Gram Chiroli, Adleeshpura, Tehsil Lahar, District Bhind.

(b) On 19/07/2019 STF, Bhopal along with officers of Food and Drugs Administration Department conducted surprise inspection at the premises of the aforesaid plant.

(c) The raiding party seized certain articles i.e. Suman Vanaspati packed 39 tins of 15 kg each, natural KMP refined Palmolein oil 10 tins packed plus 1 tin loose of 13.40 kg each, Paliwal Spray dried skimmed milk powder six bags packed and one bag loose 21 kg. It is contended by petitioner that these articles were seized in his absence. However, the State in its return submits that on seeing the STF and the Food and Drugs Administration Department team, the petitioner and his employees ran away from the site which compelled the STF to seize the articles in absence of the petitioner.

(d) The FIR bearing Crime No. 12/2019, Police Station STF Bhopal dated 20/07/2019 vide P/2 was lodged against the petitioner and other co-accused for offences punishable u/S. 420, 272, 273 of IPC r/W Section 51/59 of Food Safety and Standards Act, 2006 alleging that the milk and it's products were being mixed with harmful chemicals thereby endangering human life.

(e) The petitioner was taken in custody on 09/09/2019.

(f) The report of the food analyst dated 16/08/2019, 19/08/2019, 21/08/2019 reveals thus;

i. Khoya/Mawa found sub-standard.

ii. Milk found within norms.

iii. Paneer/chenna found sub-standard.

iv. Palmolein oil was found adulterated u/S. 3(1)(o) of the 2006 Act.

v. Skimmed milk products was found within norms.

(g). On 19/08/2019, SP, bhind submitted report to the DM, Bhind about the apprehended danger to the public order on account of activities of petitioner in preparing synthetic milk and distributing the same to the large sections of the society leading to wide-spread discontentment among the masses.

(h). On 23/09/2019, DM Bhind invoking the provision of Section 3(2) of 1980 Act directed detention of petitioner who was already in custody since 09/09/2019.

(i). On 23/09/2019 itself, the DM Bhind informs Govt. of M.P., Bhopal of detaining the petitioner under the NSA and the grounds of detention have been prepared with a view to be forwarded to the petitioner and a detailed report will follow.

(j). The order of preventive detention was served upon the petitioner as per the Return on the very same day i.e. 23/09/2019 (R/1) along with grounds in support thereof;

i. Chemical and prohibited articles were found at the factory used for adulteration in milk.

ii. Involvement in preparation of synthetic milk since number of years.

iii. The said act of manufacturing synthetic milk which is sold to and consumed by majority of the population has caused discontentment, strife and a omnipresent fear in the mind of people that their health and lives are put to jeopardy.

iv. The act of preparation of synthetic milk has been widely published in newspapers causing alarm and anxiety to a very large section of society.

v. The chemical used for preparing synthetic milk and selling the same in the market is akin to distributing slow poison to the members of general public.

vi. The offences registered against petitioner are punishable u/S. 272, 273, 120-B & u/S. 420 of IPC r/W Section 51/59 of the 2006 Act which prescribe insufficient punishment to withhold petitioner in custody for a long with greater prospects of grant of bail.

(k). On 26/09/2019 itself, the SHO, Police Station Lahar, district Bhind communicates to the brother of the petitioner that the petitioner has been sent to jail pursuant to the order of preventive detention.

(l). On 27/09/2019, the DM Bhind informs the Govt. of M.P., Bhopal about the execution of the order of preventive detention.

(m). The Govt. of M.P. within 7 days reports the factum of preventive detention to the Central Govt. as per Section (3)(5) of the NSA.

(n). On 05/10/2019, the State Govt. approves the order of preventive detention dated 23/09/2019 vide order dated 10/10/2019 of the Govt. of M.P., Home Department. Then, on 10/10/2019, the Govt. of M.P. informs the Central Govt. (Ministry of Home Affairs, New Delhi) about the passing of the order of preventive detention.

(o). On 30/09/2019, DM Bhopal forwards the entire report with all the material including grounds of preventive detention.

2. In WP No. 21974/2019

(a) The petitioner claims himself to be permanent residence of Rawatpura, PS Lahar, District Bhind and a reputed businessman engaged in business of manufacturing and selling of milk and milk products from his firm Girraj Food Center (Dairy Bussiness) situated at Bheekampura Road, Tehsil Lahar, District Bhind.

(b) On 19/07/2019 STF, Bhopal along with officers of Food and Drugs Administration Department conducted surprise inspection at the premises of the aforesaid plant.

(c) The raiding party seized certain articles i.e. Rangi Shampoo, Hydrogen peroxide, liquid detergent, sample of adulterated and synthetic milk, adulterated Mawa and Paneer.

(d). The FIR bearing Crime No. 12/2019, Police Station STF Bhopal dated 20/07/2019 vide P/2 was lodged against the petitioner and other co-accused for offences punishable u/S. 420, 272, 273 of IPC r/W Section 51/59 of Food Safety and Standards Act, 2006 alleging that the milk and it's products were being mixed with harmful chemicals thereby endangering human life.

(e) The petitioner was taken in custody on 02/08/2019.

(f). On 19/08/2019, SP, Bhind submitted report to the DM, Bhind about the apprehended danger to the public order on account of activities of petitioner in preparing synthetic milk and distributing the same to the large sections of the society leading to wide-spread discontentment among the masses.

(g). On 23/09/2019, DM Bhind invoking the provision of Section 3(2) of 1980 Act directed detention of petitioner who was already in custody since 02/08/2019.

(h). On 23/09/2019 itself, the DM Bhind informs Govt. of M.P., Bhopal of detaining the petitioner under the 1980 Act and the grounds of detention have been prepared with a view to be forwarded to the petitioner and a detailed report will follow.

(i). The order of preventive detention was served upon the petitioner as per the Return on the very same day i.e. 23/09/2019 (R/1) disclosing the following grounds in support thereof;

i. Chemical and prohibited articles were found at the factory/dairy used for adulteration in milk.

ii. Involvement in preparation of synthetic milk since number of years.

iii. The said act of manufacturing synthetic milk which is sold to and consumed by majority of the population has caused discontentment, strife and a omnipresent fear in the mind of people that their health and lives are put to jeopardy.

iv. The act of preparation of synthetic milk has been widely published in newspapers causing alarm and anxiety to a very large section of society.

v. The chemical used for preparing synthetic milk and selling the same in the market is akin to distributing slow poison to the members of general public.

vi. The offences registered against petitioner are punishable u/S. 272, 273, 120-B & u/S. 420 of IPC r/W Section 51/59 of the 2006 Act which prescribe insufficient punishment to withhold petitioner in custody for a long with greater prospects of grant of bail.

(j). On 26/09/2019 itself, the SHO, Police Station Lahar, district Bhind communicates to the father of the petitioner that the petitioner has been sent to jail pursuant to the order of preventive detention.

(k). On 27/09/2019, the DM Bhind informs the Govt. of M.P., Bhopal about the execution of the order of preventive detention.

(l). The Govt. of M.P. within 7 days reports the factum of preventive detention to the Central Govt. as per Sec. 3(5) of the 1980 Act.

(m). On 05/10/2019, the State Govt. approves the order of preventive detention dated 23/09/2019 vide order dated 10/10/2019 of the Govt. of M.P., Home Department. Then, on 10/10/2019, the Govt. of M.P. informs the Central Govt. (Ministry of Home Affairs, New Delhi) about the passing of the order of preventive detention.

(n). On 30/09/2019, DM Bhopal forwards the entire report with all the material including grounds of preventive detention.

3. In WP No. 21937/2019

(a). The petitioner claims himself to be permanent residence of Bijasen Road, Ward No. 2, Lahar, District Bhind and a reputed businessman engaged in business of manufacturing and selling of milk and milk products from his firm Naveen Trading situated in front of Civil Hospital, Tehsil Lahar, District Bhind.

(b) On 19/07/2019 STF, Bhopal along with officers of Food and Drugs Administration Department conducted surprise inspection at the premises of the aforesaid plant.

(c) The raiding party seized certain articles i.e. Maltodextrine Powder packed, Kamani Krips Refined Palm Kernel Oil packed, Hydrogen peroxide chemicals, Shampoo etc.

(d). The FIR bearing Crime No. 12/2019, Police Station STF Bhopal dated 20/07/2019 vide P/2 was lodged against the petitioner and other co-accused for offences punishable u/S. 420, 272, 273 of IPC r/W Section 51/59 of Food Safety and Standards Act, 2006 alleging that the milk and it's products were being mixed with harmful chemicals thereby endangering human life.

(e) The petitioner was taken in custody on 08/08/2019.

(f). On 19/08/2019, SP, Bhind submitted report to the DM, Bhind about the apprehended danger to the public order on account of activities of petitioner in preparing synthetic milk and distributing the same to the large sections of the society leading to widespread discontentment among the masses.

(g). On 23/09/2019, DM Bhind invoking the provision of Section 3(2) of 1980 Act directed detention of petitioner who was already in custody since 08/08/2019.

(h). On 23/09/2019 itself, the DM Bhind informs Govt. of M.P., Bhopal of detaining the petitioner under the NSA and the grounds of detention have been prepared with a view to be forwarded to the petitioner and a detailed report will follow.

(i). The order of preventive detention was served upon the petitioner as per the Return on the very same day i.e. 23/09/2019 (R/1) along with grounds in support thereof;

i. Chemical and prohibited articles were found at the factory used for adulteration in milk.

ii. Involvement in preparation of synthetic milk since number of years.

iii. The said act of manufacturing synthetic milk which is sold to and consumed by majority of the population has caused discontentment, strife and a omnipresent fear in the mind of people that their health and lives are put to jeopardy.

iv. The act of preparation of synthetic milk has been widely published in newspapers causing alarm and anxiety to a very large section of society.

v. The chemical used for preparing synthetic milk and selling the same in the market is akin to distributing slow poison to the members of general public.

vi. The offences registered against petitioner are punishable u/S. 272, 273, 120-B & u/S. 420 of IPC r/W Section 51/59 of the 2006 Act which prescribe insufficient punishment to withhold petitioner in custody for a long with greater prospects of grant of bail.

(j). On 26/09/2019 itself, the SHO, Police Station Lahar, district Bhind communicates to the son of the petitioner that the petitioner has been sent to jail pursuant to the order of preventive detention.

(k). On 27/09/2019, the DM Bhind informs the Govt. of M.P., Bhopal about the execution of the order of preventive detention.

(l). The Govt. of M.P. within 7 days reports the factum of preventive detention to the Central Govt. as per Section (3)(5) of the NSA.

(m). On 05/10/2019, the State Govt. approves the order of preventive detention dated 23/09/2019 vide order dated 10/10/2019 of the Govt. of M.P., Home Department. Then, on 10/10/2019, the Govt. of M.P. informs the Central Govt. (Ministry of Home Affairs, New Delhi) about the passing of the order of preventive detention.

(n). On 30/09/2019, DM Bhopal forwards the entire report with all the material including grounds of preventive detention.

12. On the basis of aforesaid factual matrix, the grounds raised by learned counsel for the petitioners are to be adjudged on the anvil of provisions of National Security Act and the various judicial pronouncements of the Apex Court.

13. The first question that arises is as to whether it was lawful for the competent authority to have subjected the petitioner to preventive detention on 23/09/2019 despite petitioners having been arrested on 02/08/2019 (Santosh Singh), on 09/09/2019 (Rajeev Gupta) & on 08/05/2019 (Prayagdutt Shivhare).

13.1. The offence in which all the three petitioners were arrested are punishable u/Ss. 272, 273, 120-B & u/S. 420 of IPC r/W Section 51/59 of the 2006 Act where the maximum punishment prescribed for the offence of cheating is 7 years whereas the offences under the Food Safety and Standards Act, 2006, merely attracts fine since no injury is reported. All these offences are triable by Magistrate. The nature of offences and the punishment they attracts under the respective penal laws gave rise to a reasonable apprehension in the mind of competent authority that petitioners would very soon be admitted to bail. This apprehension is a reasonable one and cannot be found fault with and therefore, the subjective satisfaction arrived at in that respect was based on objective consideration.

14. The other larger issue which arise is as to whether the grounds shown for detention are good enough to sustain order of preventive detention.

14.1. The grounds shown is that there is wide-spread discontentment and fear in the minds of large sections of the society due to circulation/distribution of synthetic milk in the market which cannot be distinguished by a common man from the real milk thereby making the common man and the children to run the risk of consuming synthetic milk thereby exposing themselves to disease and death. The detaining authority has also held that the act of the petitioner of distributing synthetic milk camouflaged as real milk in the market is like spreading slow poison in the society. Thus, satisfaction of live and proximate danger to public order appears to be palpable. Chemical and synthetic material being mixed with real milk or being used as synthetic milk per se and distributing the same in the open market where no one can distinguish between synthetic and real milk creates an extremely dangerous situation for health and lives of not only the able-bodied citizens but also the children right from an infant to adolescent. It is common knowledge that majority of consumption of milk is by infants and adolescents. Children are the future of our nation on whose shoulders rests the progress and development of the country. If these shoulders are rendered weak and infirm by consuming synthetic milk treating the same to be real, the overall development of the nation would be retarded. Harmful chemicals being mixed with milk or used for preparing synthetic milk may lead to different kinds of unknown diseases which would cause debilitating effect upon the infant, adolescents and children rendering them incapable to take up their responsibility and discharged their duties as citizens of this country. The children, the family, the society and the nation would suffer. Constant and regular consumption of harmful chemicals in shape of synthetic/adulterated milk may cause genetic defects thereby risking the lives of the future generation who are still to be born and are in the womb of their mother who is a victim of synthetic milk.

14.2. The act of petitioners of selling synthetic milk in the market making it available for all and sundry who consumed it on a regular basis, sends shivers down the spine of consumers on coming to know of the adverse effect over mind and body. This spreads a spell of fear among large sections of society who consume the synthetic milk, disturbing their peace of mind and body about the lurking adverse effects which may manifest in shape of debilitating diseases, destroying their mind, body and psyche for all times to come. This fear psychosis sends ripples of disturbance all around, disrupting the even tempo of life, thereby causing breach in public order.

14.3. In this view of the matter, the DM had ample material and real and live apprehension in his mind that the health and lives of large section of the society would be jeopardized if this nefarious and illegal activity is not nipped in the bud. Swift and prompt action by the DM was called for in the given facts and circumstances.

14.4. Thus, this Court is of the considered view that the power of preventive detention is an exception to the fundamental right to liberty which can be exercised in exceptional circumstances. In the instant case as explained above, there were enough and sufficient reasons available to the DM, Bhind to have exercised his power u/S. 3 of the 1980 Act (NSA).

15. The other issue that needs to be addressed is about due and sufficient opportunity afforded to the petitioner before various authority as prescribed under different clauses of Sec. 3 of the 1980 Act.

15.1. The grounds of detention were promptly served upon the petitioners as is evident from the records made available by the State as detailed (supra). The DM also promptly communicated the order of preventive detention to the State Govt. which in turn confirmed the same on 05/10/2019 which is well within the outer limit of 12 days prescribed u/S. 3 of the 1980 Act. Moreso, the information was also sent to the Central Govt. u/S. 3(5) within 7 days of the passing of the order of preventive detention together with the grounds.

16. Another ground raised by learned counsel for the petitioners is that the order of preventive detention is shown to be passed u/S. 3(2) of the 1980 Act whereas no such power of preventive detention is available to the DM since power u/S. 3(2) is available exclusively to the Central Govt. or the State Govt.

16.1. This argument is heard to be rejected at the very outset since such power with the DM is traceable u/S. 3(3) of the 1980 Act. It is trite principle of law that mere mention of wrong section does not vitiate an order if the power exercised is otherwise available under any other provision under the same enactment. The impugned order can very well be sustained u/S. 3(3) of 1980 Act.

17. There is another ground raised by learned counsel for the petitioners, that the report of food analyst merely reveals sub-standard or adulterated material but it does not reveal that the same is poisonous for human consumption.

17.1. The discussion made above reveals that synthetic milk was being prepared by chemicals which by no stretch of imagination can be treated as safe for human consumption. The damage caused to the human health by the synthetic material when consumed under the impression of real milk can be slow but in long run can be debilitating for the mind and body which may give rise to unknown diseases in the future of which no cure may be available. As such merely because the report of analyst showed that the material seized from the premises of the petitioners was not poisonous for human consumption does not make the case of petitioner any better. The apprehension nursed in the mind of people of wide-spread damage to their body and mind due to regular consumption of synthetic milk casts a a spell of fear psychosis where humans are under constant threat of losing their health, mind and body. The adverse effect of consumption of synthetic milk under the impression that the same is real is the same as continuously inhaling poisonous air though in small quantity which may not in the short run get manifested as disease or injury, but may sprout up as a debilitating, incurable disease may be after few years or a decade. Thus, this argument of learned counsel for the petitioner does not hold any water.

18. As regards reference to the Advisory Board u/S. 10 of the 1980 Act, this Court after seeking information from the Registry of this Court came to know that the Advisory Board at the Principal Seat of this Court at Jabalpur was non-functional from 04/06/2019 to 13/11/2019 whereafter the first sitting of the Advisory Board was held on 18/11/2019. This Court is informed by counsel for the State that the matter of all the petitioners has already been placed before the Advisory Board.

19. From the above discussion, what comes out loud and clear is that the orders of preventive detention assailed herein were passed though on subjective satisfaction but based on objective, cogent and relevant consideration of preventing large scale damage to human life especially of young innocent children. The apprehension in the mind of DM of disturbance to public order was palpable and apparent on the basis of record. If the DM had failed to act in the manner as he did, the DM would have been blamed for abdicating his duties towards the citizens he serves.

20. Consequently, this Court sees no reason to interfere with the well reasoned and justified orders of preventive detention of the DM, Bhind passed in all three writ petitions i.e. WP No. 21937/2019, WP No. 21974/2019 & WP No. 23012/2019 and therefore, these petitions stand dismissed, sans cost.