State can’t confirm NSA detention without advisory board report: HC | Bhopal News

Bhopal/Jabalpur: In a significant decision, a division bench of the Madhya Pradesh high court has ruled that the state government can’t confirm a person’s detention under the National Security Act (NSA) without report of the advisory committee as provided under the National Security Act.
With this, the bench set aside order of district collector, Jabalpur, to detain a person under NSA, who was under detention for three months and a habeas corpus petition was filed in the high court for his release.
The division bench of Justice Atul Sreedharan and Justice J P Gupta in their brief order said, “The petitioner is in custody since 11/07/2019. It is said that the state government has confirmed the order under section 12 of the NSA, but no such order has been placed with the reply and no such order can be passed without getting the report of the Advisory Board, which according to the reply, is not functioning. As per the scheme of NSA, according to section 11 of the NSA, the Advisory Board is bound to submit its report to the state government within 7 weeks from the date of detention of the person concerned. Only thereafter, the State Government may confirm the detention order under section 12 of the NSA.”
“In this case, the whole detention period is over and the case of the petitioner has not been examined by the Advisory Board, therefore, his representation against the detention order has not been considered and the petitioner deprived of right of hearing against the impugned order,” the order said.
“Merely on the ground that board is not functional the action of the respondent can’t be justified. It is also duty of the state government to appoint the chairman and required member as per law timely. If the board is not functioning the constitutional right of the petitioner cannot be curtailed and on account of the aforesaid reason, it is held that the petitioner’s detention was illegal and all order in this regard is set aside. Accordingly, this petition is disposed of,” the order said.
The judges also took note of the fact that the petitioner was not given a chance of hearing before he was detained under NSA and the Central government was also not informed about his detention as required under provisions of NSA.
“The aforesaid reply itself establishes that the petitioner has not been informed the ground of detention and right to submit representation to the detaining authority i.e. the state government and the central government in compliance of section 8 of the NSA and no compliance has been made as required under section 3(5) of NSA to send the report about the action to the Central government,” the judges wrote.

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