Devesh Chourasia vs The District Magistrate, Jabalpur

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No 125 of 2022 [Arising out of SLP (Crl) No 9919 of 2021]

Devesh Chourasia Appellant

Versus

The District Magistrate, Jabalpur and Others Respondents

ORDER

1 Leave granted.

2 The appeal arises from a judgment dated 24 August 2021 of a Division Bench

at the Indore Bench of the High Court of Madhya Pradesh.

3 In the course of a petition under Article 226 of the Constitution, the appellant

assailed an order of detention which was passed against him on 11 May 2021

under Section 3 of the National Security Act 1980 and a subsequent order

dated 8 July 2021, by which the period of detention was extended by three

months. The writ petition - Writ Petition No 10177 of 2021 - instituted by the

appellant was heard, as the High Court described it “analogously” with

another petition under Article 226, Writ Petition No 10085 of 2021 [Sarabjit

Singh Mokha vs State of Madhya Pradesh].

Signature Not Verified Digitally signed by DEEPAK SINGH Date: 2022.02.02 16:30:32 IST Reason: Crl.A.125/2022 2

4 The appellant was an employee in the pharmaceutical wing of City Hospital

which was run by Sarabjit Singh Mokha, the petitioner in the companion

petition before the High Court. The petition instituted by Sarabjit Singh

Mokha was rejected by the High Court by a judgment dated 24 August 2021.

The petition filed by the appellant was also rejected on 24 August 2021 by

another judgment.

5 Against the judgment of the High Court in the companion writ petition, a

Special Leave Petition was instituted before this Court under Article 136 of

the Constitution. Leave was granted and by a judgment dated 29 October

2021, this Court set aside the order of detention dated 11 May 2021 and the

extensions which were granted on 15 July 2021 and 30 September 2021 in

that case.

6 As the judgment of this Court in the previous proceedings indicates, the facts

of the two cases are substantially similar. The narration of facts in paragraph

4 of the judgment of this Court dated 29 October 2021, sets out the

underlying basis on which an order of detention was passed against the

petitioner in the earlier proceedings. Paragraph 4 reads as follows:

“It is alleged that the Police Station of 'B' Division in District Morbi of Gujarat seized fake Remdesivir injections from a factory where they were manufactured and an FIR was registered in that regard. On 10 May 2021, the statement under Section 161 of the CrPC of a co-accused by the name of Devesh Chaurasia, who was running a pharmacy in the hospital owned by the appellant, was recorded to the effect that the appellant had procured fake Remdesivir injections without a bill. The appellant is said to have collected the injections through a person named Prakhar Kohli from Indore, who sent the cartons through a transporter called Amba Travels. The fake Remdesivir injections were stated lo have been administered Crl.A.125/2022 3

to 50 patients al the City Hospital on 30 April 2021. In his statement under Section 161 of the CrPC recorded on 10 May 2021, Prakhar Kohli staled that the appellant's son had on 21 April 2021 asked him to send the fake Remdesivir injections from Indore to Jabalpur. Prakhar Kohli was made to speak to the appellant in that connection. Prakhar Kohli is staled to have sent the fake injections through Amba Travels, and these injections were received at Jabalpur by the co-accused, Devesh Chaurasia, on behalf of the appellant.”

7 The above extract contains a reference also to the appellant. During the

course of the hearing, Mr Sidharth Luthra, senior counsel appearing on

behalf of the appellant has tendered a tabulated chart reflecting the

similarities both in respect of the grounds of detention and the findings which

weighed with this Court in allowing the earlier appeal which arose from the

judgment of the High Court in the case of Sarabjit Singh Mokha. For the

convenience of reference, the chart is reproduced below:

S. No. GROUND OF DETENTION in GROUND OF FINDING IN Sarabjeet Singh Mokha v DETENTION in JUDGEMENT DATED District Magistrate & Ors SLP Devesh 29.10.2021 titled (Crl.) No. 7012/2021 Chourasia v Sarabjeet Singh District Magistrate Mokha v District & Ors Magistrate & Ors {SLP (Crl.) No. SLP (Crl.) No. 7012/2021} 9919/2021

1. DELAY IN CONSIDERING THE DELAY IN By delaying its REPRESENTATION CONSIDERING THE decision on the Facts as recorded in Para 41 to REPRESENTATION representation, the 43 of the Judgement: (PAGE State Government 323 OF SLP) - Representation deprived the dated 22.05.2021 detenu of the sent to State valuable right CENTRAL GOVERNMENT:-

Government on which emanates - Delay of one and a half 24.05.2021 which from the provisions month on part of Central was delivered on of Section 8(1) of Government in considering 27.05.2021 having the the representation dated (REFERENCE AT representation Crl.A.125/2022 4

18.05.2021 and rejecting PG. 260 OF SLP) being considered the same on 24.06.2021 expeditiously. - Representation (PARA 46 AT PAGE STATE GOVERNMENT:- dated 22.05.2021 325 OF SLP) - Representation rejected by was processed State Government on for consideration The delay by the of Union on State Government 15.07.2021 however, no 29.06.2021and in disposing of the proof of communication to thereafter re- representation and detenu nor an explanation jected by the by the Central and for almost 60 day delay is Central govern- State Government provided. ment vide Wire- in communicating less message such rejection, dated 27.07.2021 strikes at the heart {REFERENCE AT of the procedural PG. 232-233 OF rights and SLP} guarantees granted to the (Delay of nearly 2 detenu. (PARA 46 months in AT PAGE 326 OF rejecting SLP) Representation dated 22.05.2021)

2 FAILURE TO COMMUNICATE FAILURE TO The failure of the DECISION ON THE COMMUNICATE Central and the REPRESENTATION DECISION ON THE State Government The Central Government's REPRESENTATION to communicate wireless message dated 28 the rejection of the June 2021 directed the SP to The Central appellant’s collect the Detenu’s Government's wireless message representation in a acknowledgement of receipt. However, the respondents dated 27.07.2021 time-bound were unable to furnish any {REFERENCE AT manner is sufficient proof of such PAGE 236 OF SPL) to vitiate the order acknowledgement. (PARA 47 directed the SP to of detention (PARA AT PAGE 326 OF SLP) collect the 54 AT PAGE 331 OF Detenu’s SLP) acknowledgement of receipt. However, no such acknowledgement was acquired nor any such proof has been filed by the Respondents.

8 Notice was issued by this Court in the present appeal on 3 January 2022, Crl.A.125/2022 5

specifically recording the contention of the appellant based on the

applicability of the judgment dated 29 October 2021 in Sarabjit Singh

Mokha vs District Magistrate, Jabalpur [Criminal Appeal No 1301 of

2021].

9 In pursuance of the order issuing notice, the State of Madhya Pradesh has

entered appearance through Mr Sourav Mishra, Additional Advocate General.

Besides the learned AAG appearing on behalf of the State, Mr K M Nataraj,

Additional Solicitor General has appeared on behalf of the Union of India.

10 The two principal grounds which weighed with this Court in the earlier

judgment were that (i) the detenue was deprived of the right which

emanates from the provisions of Section 8(1) of having the representation

being considered expeditiously; and (ii) the failure of the Central and the

State governments to communicate the rejection of the representation in a

time bound manner would vitiate the order of detention. No distinguishable

feature has been indicated in the counter affidavit which has been filed in

these proceedings. As a matter of fact, as already indicated above, the

appellant was in the pharmaceutical wing of the hospital which was

conducted by the appellant in the previous case decided by this Court. Both

the AAG and ASG did not dispute the applicability of the earlier judgment of

this Court.

11 For the above reasons and following the judgment dated 29 October 2021,

we allow the appeal and set aside the order of detention dated 11 May 2021 Crl.A.125/2022 6

as well as the consequential extensions which were granted on 8 July 2020

and 30 September 2021.

12 The appeal shall stand disposed of in the above terms.

13 Pending applications, if any, stand disposed of.

….....…...…......………………........J. [Dr Dhananjaya Y Chandrachud]

….....…...…......………………........J. [Dinesh Maheshwari] New Delhi;

January 24, 2022 CKB Crl.A.125/2022 7

ITEM NO.13 Court 4 (Video Conferencing) SECTION II-A S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No.9919/2021

(Arising out of impugned final judgment and order dated 24-08-2021 in WP No.10177/2021 passed by the High Court Of M.P. at Indore)

DEVESH CHOURASIA Petitioner(s)

VERSUS

THE DISTRICT MAGISTRATE, JABALPUR & ORS. Respondent(s)

(With appln.(s) for I.R. and IA No.166790/2021-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.166791/2021-EXEMPTION FROM FILING O.T. and IA No.166793/2021-APPROPRIATE ORDERS/DIRECTIONS and IA No.166792/2021-PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES)

Date : 24-01-2022 These matters were called on for hearing today.

CORAM :

HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE DINESH MAHESHWARI

For Petitioner(s) Mr. Sidharth Luthra, Sr. Adv.

Mr. Ashwani Kumar Dubey, AOR Mr. Pankaj Dubey, Adv.

Mr. Akshat Kumar, Adv.

Mr. Manish Kumar, Adv.

Mr. Akshay Khandelwal, Adv.

Ms. Reetika Gupta, Adv.

Mr. Sheezan Hashmi, Adv.

Ms. Rytham Sheel Srivastava, Adv.

Crl.A.125/2022 8 For Respondent(s) Mr. Saurabh Mishra, AAG Mr. Sunny Choudhary, Adv.

Mr. Pashupathi Nath Razdan, AOR

Mr. K.M. Nataraj, ASG Mr. Shailesh Madiyal, Adv.

Mr. Prashant Singh (A), Adv.

Ms. Preeti Rani, Adv.

Mr. Sharath Narayan Nambiar, Adv.

Mr. Mohammed Akhil, Adv.

Mr. Arvind Kumar Sharma, Adv.

UPON hearing the counsel the Court made the following O R D E R

1 Leave granted.

2 The appeal is disposed of in terms of the signed order.

3 Pending applications, if any, stand disposed of.

(CHETAN KUMAR) (SAROJ KUMARI GAUR) A.R.-cum-P.S. COURT MASTER (Signed order is placed on the file)