NEW DELHI: "Can a single incident affect the public order enough to invoke National Security Act?" the Supreme Court said as it agreed on Thursday to examine a woman's plea against her doctor-husband's detention in Madhya Pradesh for allegedly black marketing anti-COVID Remdesivir injections in Indore.
A bench of Justices D Y Chandrachud and M R Shah issued notice to the Madhya Pradesh government and sought its response within two weeks.
"We would like to examine this petition. Among various grounds raised in the plea, we will also examine can a single incident affect the public order enough to invoke the National Security Act," the bench said.
The bench was hearing a plea filed by Aasefa Khan, challenging the Madhya Pradesh High Court order of July 16, by which it had dismissed her habeas corpus petition challenging the detention of her husband under the NSA.
It recorded the various grounds, mostly procedural, on which the detention is being challenged by the petitioner like the detenu was declared as "absconding" in the detention order dated May 19, whereas he was in jail since May 13.
The detention was also challenged on the ground that the documents referred by the Superintendent of Police for recommending the doctor's detention under NSA, 1980 were not forwarded to the detaining authority.
Aasefa has also said that the memorandum relied upon by the detaining authority was not supplied to the detenu and the valuable right of representation to the detaining authority was defeated due to delay in execution of detention order, and by the time it was served, it had been approved by the state government.
Advocate R S Chhabra, appearing for Aasefa, said that the high court erred in not appreciating the consequence of wrongful declaration of the detenu as absconding as due to this the statutory authorities formed an impression that detenu is liable to be punished under provision of NSA.
The plea filed through advocate P S Sudheer said, "The high court further erred in not appreciating the fact that memorandum of section 27 of the Indian Evidence Act, was referred to in the grounds of detention but was never served upon the detenu and thereby violating Article 22 (5) of the Constitution".
It said the high court erred in not appreciating the fact that there was delay in execution of detention order and no explanation was offered in the reply as to why there was delay in execution of the order when the detenu was already in custody.
"No explanation is tendered as to why it took 6 days after passing of the detention order to seek approval of the competent court to "formally arrest" the detenu. Delay in execution of detention order vitiates the subjective satisfaction of the detaining authority", the plea said.
It said that the high court erred in not appreciating that Article 22(5) of the constitution mandates that an earliest opportunity is to be afforded to the detenu to make a representation against the order.
"In the present case, the right of representation to the detaining authority was rendered otiose on account of delay in execution of detention order on the detenu. The detention order dated May 19 was approved by the state government on May 28 whereas the same was served on the detenu on June 5", it said.
The plea said that the detenu was deprived of his right to make representation to the detaining authority as the detention order was approved by the state government before it was served on the detenu.
"That by virtue of explanation to section 3(2) of the National Security Act, 1980 no order of detention under the National Security Act, 1980 could have been passed as the alleged act of the detenu falls within the ambit of Prevention of Black-marketing and maintenance of Supplies of Essential Commodities Act, 1980," the plea said.
The high court while dismissing her plea said that indulging in black marketing of a drug like Remdesivir in days of extreme crisis is certainly such an ugly act and fact which can very well be a reason for invoking NSA.
On May 1, during the peak of the second wave of COVID, Indore police arrested two persons for black marketing Remdesivir Injection opposite a hospital and case was registered at Vijaynagar police station.
Based on the statement of those arrested, the doctor was arrested in the case.
According to the plea, police had not recovered any injection from him but has seized Rs 1,200 from his possession.