New
Delhi:
The Madhya Pradesh government Friday informed the Supreme Court that it has
revoked the detention of a doctor, accused of black marketing anti-COVID
Remdesivir injections at Indore, under the National Security Act.
The
state government said that following its decision, the district magistrate
wrote to the Jail Superintendent of Central Jail at Indore and the doctor was
subsequently released.
A
bench of Justices DY Chandrachud, Vikram Nath and Hima Kohli, after recording
the submission of additional advocate general Saurabh Mishra, disposed of the
plea filed by Aasefa Khan challenging the Madhya Pradesh High Court’s July 16
order dismissing her habeas corpus petition challenging the detention of her
husband under NSA.
During
the brief hearing, Mr Mishra said that on July 16, the state government has
decided to revoke the detention under NSA of the doctor and on August 2,
district magistrate had written to Jail Superintendent of Central Jail, Indore
to release him.
The
bench said that nothing survives in the petition as the accused has been
released and disposed of the plea filed by his wife.
Advocate
RS Chhabra, appearing for Aasefa, said that they have also filed an appeal
against rejection of bail by the high court, which in a way is also a stigma.
Chhabra said that the appeal also needs to be heard at the earliest.
The
bench said it will take up the appeal against rejection of bail in the due
course of time.
On
August 19, while issuing notice the top court had asked the Madhya Pradesh
government, “Can an incident affect public order enough to invoke NSA”.
The
plea has recorded 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 grounds 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
had stated 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.
The
high court erred in not appreciating the consequence of wrongful declaration of
the detenu as missing as due to this the statutory authorities formed an
impression that detenu is liable to be punished under provision of NSA, she
said.
The
plea filed through advocate PS 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 seized ? 1,200
from his possession.
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