Madhya Pradesh High Court
Vikas Tiwari vs The State Of Madhya Pradesh on 31 March, 2026
Author: Anand Pathak
Bench: Anand Pathak
1 WP NO. 327/2026
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
&
HON'BLE SHRI JUSTICE PUSHPENDRA YADAV
WRIT PETITION No. 327/2026
VIKAS TIWARI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
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Shri Somnath Seth and Shri Sushil Goswami - Advocates for the
petitioner.
Shri Vivek Khedkar - Senior Advocate/Additional Advocate General
with Shri Ravindra Dixit - Govt. Advocate for the respondents/State.
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ORDER
(Passed on this 31st day of March 2026)
Per: Justice Anand Pathak
Present petition is preferred by the petitioner under Article 226 of the
Constitution of India taking exception to the orders dt.04.11.2025 (Annexure
P/1), dt. 04.12.2025 (Annexure P/2) and subsequent order dt.04.02.2026
(Annexure P/8), whereby the petitioner is detained under Section 3 of the
National Security Act, 1980 (for short “Act of 1980”).
2. It appears that petitioner is resident of District Vidisha (M.P.) and due
to his criminal antecedents and some incident of crime took place on
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20.10.2025, a case has been registered against the petitioner vide Crime
No.815/2025 for the offences under Sections 296, 115 (2), 351 (3), 61(2), 238
and 49 of BNS at Police Station Kotwali, Vidisha. It appears that this incident
precipitated the chain of events, which resulted into passing of order
dt.04.11.2025 by District Magistrate (D.M.) Vidisha, whereby petitioner has
been detained under Section 3 of the Act of 1980 purportedly for three
months. During pendency of this petition, vide order dt. 04.02.2026 his
detention is extended for another three months.
3. Counsel for the petitioner raised the question of opportunity of hearing
and absence of cogent material against him to be detained under Act of 1980.
However, prime argument of counsel for the petitioner was that after
detention order is passed, D.M. (although mentioned the fact that
representation can be made by the petitioner/detenue before State
Government, the Advisory Board and Central Government against detention).
did not mention the fact that representation can be made before D.M. also,
thus vitiated the proceeding.
4. It is the submission of counsel for the petitioner in support of the
grounds raised is that D.M. is the detaining authority under Section 3 of the
Act of 1980 till detention is approved by the State Govt. Therefore, D.M. is
required to mention the fact that representation can be made before him also.
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5. Learned counsel for the petitioner refers Section 8 of Act of 1980,
which talks about grounds of order of detention to be disclosed affected by
the order and Section 14, which deals with Revocation of detention orders.
According to him, authority, who passes the order, has authority to revoke it
under Section 14 of the Act of 1980 [as well as under Section 21 of General
Clauses Act, 1897 (for short “Act of 1897”)]. Therefore, D.M. is the authority
for revocation of detention order beside State. Therefore, representation can
be made before D.M. Non-disclosure of the fact to detenue that representation
can be made before D.M. also, whole proceeding stands vitiated.
6. In support of his submissions, learned counsel for the petitioner placed
reliance over Constitution Bench judgment of Apex Court in the case of
Kamleshkumar Ishwardas Patel v. Union of India (1995) 4 SCC 51 and
Full Bench Judgment of this Court in the case of Kamal Khare v. State of
M.P. and others 2021 (2) MPLJ 554. He also relied upon the judgment of
this Court in the case of Monika Tripathi Vs. State of M.P. and others
(2021) 2 MPLJ 25. On the strength of these judgments and referring Article
22 (5) of the Constitution of India, counsel for petitioner prayed for setting
aside of impugned orders.
7. Per contra, learned counsel for respondents vehemently opposed the
prayer. Learned counsel for respondents referred different paragraphs of
judgment passed by the Apex Court in the case of Kamleshkumar
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Ishwardas Patel (supra) and submits that this judgment was passed while
considering the statute Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act (for short “COFEPOSA Act“) and the Prevention
of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act, 1988 (for
short “PIT NDPS Act“). In those statutes, detaining authority does not need
approval of the appropriate Government of the detention order passed by the
officer because he is empowered to pass such an order under Section 3 of the
COFEPOSA Act. Therefore, in that particular factual details and peculiar
facts and circumstances of that case, Apex Court passed the order and held
that detaining authority has to decide the representation. It is clarified that
while dealing with COFEPOSA Act and PIT NDPS Act, Constitutional Bench
passed the said order. However, Constitution Bench was aware of the fact that
Section 3 of the Act of 1980 and its different provisions are not such where
the detaining authority can decide the representation.
8. Learned counsel for the respondents referred different paragraphs of
judgment passed by the Apex Court in the case of Kamleshkumar
Ishwardas Patel (supra) and submits that D.M., who made the order, is
required to forthwith report the fact to the State Government to which he is
subordinate. Said provision further prescribes that order passed by the
detaining authority shall remain in force for twelve days only unless it is
approved by the State Government, otherwise it meets the natural death.
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Therefore, appropriate Authority is State Government which can decide the
representation.
9. Heard learned counsel for the parties at length and perused the record.
10. Though the Constitution has recognized the necessity of laws as to
preventive detention, however, it has also provided certain safeguards to
address the harshness of provisions while circumscribing the legislative
power conferred on this topic. In other words, Article 22 lays down the
permissible limits of legislation empowering the preventive detention and it
prescribes the minimum procedure and that must be included in any law,
which permits authority to use preventive detention in National/Public
interest as provided in Statute.
11. Immediately after Constitution came into being, Preventive Detention
Act, 1950 (for short “Act of 1950”) was promulgated with an object to
provide preventive detention in certain cases and for matters connected
therewith. It was replaced by the National Security Ordinance 1980 and
thereafter by The National Security Act, 1980 (Act of 1980). Subject matter
of present case falls under the Act of 1980. Section 3 of the Act of 1980 gives
power to make order detaining certain persons. Section 3 of the Act of 1980 is
reproduced hereinbelow for ready reference :-
3. Power to make orders detaining certain persons.–(1)
The Central Government or the State Government may,–
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(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 detentions, this sub-section shall apply
subject to the modification that, for the words “twelve
days”, the words “fifteen days” shall be substituted.
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12. Similarly, Sections 8 of the Act of 1980 provides for grounds of order
of detention to be disclosed to persons affected by the order and the earliest
opportunity of making a representation against the order to the appropriate
Government.
13. Now the grievance of the petitioner is that D.M. has passed the order of
detention and did not mention the fact in the impugned order that
representation can be made to D.M. himself. Although it is mentioned that
representation can be made by the petitioner/detenue before the State
Government, Advisory Board and the Central Government, however, it is not
mentioned that representation can be made to him also. Therefore, according
to petitioner, detention order is vitiated by law. However, it does not appear
so.
14. Perusal of Section 3 (3) and (4) of the Act of 1980 reveals that for
detention of three months, D.M. can pass detention order but he shall have to
forthwith report the fact to the State Govt. and no such order shall remain in
force for more than twelve days after making thereof unless it is approved by
the State Govt. It means, the detaining authority has the power to revoke the
order of detention (if any available) at best within twelve days. This aspect
has been dealt with by the Apex Court in the case of Ibrahim Bachu Bafan
v. State of Gujarat (1985) 2 SCC 24 while interpreting Section 11 of
COFEPOSA Act (regarding revocation of detention order) read with Section
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21 of Act of 1897. Apex Court has given certain guidelines in para 7, which is
reproduced hereinbelow for ready reference :-
“…….the words “without prejudice to the provisions of Section 21
of the General Clauses Act 1897″ used in Section 11 (1) of the Act
give expression to the legislative intention that without affecting
that right which the authority making the order enjoys under
Section 21 of the General Clauses Act, an order of detention is
also available to be revoked or modified by authorities names in
clauses (a) and (b) of Section 11 (1) of the Act. Power conferred
under clauses (a) and (b) of Section 11 (1) of the Act could not be
exercised by the named authorities under Section 21 of the
General Clauses Act as these authorities on whom such power has
been conferred under the Act are different from those who made
the orders. Therefore, conferment of such power was necessary as
Parliament rightly found that Section 21 of the General Clauses
Act was not adequate to meet the situation. Thus, while not
affecting in any manner and expressly preserving the power
under Section 21 of the General Clauses Act of the original
authority making the order, power to revoke or modify has
been conferred on the named authorities.”
15. This observation is reiterated by the Apex Court in the case of
Kamleshkumar Ishwardas Patel (supra) also in para 26. However,
Constitution Bench in Kamleshkumar Ishwardas Patel (supra) was aware
of different provisions of Act of 1980 and the realm of COFEPOSA Act and
PIT NDPS Act. Therefore, while interpreting the same, Apex Court in para 34
has held as under :-
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34. In the National Security Act there is an express provision
[Section 3(4)] in respect of orders made by the District Magistrate
or the Commissioner of Police under Section 3 (3) and the District
Magistrate or the Commissioner of Police who has made the order
is required to forthwith report the fact to the State Government to
which he is subordinate. The said provision further prescribes that
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. This would show that it is the approval
of the State Government which gives further life to the order
which would otherwise die its natural death on the expiry of
twelve days after its making. It is also the requirement of Section 3
(4) that the report should be accompanied by the grounds on which
the order has been made and such other particulars as, in the
opinion of the said officer, have a bearing on the matter which
means that the State Government has to take into consideration the
grounds and the said material while giving its approval to the
order of detention. The effect of the approval by the State
Government is that from the date of such approval the detention is
authorised by the order of the State Government approving the
order of detention and the State Government is the detaining
authority from the date of the order of approval. That appears to
be the reason why Section 8 (1) envisages that the
representation against the order of detention is to be made to
the State Government. The COFEPOSA Act and the PIT
NDPS Act do not require the approval of an order made by the
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COFEPOSA Act and PIT NDPS Act is that the State Government
shall within 10 days forward to the Central Government a report in
respect of an order that is made by the State Government or an
officer specially empowered by the State Government. An order
made by the officer specially empowered by the State Government
is placed on the same footing as an order made by the State
Government because the report has to be forwarded to the Central
Government in respect of both such orders. No such report is
required to be forwarded to the Central Government in respect of
an order made by an officer specially empowered by the Central
Government. Requirement regarding forwarding of the report
contained in Section 3(2) of the COFEPOSA Act and the PIT
NDPS Act cannot, therefore, afford the basis for holding that an
order made by an officer specially empowered by the central
Government or the State Government acquires deemed approval of
that government from the date of its issue. Approval, actual or
deemed, postulates application of mind to the action being
approved by the authority given approval. Approval of an order of
detention would require consideration by the approving authority
of the grounds and the supporting material on the basis of which
the officer making the order had arrived at the requisite
satisfaction for the purpose of making the order of detention.
Unlike Section 3 (4) of the National Security Act there is no
requirement in the COFEPOSA Act and the PIT NDPS Act
that the officer specially empowered for the purpose of making
of an order of detention must forthwith send to the concerned
government the grounds and the supporting material on the
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basis of which the order of detention has been made. Nor is it
prescribed in the said enactments that after the order of
detention has been made by the officer specially empowered
for that purpose the concerned government is required to
apply its mind to the grounds and the supporting material on
the basis of which the order of detention was made. The only
circumstance from which inference about deemed approval is
sought to be drawn is that the order is made by the officer
specially empowered for that purpose by the Government
concerned. Merely because the order of detention has been made
by the officer who has been specially empowered for that purpose
would not, in our opinion, justify the inference that the said order
acquires deemed approval of the government that has so
empowered him, from the date of the issue of the order so as to
make the said government the detaining authority. By specially
empowering a particular officer under Section 3 (2) of the
COFEPOSA Act and the PIT NDPS Act the Central Government
or the State Government confers an independent power on the said
officer to make an order of detention after arriving at his own
satisfaction about the activities of the person sought to be
detained. Since the detention of the person detained draws its legal
sanction from the order passed by such officer, the officer is the
detaining authority in respect of the said person. He continues to
be the detaining authority so long as the order of detention remains
operative. He ceases to be the detaining authority only when the
order of detention ceases to operate. This would be on the expiry
of the period of detention as prescribed by law or on the order
being revoked by the officer himself or by the authority mentioned
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in Section 11 of the COFEPOSA Act and Section 12 of the PIT
NDPS Act. There is nothing in the provisions of these enactments
to show that the role of the officer comes to an end after he has
made the order of detention and that thereafter he ceases to be the
detaining authority and the concerned government which had
empowered him assumes the role of the detaining authority. We
are unable to construe the provisions of the said enactment as
providing for such a limited entrustment of power on the officer
who is specially empowered to pass the order. An indication to
the contrary is given in Section 11 of the COFEPOSA Act and
Section 12 of the PIT NDPS Act which preserve the power of
such officer to revoke the order that was made by him. This
means that the officer does not go out of the picture after he
has passed the order of detention. It must, therefore, be held
that the officer specially empowered for that purpose
continues to be the detaining authority and is not displaced by
the concerned government after he has made the order of
detention. Therefore, by virtue of his being the detaining
authority he is required to consider the representation of the
person detained against the order of detention.”
16. If Section 8 of the Act of 1980 is seen in juxtaposition to Section 7 of
the Act of 1950, then it gives an impression that once a person is detained in
pursuance of detention order, then he has to be given reasons for his
detention and opportunity to make representation against the order to the
appropriate Government.
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17. “Appropriate Government” is defined in Section 2 (a) of the Act, 1980
which in the present case is State Government. Therefore, Constitution Bench
while referring the judgments passed by the Apex Court earlier in the case of
Abdul Karim (supra), Pankaj Kumar Chakrabarty (supra) and
Jayanarayan Sukul (supra) held that representation in the case of Act of
1980 is to be made to the State Government.
18. Now the question arises regarding effect of Section 21 of Act of 1897
vis-a-vis Section 14 of the Act of 1980. True it is, that the authority, which
has passed the order, can revoke it and if guidance given by the Apex Court in
the case of Ibrahim Bachu Bafan (supra) is considered, then beside State
Government, the detention authority has also right to revoke the detention
order but in the present case in statutory set up of Act of 1980, D.M. can
revoke the order till it is approved by the State Govt. Thereafter, D.M. has no
authority to consider the order even for revocation. But so far as
consideration of representation is concerned, said authority lies with the
appropriate Government. Therefore, even if the authority of revocation may
be available to the D.M. for 12 days as outer limit or till approved by the
State Govt. (which can happen before 12 days even), still representation is to
be made to the State Government and not to the Collector. Section 8 also
mandates so. Interpreting that legal framework, Constitution Bench of Apex
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Court clarified the position in different paragraphs, specially in para 34 of the
judgment referred hereinabove.
19. Full Bench of this Court in the case of Kamal Khare (supra), while
relying upon the judgment of Constitution Bench of Apex Court in the case of
Kamleshkumar Ishwardas Patel (supra), apparently lost sight of distinction
carved out by the Constitution Bench, which is prominently reflected in para
34 of the said judgment. Similarly, the judgments referred in the case of
Abdul Karim (supra), Pankaj Kumar Chakrabarty (supra) and
Jayanarayan Sukul (supra) although passed in the realm of Act of 1950 and
hold that the appropriate Government shall consider the representation but
with same object and more or less similar provisions Act of 1980 is framed,
therefore, analogy can be drawn from those judgments which were passed in
statutory realm of Act of 1950. Therefore, this Court is bound by guidance
given by the Apex Court. Even Section 8 of Act of 1980 also mandates for
consideration of representation by the appropriate Government.
20. One more aspect deserves consideration is that as per Section 8 of the
Act of 1980, detention authority shall submit grounds to the detenue on which
the order has been passed, ordinarily not later than five days and in
exceptional circumstances not later than 10 days from the date of detention.
Section 3 (4) of the Act of 1980 mandates that the order shall remain in force
not more than 12 days unless approved by the State Government. It means,
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for example, if in exceptional circumstances on 10 th day grounds have been
furnished to the detenue, then as per proviso to sub section (4) of Section 3,
only five days extra are available to the detenue to make representation and to
get the representation decided by D.M. because after 12 days (or 15 days in
exceptional circumstances, detention order may meet natural death if it is not
approved by the State Government. In other words, after 12 days (or 15 days
as the case may be), D.M. ceases to be detaining authority.
21. Even otherwise, the moment D.M. passes the order and refers the
matter to the appropriate Government, he becomes functus officio. Record is
sent with the order to the appropriate Government, therefore, DM would not
be in a position to take decision over any representation preferred by detenue.
22. Therefore, no logic exists for consideration of representation by D.M.
Therefore, making representation and taking decision over representation
would not be an effective remedy for the detenue. Therefore, if grounds are
furnished within five days, and if representation is made by the detenue
before the State Government, then it can be decided by the State Government
without delay and as per Section 14 of the Act of 1980, it can be revoked even
by the State Government at any time. Therefore, scheme and provisions of
Act of 1980 indicates that no illegality has been caused by D.M. if detenue
has not given option to make representation before D.M. himself. Detenue
has right to make representation before the State Government.
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23. However, it is apposite and desirable that clarity be brought to the issue
regarding consideration of representation by D.M. and/or by appropriate
Government. If representation can be decided by DM, then whether non-
mentioning of the fact in the impugned order about right of detenue to make
representation before D.M. vitiates the order or not is another question.
24. Therefore, this Court deems fit to make a reference to Hon’ble the
Chief Justice with a recommendation that it be placed before a Larger Bench
as per Chapter IV Rule 8 to Rule 12 of The High Court of Madhya Pradesh
Rules, 2008. Questions for reference are as under :-
(i) Whether in view of clarification and distinction carved out
by the Constitution Bench of the Apex Court in the case of
Kamleshwar Ishwardas Patel (supra), D.M. has no
authority to consider representation of detenue and
representation can only be considered by the appropriate
Government ?
(ii) Whether Full Bench of this Court in the case of Kamal
Khare (supra) did not consider the law propounded by
Apex Court in the case of Kamleshwar Ishwardas Patel
(supra) specially in para 34 in correct perspective and
wrongly held that D.M. has the authority to consider the
representation ?
(iii) In view of Section 8 of the Act of 1980, where power is
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considered by appropriate Government ?
(iv) If D.M. has not disclosed the fact that representation can
be made to the D.M. also, whether it vitiates the process ?
(v) Whether judgment of the Full Bench of this Court in the
case of Kamal Khare (supra) lays down correct law so
far as present issue is concerned, in the light of judgment
pronounced by Constitution Bench of the Apex Court in
the case of Kamleshwar Ishwardas Patel (supra).
25. At this stage, counsel for the petitioner prays for interim relief and
release of petitioner during pendency of petition.
26. Since the matter is to be refereed to Larger Bench, therefore, petitioner
may prefer appropriate application before Larger Bench or avail remedy
available to him under Section 15 of the Act of 1980 before appropriate
Government (if available) in accordance with law.
27. Registry of this Court is directed to place the matter before Hon’ble the
Chief Justice with a request for constitution of a Larger Bench either at
Principal Seat Jabalpur or at Bench Gwalior, as deem fit.
(ANAND PATHAK) (PUSHPENDRA YADAV)
JUDGE JUDGE
SP
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