The Indore division bench of the high court on October 6 not only revoked the stringent NSA, but also imposed a fine of Rs 10,000 on the state government for submitting an ‘incorrect statement’ about the detention order in the court.

“Pay Rs 10,000 as legal cost per case,” the court directed.

Hearing four joint habeas corpus writ petitions filed by the elder brother of 19-year-old accused Hakim, the two-member bench comprising of Justices S.C. Sharma and Shailendra Shukla observed that the collector had invoked NSA charges against 19-year-old Hakim and three other accused on September 4, 2020, for carrying a sword during a Muharram procession last year. With the exception of one, the accused persons did not have any criminal record.

“After hearing both sides, it appears that the district magistrate acted with non-application of mind and passed detention order under NSA. Preventive detention involves serious encroachment on the right of personal liberty and therefore, it is the solemn duty of courts to ensure that this power is exercised strictly in accordance with the requirement of the Constitution and the law,” the court observed.

Last month, on September 15, the Indore bench of the high court struck down the provisions of the NSA imposed by the Indore collector on five Muslims for participating in a Muharram procession on August 30. The court also referred to this case while hearing Hakim’s brother’s petition. 

On September 4, the Rajgarh district collector invoked the NSA against Hakim, Salman, Abdul Karim and Zahir Khan for allegedly smuggling sharp-edged weapons and potentially disturbing the communal harmony of the district on Muharram and Ganesh Chaturthi.

When the matter reached the Indore high court, the court sought a reply from the police over the issue. In its reply to the court, the Rajgarh police said that the accused had carried swords in a procession on Muharram last year. So, to maintain peace and to “prevent them from acting in any matter prejudicial to the security of the state”, the SP submitted a report on September 3 and the district collector passed the NSA detention order the next day, the police claimed.

Nevertheless, the bail petition of one of the accused Hakim, filed by his elder brother, said that the Rajgarh police had detained him on the intervening night of August 23 and 24 and later booked him under section 25 of the Arms Act and sent him to the district jail. On September 11, he was granted bail by the court.

But, on September 4, the Rajgarh district collector invoked NSA charges against Hakim and three others and exercising his powers under Section 3 of National Security Act, 1980, passed an order of detention.

“The brother of the petitioner is not a hardcore criminal and was only charged with section 25 of the Arms Act. But, the collector invoked NSA against him that too when he was in jail for an alleged crime which was done a year ago. The order of detention has been passed in a vindictive manner,” Manish Vijaywargiya, the petitioner’s counsel, argued in court.

He further argued that the order of detention under NSA was required to be approved within 12 days but the same has not been done. “The district administration had not got approval for the detention order within 12 days. The detention order is based solely on his participation in Muharram, despite the fact that he is not a hard core criminal,” argued Vijaywargiya in the court.

The grounds of detention was served to the petitioner’s brother along with supporting documents on September 5, when he was in jail and the state government has accorded approval to the detention order on September 14. The approval granted by the state government was served to the petitioner’s brother through a letter dated September 17 and the matter was still pending before the advisory board.

The district administration submitted an order in the court, dated September 17, stating that approval for NSA detention was granted on September 14. It has been stated that the impugned order was passed because he had participated in the Muharram procession.

“This court really fails to understand that based upon a Rojnamcha entry, dated August 30, 2020, in which it was stated by police that the brother of the petitioner participated in Muharram procession last year carrying swords, how can he be a threat to law and order? Participation in Muharram last year, even if it is presumed to be correct, has got no relevance with the procession which was to take place this year,” the bench noted.

The court further questioned why the order was not issued on September 14 when the approval was granted. It appears the respondents (administration) have ante-dated the order of approval. 

“It appears that such an incorrect statement is being made before this court in order to detain the petitioner’s brother under NSA… In this case, the district magistrate acted with non-application of mind and passed detention order under NSA. Similarly, in the other petitions, approval was not given within 12 days, so the order of NSA is revoked in them also,” the court said.At the end of the verdict, the court advised the officials to only use the NSA for serious matters.