STATE OF MAHARASHTRA & ORS. versus BALU S/O WAMAN PATOLE on 13 November 2019

Conclusion

1. Delay condoned. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned Judgmentand Order dated 26.03.2019 passed by the High Court of Judicature atGBombay, Bench at Aurangabad, in Criminal Writ Petition No. 155 of2019, by which the High Court has quashed and set aside the orderdated 15.10.2018 passed by the Commissioner of Police, Aurangabadunder Sections 3(1) and (2) of the Maharashtra Prevention of DangerousActivities of Slumlords, Bootleggers, Drug-Offenders, DangerousHPersons, Video Pirates, Sand Smugglers and Persons Engaged in Black- Marketing of Essential Commodities Act, 1981 (hereinafter referred toas the Act) and also the order of confirmation of the order of detentionmade by the State Government, the detaining authority has preferredthe present appeal.

3. That in exercise of powers under Sections 3(1) and (2) of theAct, the Commissioner of Police, Aurangabad passed an order to detainthe respondent herein treating and considering the respondent as a‘dangerous person’. The respondent herein was served with the groundsof detention. The order of detention was approved by the StateGovernment. The matter was referred to the Advisory Board. TheAdvisory Board gave the opinion that there was sufficient cause forpreventive detention of the respondent-detenu. That, thereafter thedetention order was approved by the State Government. The detentionorder passed by the detaining authority, approved by the StateGovernment, came to be challenged by the respondent herein before theHigh Court. That, by the impugned Judgment and Order, the High Courthas set aside the detention order on merits as well as on the ground thatthe order of detention prescribing the detention for 12 months is in breachof Section 3 of the Act. Feeling aggrieved with the impugned Judgmentand Order passed by the High Court, the detaining authority has preferredthis appeal.

4. Though served, nobody has remained present on behalf of therespondent-detenu. Shri Nishant Ramakantrao Katneshwarkar, learnedcounsel appearing on behalf of the State-detaining authority hasvehemently submitted that so far as one of the grounds on which theHigh Court has set aside the detention order, namely, that the detentionorder prescribing the detention for 12 months is contrary to Section 3 ofthe Act, is not sustainable at law. It is submitted that the said finding iscontrary to the law laid down by this Court in the case of T. Devaki v.Government of Tamil Nadu (1990) 2 SCC 456.

4.1 It is vehemently submitted by Shri Katneshwarkar, learnedcounsel appearing on behalf of the State that while holding that thedetention order is in breach of Section 3 of the Act, the High Court hasnot properly appreciated and/or considered the scope and ambit of Section3 and Section 13 of the Act. It is submitted that the High Court has notconsidered Section 3 of the Act in its proper perspective. It is submittedthat Section 3(2) of the Act refers to delegation of powers to the DistrictMagistrate or the Commissioner of Police to detain a person under Section A

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A3(1) of the Act and not with respect to the period of detention to bementioned in the detention order. It is submitted that, as per Section 13of the Act, a person can be detained for such period not exceeding themaximum period of 12 months from the date of detention. It is submittedthat neither Section 3 nor Section 13 of the Act mandates the detainingauthority to specify the period for which the detenu is required to beBdetained. In support of his above submissions, Mr. Katneshwarkar, learnedcounsel appearing on behalf of the State has heavily relied upon para 10of the decision of this Court in T. Devaki (supra).

5. We have heard learned counsel appearing on behalf of theState at length.C

5.1 Now, so far as the impugned Judgment and Order passed bythe High Court quashing and setting aside the order of detention isconcerned, having gone through the impugned Judgment and Orderpassed by the High Court, we are of the view that the same is notrequired to be interfered with by this Court in exercise of powers underDArticle 136 of the Constitution of India. However, at the same time, oneof the grounds on which the detention order is set aside, namely, that inthe detention order the detaining authority prescribed the period of detentionfor 12 months and the same is in breach of Section 3 of the Act isconcerned, considering the provisions of Section 3 read with Section 13Eof the Act, the same cannot be sustained. Sections 3 and 13 of the Actread as under:

“3. Power to make orders detaining certain persons.—(1) The State Government may, if satisfied with respect to anyperson that with a view to preventing him from acting in any mannerFprejudicial to the maintenance of public order, it is necessary so todo, make an order directing that such person be detained.

(2) If, having regard to the circumstances prevailing or likelyto prevail in any area within the local limits of the jurisdiction of aDistrict Magistrate or a Commissioner of Police, the StateGovernment is satisfied that it is necessary so to do, it may, byorder in writing, direct, that during such period as may be specifiedin the order, such District Magistrate or Commissioner of Policemay also if satisfied as provided in sub-section (1), exercise thepowers conferred by the said sub-section:

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Provided that the period specified in the order made by theState Government under this sub-section shall not, in the firstinstance, exceed six months, but the State Government may, ifsatisfied as aforesaid that it is necessary so to do, amend suchorder to extend such period from time to time by any period notexceeding six months at any one time.

(3) When any order is made under this section by an officermentioned in sub-section (2), he shall forthwith report the fact tothe State Government, together with the grounds on which theorder has been made and such other particulars as, in his opinion,have a bearing on the matter, and no such order shall remain inforce for more than twelve days after the making thereof, unless,in the meantime, it has been approved by the State Government.”

“13. Maximum period of detention.— The maximumperiod for which any person may be detained, in pursuance ofany detention order made under this Act, which has been confirmedunder section 13, shall be twelve months from the date ofdetention.”

On fair reading of Section 3 of the Act, more particularly, sub-section (2) of Section 3 of the Act, upon which much reliance has beenplaced by the High Court, sub-section (2) of Section 3 relates to theperiod for which the order of delegation issued by the State Governmentis to remain in force. It has no relevance to the period of detention. TheLegislature has entrusted the power of detention to the State Government.However, those powers can be delegated to the Jurisdictional DistrictMagistrate or the Commissioner of Police, as provided in sub-section(2) of Section 3 of the Act. As per Section 13 of the Act, a person canbe detained under the Act for such period not exceeding the maximumperiod of 12 months from the date of detention. The order of detentionpassed by the authorities mentioned in sub-section (2) of Section 3 ofthe Act is required to be confirmed by the State Government. As perSection 13 of the Act, once the order of detention is confirmed by theState Government, the maximum period for which the detenu shall bedetained cannot exceed 12 months from the date of detention. The Actnowhere requires the detaining authority to specify the period for whichthe detenu is required to be detained.

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5.2 An identical question came to be considered by this Court inthe case of T. Devaki (supra). In paragraph 10, this Court has observedand held as under:

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“10. Provisions of the aforesaid sections are inbuilt safeguardsagainst the delays that may be caused in considering therepresentation. If the time frame, as prescribed in the aforesaidprovisions is not adhered to, the detention order is liable to bestruck down and the detenu is entitled to freedom. Once the orderof detention is confirmed by the State Government, maximumperiod for which a detenu shall be detained cannot exceed 12months from the date of detention. The Act nowhere requires thedetaining authority to specify the period for which the detenu isrequired to be detained. The expression “the State Governmentare satisfied that it is necessary so to do, they may, by order inwriting direct that during such period as may be specified in theorder” occurring in sub-section (2) of Section 3 relates to theperiod for which the order of delegation issued by the StateGovernment is to remain in force and it has no relevance to theperiod of detention. The legislature has taken care to entrust thepower of detention to the State Government; as the detentionwithout trial is a serious encroachment on the fundamental rightof a citizen, it has taken further care to avoid a blanket delegationof power, to subordinate authorities for an indefinite period byproviding that the delegation in the initial instance will not exceeda period of three months and it shall be specified in the order ofdelegation. But if the State Government on consideration of thesituation finds it necessary, it may again delegate the power ofdetention to the aforesaid authorities from time to time but at notime the delegation shall be for a period of more than three months.The period as mentioned in Section 3(2) of the Act refers to theperiod of delegation and it has no relevance at all to the period forwhich a person may be detained. Since the Act does not requirethe detaining authority to specify the period for which a detenu isrequired to be detained, order of detention is not rendered invalidor illegal in the absence of such specification.”

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5.3 Applying the law laid down by this Court in the aforesaiddecision and, even otherwise, considering the provisions of Section 3read with Section 13 of the Act, the High Court has committed a graveerror in holding that as the period of detention of 12 months was mentionedHin the order of detention, the same is contrary to Section 3 of the Actand, therefore, the same is liable to be quashed and set aside.

5.4 The High Court has wrongly relied upon and mis-interpretedSection 3 (2) of the Act with respect to the period of detention. Asobserved hereinabove, sub-section (2) of Section 3 of the Act relates tothe period for which the order of delegation issued by the StateGovernment is to remain in force and does not relate to the period ofdetention. Under the circumstances, the observations made by the HighCourt in paragraph 33 of the impugned Judgment and Order and one ofthe grounds on which the order of detention is set aside, namely, that asin the detention order the period of detention for 12 months is mentioned,the same is illegal, the same is contrary to sub-section (2) of Section 3 ofthe Act, cannot be sustained and deserves to be quashed and set aside.

5.5 Even the directions issued by the High Court in Clauses (IV),(V) and ((VI) of the operative part, namely,”(i) A copy of thisdecision to be sent to each District Legal Services Authority andalso to the High Court Legal Services Authority at places likeAurangabad, Mumbai, Nagpur and Goa for providing legal aid incases of preventive detention; (ii) A copy of this decision to be sentto Home Department for circulation, sending to detaining authority.After executing detention order a copy of detention order andgrounds of arrest need to be supplied by detaining authority toDistrict Legal Services Authority of that district within 48 hours ofthe detention; and(iii)District Legal Services Authority to give legalaid to detenu on the day when the copy of detaining authority isreceived. A copy of this decision to be supplied to the counselappointed through legal aid.”, are absolutely unwarranted and notrequired and the same deserve to be set aside.

6. In view of the above and for the reasons stated above, thoughwe confirm the impugned Judgment and Order passed by the High Courtquashing and setting aside the detention order on merits, we set asidethat part of the impugned Judgment and Order passed by the High Courtby which the High Court has set aside the order of detention on theground that as in the detention order the period of 12 months is mentioned,the same is contrary to sub-section (2) of Section 3 of the Act, moreparticularly the observations made by the High Court in paragraph 33 ofthe impugned Judgment and Order. The directions issued by High Courtcontained in Clauses (VI), (V) and (VI) of the operative portion of theimpugned Judgment and Order, reproduced hereinabove, are also quashedand set aside. Disposed of in the aforesaid terms.

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