1.M.R. SHAH, J. Delay condoned. Leave granted.
2.Feeling aggrieved and dissatisfied with the impugned Judgment and Order dated 26.03.2019 passed by the High Court of Judicature at Bombay, Bench at Aurangabad, in Criminal Writ Petition No. 155 of 2019, by which the High Court has quashed and set aside the order dated 15.10.2018 passed by the Commissioner of Police, Aurangabad under Sections 3(1) and (2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons, MEENAKSHI KOHLI Pirates, Sand Smugglers and Persons Engaged in Black- Video Marketing of Essential Commodities Act, 1981 (hereinafter referred to as the Act) and also the order of confirmation of the order of detention made by the State Government, the detaining authority has preferred the present appeal.
3.That in exercise of powers under Sections 3(1) and (2) of the Act, the Commissioner of Police, Aurangabad passed an order to detain the respondent herein treating and considering the respondent as a ‘dangerous person’. The respondent herein was served with the grounds of detention. The order of detention was approved by the State Government. The matter was referred to the Advisory Board. The Advisory Board gave the opinion that there was sufficient cause for preventive detention of the respondent-detenu. That, thereafter the detention order was approved by the State Government. The detention order passed by the detaining authority, approved by the State Government, came to be challenged by the respondent herein before the High Court. That, by the impugned Judgment and Order, the High Court has set aside the detention order on merits as well as on the ground that the order of detention prescribing the detention for 12 months is in breach of Section 3 of the Act. Feeling aggrieved with the impugned Judgment and Order passed by the High Court, the detaining authority has preferred this appeal.
4.Though served, nobody has remained present on behalf of the respondent-detenu. Shri Nishant Ramakantrao Katneshwarkar, learned counsel appearing on behalf of the State detaining authority has vehemently submitted that so far as one of the grounds on which the High Court has set aside the detention order, namely, that the detention order prescribing the detention for 12 months is contrary to Section 3 of the Act, is not sustainable at law. It is submitted that the said finding is contrary 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, learned counsel appearing on behalf of the State that while holding that the detention order is in breach of Section 3 of the Act, the High Court has not properly appreciated and/or considered the scope and ambit of Section 3 and Section 13 of the Act. It is submitted that the High Court has not considered Section 3 of the Act in its proper perspective. It is submitted that Section 3(2) of the Act refers to delegation of powers to the District Magistrate or the Commissioner of Police to detain a person under Section 3(1) of the Act and not with respect to the period of detention to be mentioned in the detention order. It is submitted that, as per Section 13 of the Act, a person can be detained for such period not exceeding the maximum period of 12 months from the date of detention. It is submitted that neither Section 3 nor Section 13 of the Act mandates the detaining authority to specify the period for which the detenu is required to be detained. In support of his above submissions, Mr. Katneshwarkar, learned counsel appearing on behalf of the State has heavily relied upon para 10 of the decision of this Court in T. Devaki (supra).
5.We have heard learned counsel appearing on behalf of the
State at length.
5.1 Now, so far as the impugned Judgment and Order passed
by the High Court quashing and setting aside the order of
detention is concerned, having gone through the impugned
Judgment and Order passed by the High Court, we are of the
view that the same is not required to be interfered with by this
Court in exercise of powers under Article 136 of the Constitution
of India. However, at the same time, one of the grounds on which
the detention order is set aside, namely, that in the detention
order the detaining authority prescribed the period of detention
for 12 months and the same is in breach of Section 3 of the Act is
concerned, considering the provisions of Section 3 read with
Section 13 of the Act, the same cannot be sustained. Sections 3
and 13 of the Act read as under:
“3. Power to make orders detaining certain
persons.— (1) The State Government may, if satisfied
with respect to any person that with a view to
preventing him from acting in any manner prejudicial
to the maintenance of public order, it is necessary so
to do, make an order directing that such person be
detained.
(2) 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 (1), exercise the powers
conferred by the said sub-section:
Provided that the period specified in the order
made by the State Government under this sub
section shall not, in the first instance, exceed six
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 six months at any one time.
(3) When any order is made under this section by
an officer mentioned in sub-section (2), he shall
forthwith report the fact to the State Government,
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.”
“13. Maximum period of detention.— The
maximum period for which any person may be
detained, in pursuance of any detention order made
under this Act, which has been confirmed under
section 13, shall be twelve months from the date of
detention.”
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
been placed by the High Court, sub-section (2) of Section 3
relates to the period for which the order of delegation issued by
the State Government is to remain in force. It has no relevance
to the period of detention. The Legislature has entrusted the
power of detention to the State Government. However, those
powers can be delegated to the Jurisdictional District Magistrate
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 can
be detained under the Act for such period not exceeding the
maximum period of 12 months from the date of detention. The
order of detention passed by the authorities mentioned in sub
section (2) of Section 3 of the Act is required to be confirmed by
the State Government. As per Section 13 of the Act, once the
order of detention is confirmed by the State Government, the
maximum period for which the detenu shall be detained cannot
exceed 12 months from the date of detention. The Act nowhere
requires the detaining authority to specify the period for which
the detenu is required to be detained.
5.2 An identical question came to be considered by this Court in
the case of T. Devaki (supra). In paragraph 10, this Court has
observed and held as under:
“10. Provisions of the aforesaid sections are
inbuilt safeguards against the delays that may be
caused in considering the representation. If the time
frame, as prescribed in the aforesaid provisions is not
adhered to, the detention order is liable to be struck
down and the detenu is entitled to freedom. Once the
order of detention is confirmed by the State
Government, maximum period for which a detenu
shall be detained cannot exceed 12 months from the
date of detention. The Act nowhere requires the
detaining authority to specify the period for which
the detenu is required to be detained. The expression
“the State Government are satisfied that it is
necessary so to do, they may, by order in writing
direct that during such period as may be specified in
the order” occurring in sub-section (2) of Section 3
relates to the period for which the order of delegation
issued by the State Government is to remain in force
and it has no relevance to the period of detention.
The legislature has taken care to entrust the power of
detention to the State Government; as the detention
without trial is a serious encroachment on the
fundamental right of a citizen, it has taken further
care to avoid a blanket delegation of power, to
subordinate authorities for an indefinite period by
providing that the delegation in the initial instance
will not exceed a period of three months and it shall
be specified in the order of delegation. But if the
State Government on consideration of the situation
finds it necessary, it may again delegate the power of
detention to the aforesaid authorities from time to
time but at no time 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 the
period of delegation and it has no relevance at all to
the period for which a person may be detained. Since
the Act does not require the detaining authority to
specify the period for which a detenu is required to
be detained, order of detention is not rendered
invalid or illegal in the absence of such specification.”
5.3 Applying the law laid down by this Court in the aforesaid
decision and, even otherwise, considering the provisions of
Section 3 read with Section 13 of the Act, the High Court has
committed a grave error in holding that as the period of detention
of 12 months was mentioned in the order of detention, the same
is contrary to Section 3 of the Act and, therefore, the same is
liable to be quashed and set aside.
5.4 The High Court has wrongly relied upon and mis-interpreted
Section 3 (2) of the Act with respect to the period of detention. As
observed hereinabove, sub-section (2) of Section 3 of the Act
relates to the period for which the order of delegation issued by
the State Government is to remain in force and does not relate to
the period of detention. Under the circumstances, the
observations made by the High Court in paragraph 33 of the
impugned Judgment and Order and one of the grounds on which
the order of detention is set aside, namely, that as in 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 of the 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 this
decision to be sent to each District Legal Services Authority and
also to the High Court Legal Services Authority at places like
Aurangabad, Mumbai, Nagpur and Goa for providing legal aid in
cases of preventive detention; (ii) A copy of this decision to be sent
to Home Department for circulation, sending to detaining authority.
After executing detention order a copy of detention order and
grounds of arrest need to be supplied by detaining authority to
District Legal Services Authority of that district within 48 hours of
the detention; and (iii) District Legal Services Authority to give legal
aid to detenu on the day when the copy of detaining authority is
received. A copy of this decision to be supplied to the counsel
appointed through legal aid.”, are absolutely unwarranted and not
required and the same deserve to be set aside.
6.In view of the above and for the reasons stated above, though we confirm the impugned Judgment and Order passed by the High Court quashing and setting aside the detention order on merits, we set aside the finding in the impugned Judgment and Order passed by the High Court by which the High Court has set aside the order of detention on the ground 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, more particularly the observations made by the High Court in paragraph 33 of the impugned Judgment and Order. The directions issued by High Court contained in Clauses (VI), (V) and (VI) of the operative portion of the impugned Judgment and Order, reproduced hereinabove, are also quashed and set aside. Disposed of in the aforesaid terms. [INDIRA BANERJEE] [M. R. SHAH] New Delhi, November 13, 2019.