IMPORTANT POINT
In case of an order of detention by an officer under sub-section (2) of Section 3 of Maharashtra Prevention of Dangerous Activities of Slumlords, Boot-leggers, Drugs Offenders and Dangerous Persons Act, 1981, non communication to the detenu that he has a right of making a representation to the Detaining Authority constitutes an infraction of a valuable right of the detenu under Article 23(5) of the Constitution, and as such, vitiates the order of detention.

Headnote:Maharashtra Prevention of Dangerous Activities of Slumlords, Boot-leggers, Drugs Offenders and Dangerous Persons Act, 1981-Section 3(2)-Preventive Detention-Legality of order-Non communication to detenu that he has a right of making representation to Detaining Authority-Constitutes infraction of valuable right of detenu under Article 25 of Constitution of India-Detention order vitiated.
       An analysis of the provisions of the Maharashtra Act indicates that Section 3 empowered the State Government to issue an order of detention under sub-section (1) and the District Magistrate or Commissioner of Police on being authorised by the State Government could issue an order of detention under sub-section (2). When an officer exercises power and issues orders of detention under sub-section (2) then he is duty bound to report forthwith the fact of detention and the grounds on which the order of detention is made and/or other particulars to the State Government. On receipt of the report, the grounds and the particulars from the concerned officer the State Government is required to approve the order of detention within 12 days, and if it is not approved within 12 days then it automatically lapses. (Para 5)
       Section 8 specifically provides that a detenu must be communicated the grounds on which the order of detention has been made as soon as may be, but not later than 5 days from the date of detention. This mandatory obligation is both on the authority who passes an order of detention either under sub-section (1) or under sub-section (2). In other words, if the State Government issues an order of detention under sub-section (1), or if the officer empowered issues an order of detention under sub-section (2) then the same must be communicated to the detenu not later than 5 days from the date of detention. It is no doubt true that in latter part of sub-section (1) of Section 8 it has been categorically mentioned that an earliest opportunity of making a representation against the order to the State Government should be afforded. But that does not make the State Government the detaining authority as soon as the factum of detention is communicated by the person concerned exercising power under sub-section (2) as provided under sub-section (3) thereof nor does it take away the power of entertaining a representation from a detenu so long as the order of detention has not been approved by the State Government. It is undoubtedly true that Section 8(1) in terms, provides for a representation of being made to the State Government but, in a case where an officer other than the State Government issues an order of detention under sub section (2) of Section 3 his powers as the detaining authority to deal with the representation under the provisions of Section 21 of the Bombay General Clauses Act, 1904, cannot be said to be taken away merely because Section 8(1) specifically provides for making a representation to the State Government. (Para 5)
       It is too well known a principle of construction of statutes that the legislature engrafted every part of a statute for a purpose and the legislative intention is that every part of the statute should be given effect. The legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons. We are cognizant of the principle ex majori cautela but it is difficult for us to apply the said principle to Section 14 of the Maharashtra Act and even hold the same to be tautologous in as much as it has never been shown as to what was the necessity for the legislature to protect the power under Section 21 of the Bombay General Clauses Act, to an order of detention made under the Maharashtra Act. The only logical and harmonious construction of the provisions would be that in a case where an order of detention is issued by an officer under sub-section (2) of Section 3 of the Act, notwithstanding the fact that he is required to forthwith report the factum of detention together with the grounds and materials to the State Government and notwithstanding the fact that the Act itself specifically provides for making a representation to the State Government under Section 8(1), the said detaining authority continues to be the detaining authority until the order of detention issued by him is approved by the State Government within a period of 12 days from the date of issuance of detention order. Consequently, until the said detention order is approved by the State Government the detaining authority can entertain a representation from a detenu and in exercise of his power under the provisions of Section 21 of Bombay General Clauses Act could amend, vary or rescind the order, as is provided under Section 14 of the Maharashtra Act. Such a construction of powers would give a full play to the provisions of Section 8 (1) as well as Section 14 and also Section 3 of the Maharashtra Act. This being the position, non-communication of the fact to the detenu that he could make a representation to the detaining authority so long as the order of detention has not been approved by the State Government in a case where an order of detention is issued by an officer other than the State Government under sub-section (2) of Section 3 of the Maharashtra Act would constitute an infraction of a valuable right of the detenu under Article 22(5) of the Constitution. (Para 5)
       Even under the Maharashtra Act a detenu will have a right to make a representation to the detaining authority so long as the order of detention has not been approved by the State Government and consequently non-communication of the fact to the detenu that he has a right to make representation to the detaining authority would constitute an infraction of the valuable constitutional right guaranteed to the detenu under Article 22(5) of the Constitution and such failure would make the order of detention invalid. (Para 6)

JUDGMENT

Pattanaik, J.-Leave granted.

2. All these appeals have been filed by the State of Maharashtra assailing the correctness of the decision of the Full Bench of Bombay High Court, Bench at Nagpur, answering the question referred to, in favour of the detenu and against the State. The question that had been referred to the Full Bench for being answered is, whether in case of an order of detention by an officer under sub-section (2) of Section 3 of Maharashtra Prevention of Dangerous Activities of Slumlords, Boot-leggers, Drugs Offenders and Dangerous Persons Act, 1981, (hereinafter referred to as "Maharashtra Act"), non communication to the detenu that he has a right of making a representation to the Detaining Authority constitutes an infraction of a valuable right of the detenu under Article 23(5) of the Constitution, and as such, vitiates the order of detention. There is no dispute that in all these cases the order of detention had been passed not by the State Government under Section 3(1) of the Maharashtra Act but by the concerned officer empowered by the State Government under sub-section (2) of Section 3 of the Act. It is also not disputed that while communicating the detenu the grounds of detention it has not been indicated therein that he has a right to make a representation to the Detaining Authority, though in the said communication it was mentioned that the detenu could make a representation to the State Government as provided under Section 8(1) of the Maharashtra Act. The Division Bench of Bombay High Court on this aspect had taken inconsistent views and, therefore, the matter had been referred to the Full Bench. The Full Bench relying upon the Constitution Bench decision of this Court in Kamlesh Kumar Ishwardas Patel v. Union of India1 and on thorough analysis of the different provisions of the Maharashtra Act came to the conclusion that an order issued under sub-section (2) of Section 3 of the said Act cannot remain valid for more than 12 days unless the same is approved by the State Government as provided under sub-section (3) of Section 3 of the said Act. It was further held that until the order is approved by the State Government in exercise of its power under sub-section (3) of Section 3, the Detaining Authority who had issued the order of detention under sub-section (2) retains the power of entertaining a representation and annul, revoke or modify the same as provided under Section 14(1) of the Act read with Section 21 of the Bombay General Clauses Act. It has further been held that failure on the part of the Detaining Authority in a case where order of detention is issued under sub-section (2) of Section 3 to the detenu that he has a right to make a representation constitutes an infraction of the rights guaranteed under Article 22(5), and as such, the detention becomes invalid on that score. This conclusion is based upon the ratio of the Constitution Bench decision of this Court in Kamlesh Kumar s case (supra) even though in Kamlesh Kumar s case the Court was considering a case of detention under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (for short COFEPOSA ). Following the opinion on the question of law referred, the Division Bench of the High Court having set aside the order of detention the State Government is in appeal before us.

3. Mr. Deshpande, the learned counsel appearing for the State of Maharashtra and Mrs. Ramani, learned counsel appearing for the State Government in some of these appeals vehemently contended that the decision of Kamlesh Kumar s case (supra) will have no application inasmuch as the provisions of COFEPOSA are entirely different from the provisions of Maharashtra Act, with which we are concerned in the present appeals and the High Court, therefore, committed error in following Kamlesh Kumar s case (supra) and answering the point of reference. According to Mr. Deshpande the powers under sub-section (2) of Section 3 b

Click Here to Read the rest of this document

2000 Supreme(SC) 1239

Cases Referred (3)