IMPORTANT POINT
District Magistrate or Police Commissioner can exercise power conferred by Section 3(2) of the National Security Act, l980.

Judgment

D. A. DESAI, J. :- This appeal by special leave was heard on Sept. 1, 1982, and having been satisfied that the detention order was vitiated, we made an order quashing and setting aside the order of detention, reserving that the reasons would follow. Here are the reasons.

2. Raj Kishore Prasad s/o. Mahendra Prasad was detained pursuant to an order dated Sept. 23, 1981, made by the District Magistrate, Gopalganj, under Section 3 (2) of the National Security Act, 1980 (Act for short), on the ground that he be prevented from acting in any manner prejudicial to the maintenance of public order. This order was served upon the detenu on Sept. 25, 1981, and he was taken into custody and was detained in Muzaffarpur Central Jail. The detaining authority simultaneously served upon him the grounds of detention. The order of detention was approved by the State Government on Oct. 2, 1981, as required by subsection (4) of Section 3 of the Act. He made a representation inviting the detaining, authority to quash the order of detention. In the meantime, however, the case of the detenu was referred to the Advisory Board on Oct. 5, 1981. The representation made by the detenu was rejected by the Chief Minister on Nov. 16. 1981. The Advisory Board having reported that there was in its opinion sufficient case for detention of the person, the detention order was confirmed by the appropriate Government. Detenu thereupon filed a writ petition in the Patna High Court.

3. On behalf of the detenu four contentions were advanced before the High Court inviting it to invalidate the order. They were :

(i) that even if the grounds for detention were accepted on their face value they may indicate that there may be a reasonable apprehension of disturbance of law and order situation but there is nothing in the grounds to indicate that the activities of the detenu were such that it was necessary to prevent him from acting in any manner prejudicial to the maintenance of public order. In other words, the grounds disclosed a possible disturbance to law and order but not disturbance to the maintenance of public order;

(ii) of the four grounds relied upon for founding the detention order, one ground related to an incident of 1978, which was a stale one and it would vitiate the order;

(iii) there was inordinate delay in considering the representation of the detenu and the inordinate unexplained delay of 28 days would vitiate the order;

(iv) the representation of the detenu was rejected after the receipt of the report of the Advisory Board which would imply that the representation of the detenu was never forwarded to the Advisory Board and, therefore, the case of the detenu went by default before the Advisory Board and accordingly the order would be vitiated.

4. An additional ground was urged before this Court that even though the representation was addressed to the detaining authority, viz., the District Magistrate, Gopalganj, he never applied his mind to the representation and never took any decision with regard to the representation of the detenu but he forwarded the same with his remarks to the Chief Minister who rejected the same and thus the failure of the detaining authority to examine the representation would vitiate the order. We would first examine the contention raised before this Court.

5. Section 3 confers power to make orders for detention of certain persons. Subsection (2) provides as under :

"3. Power to make orders detaining certain persons -

(2) The Central Government or 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 security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained.

Explanation :- For the purposes of this sub-section, "acting