The obligation of the State Government under section 3(5) of the National Security Act is to ensure that the report of detention is received by the Central Government within the prescribed period of seven days.

JUDGMENT - C.S. DHARMADHIKARI, J.:---As all these writ petitions involve common questions of law and facts, they were heard together and are being disposed of by the judgment. In these writ petitions the detenus were detained by the Commissioner of Police, Thane in exercise of powers conferred upon him by section 3(2) of the National Security Act, with a view to preventing them from acting in any manner prejudicial to the maintenance of public order. Together with the orders of detention, grounds of detention and the copies of the documents referred to and relied upon were also supplied to the detenus. It is these orders of detention and the continued detention of the detenus which are challenged in these writ petitions.

2. It is not necessary to make a detailed reference to the various averment made in the petitions or in the affidavit interplay, since the Counsel for the petitioners has mainly argued before us only the questions of law which are common to all these writ petitions.

3. Shri Kotwal, the learned Counsel appearing for the petitioner contended before us that the continued detention of the detenus is bad in law since admittedly the State Government has reported the fact of the detention to the Central Government, together with the grounds on which the orders have been made and other particulars having a bearing on the necessity for the order, after a period of seven days, from the date of approval of the order by the State Government. It is not disputed by the learned Counsel appearing for the Union of India Shri Govilkar that the reports of the State Government were received much after the said period. However, according to the learned Public Prosecutor Shri More appearing for the State Government and Shri Govilkar, the learned Counsel for the Union not India, the obligation of the State Government under section 3(5) of the Act is only to send the report of should be received by the Central Government within the said period. In these cases the letters containing the reports were sent by the State Government within 7 days, though they were received much later, and therefore, according to the learned Counsel appearing for respondents, the provisions of section 3(5) are duly complied with.

4. In support of his contention Shri Kotwal has placed strong reliance upon the decision of the Supreme Court in 1980(3) Supreme Court Cases page 295 (Sabir Ahmed v. Union of India)1, A.I.R. 1975 S.C. 2049 (Sher Mohammed v. State of West Bengal)2, and A.I.R. 1981 S.C. 828 (Lallubhai Johibhai Patel v. Union of India and others)3. It was also contended by Shri Kotwal that in the affidavit filed on behalf of the Union of India it is nowhere stated that Shri M.L. Kaul was authorised either orally or in writing to deal with the reports received from the State Government under section 3(5) of the National Security Act. Under section 14 of the Act, the power of revocation or modification of detention order is conferred upon the Central Government. Therefore, the person who has authority to issue orders of revocation or modification on alone, can consider the reports submitted by the State Government under section 3(5) of the Act. Since in the present cases Shri Kaul was not specifically authorised either to deal with the reports under section 3(5) or pass orders of revocation under section 14 of the said Act, he had no authority or jurisdiction to consider the reports submitted by the State Government. Therefore, on that count also the continued detention of the detenus is bad in law. However, it is contended by Shri Govilkar the learned Counsel appearing for the Union of India that under Entry No. 83 of the Allocation of Business Rules, 1961, the subject relating to the preventive detention for the reasons connected with the maintenance of public order is to be dealt with by the Home Department. Under these Rules, the reports received from the State Government are to be dealt with or disposed of by a person authorised in that behalf under t

Click Here to Read the rest of this document