The Detaining Authority, i.e., the District Magistrate or Commissioner of Police, who passed the detention order under the MPDA Act, has the power to revoke or modify the detention order till it remains in force, initially for a period of 12 days, unless, in the meantime, it has been approved by the State Government and thereafter in its capacity as a Detaining Authority, if subsequent circumstances change.

Headnote:
PREVENTIVE DETENTION - RIGHT TO MAKE REPRESENTATION - DETENTION ORDER PASSED BY DISTRICT MAGISTRATE OR COMMISSIONER OF POLICE - APPROVAL BY STATE GOVERNMENT - DELEGATION OF POWER - REVOCATION OR MODIFICATION OF DETENTION ORDER - RIGHT TO MAKE REPRESENTATION TO DETAINING AUTHORITY - SCOPE AND EXTENT - M.P.D. ACT, 1981, SEC. 3(1), (2), (3), 8, 14 - CONSTITUTION OF INDIA, ART. 22(5).
Fact of the Case:

The issue before the Court was whether a detenu has the right to make a representation to the Detaining Authority, i.e., the District Magistrate or Commissioner of Police, who passed the detention order under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (MPDA Act), before the order is approved by the State Government.
Finding of the Court:

The Court held that the detenu has the right to make a representation to the Detaining Authority, i.e., the District Magistrate or Commissioner of Police, who passed the detention order under the MPDA Act, before the order is approved by the State Government. The Court further held that the Detaining Authority has the power to revoke or modify the detention order till it remains in force, initially for a period of 12 days, unless, in the meantime, it has been approved by the State Government and thereafter in its capacity as a Detaining Authority, if subsequent circumstances change.
Issues: 1. Whether a detenu has the right to make a representation to the Detaining Authority, i.e., the District Magistrate or Commissioner of Police, who passed the detention order under the MPDA Act, before the order is approved by the State Government? 2. Whether the Detaining Authority has the power to revoke or modify the detention order?
Ratio Decidendi: The Court relied on the following principles to arrive at its decision: 1. Article 22(5) of the Constitution of India confers upon a detenu a right to make a representation against the order of his detention which, however, cannot be exercised by him, unless he is communicated the grounds upon which the order has been made. 2. The right under Clause (5) of Article 22 is, therefore, twofold: (a) the authority making the order must, as soon as may be, communicate to the detenu the grounds on which the order of detention has been made and (b) the detenu must also be afforded "the earliest opportunity of making a representation against the order". 3. Section 3 of the MPDA Act lays down the power to make orders detaining certain persons and provides that the power to make order detaining any person is vested with the State Government. 4. If it is 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, it may make an order directing that such person be detained. 5. Sub-section (2) of section 3 provides for delegation of such powers to a District Magistrate or a Commissioner of Police, and such delegation of powers to pass an order of detention has to be made by an order of the State Government in writing, directing 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. 6. Section 8 of the MPDA Act complies with the mandate of Clause (5) of Article 22 of the Constitution of India and provides for grounds of order of detention to be disclosed to the person affected by the order. 7. Section 14 of the MPDA Act provides that a detention order may, at any time, be revoked or modified by the State Government, notwithstanding that the order has been made by an officer mentioned in sub-section (2) of section 3.
Final Decision: The Court answered the reference made to it by holding that the Detaining Authority as contemplated under sub-section (2) of section 3 of the MPDA Act is competent to modify or revoke the order of detention till it remains in force, initially for a period of 12 days, unless, in the meantime, it has been approved by the State Government and thereafter in its capacity as a Detaining Authority, if subsequent circumstances change, by virtue of section 14 of the MPDA Act.

JUDGMENT

J.N. PATEL, J.:---Heard learned Counsel for the parties.

These two writ petitions came up for hearing before the Division Bench of this Court at Nagpur. As there was divergence of opinions between different Benches of the Court on the point in issue, an order of reference dated 21st December, 1999, came to be passed and this is how the matter has been placed before us for consideration.

2.The order of reference dated 21st December, 1999, is as under :

1. We have heard the two petitions at length.

2. A common ground challenging the impugned orders of detention is taken by the petitioner in these two petitions, which according to the petitioners, is sufficient to vitiate the orders, the ground being that Detaining Authority having failed to communicate to the detenu at the time of the service of the impugned order of detention that until the approval of the impugned order of detention by the State Government under section 3(3) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (hereinafter referred to as the M.P.D. Act, 1981) i.e., for a period of 12 days from the making of the impugned order of detention the detenu had a right to make representation to the Detaining Authority himself and, therefore, it is submitted that the non-communication of the aforesaid right to the detenu by the Detaining Authority at the time of service of the impugned orders of detention has deprived the detenu of an earliest opportunity of making representation to the Detaining Authority himself and, therefore, the right of the detenu under Article 22(5) of the Constitution of India has been violated and the continued detention is rendered unconstitutional, null and void and, therefore, detention orders deserve to be quashed and set aside.

3. Our attention was drawn by the learned Counsel for the petitioners to the case of (Kamlesh Kumar Ishwardas Patel v. Union of India and other)1, similar petitions dealt with by five Judges' Bench of the Apex Court reported in 1995(3) Bom.C.R. 69 : 1995 S.C.C. (Cri.) 643, and it is submitted that the judgment in Kamleshkumar's case squarely covers the issue.

4. The learned A.P.P. on the other hand, has placed before us the decision of Division Bench of this Court in the case of (Smt. Dagadibai Anand Jadhav v. S.C. Malhotra and others)2, 1998 Bom.C.R. (Cri.)702 : 1998 All.M.R. 362 : 1998 Criminal Law Journal 1376, in which the Division Bench of this Court was dealing with the case of detention under the M.P.D. Act, 1981 and was of the view that the Act never contemplated that the Detaining Authority has specific powers to revoke and it cannot be inferred that a representation can be made to it within the meaning of Article 22(5). Therefore, the representation to be made by the detenu, after the earliest opportunity was afforded to him can be only to the Government which has the power to approve or to revoke. Therefore, the question of any delay in deciding the representation does not arise (See Veermani v. State of T.N. )3, 1994(2) S.C.C. 337 and (Amin Mohd.Qureshi v. Commissioner of Police, Greater Bombay)4, 1995(2) Bom.C.R. 22(S.C.) : 1994(2) S.C.C. 355 : 1994 Cri.L.J. 2095.

5. Contrary view has been taken by the Division Bench of this Court at Aurangabad, in the case of (Subhash son of Bhaginath Patil @ Aute v. State of Maharashtra and another)5, 1998(1) Bombay Criminal Cases 267, wherein the Court was seized with a detention matter under the National Security Act, 1980 and having considered the cases of Kamleshkumar and Veermani (cited supra), held that---

"Even if we do not consider the question whether Detaining Authority could revoke detention order in first twelve days when the order is already approved by appropriate Government, detenu had a right, at least till it was approved by the State Government to make a representation to the Detaining Authority which he could not because of non-intimation of the order. This affects the v

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2000 Supreme(Bom) 137

Cases Referred (9)