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Bombay High Court
Mr. Dunstan Savio Mcness @ Tony vs Shri R.H. Mendonca, The … on 28 August, 2000
Equivalent citations: 2001 BomCR Cri, (2001) 1 BOMLR 184, 2000 (4) MhLj 760
Author: R M Lodha.
Bench: G Patil, R Lodha


JUDGMENT

R. M. Lodha. J.

1. This group of 7 writ petitions though relates to the different detenus who have been detained under the provisions of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (for short “M.P.D.A. Act”), was heard together by consent of the appearing parties in view of the common question involved and all these writ petitions are accordingly disposed of by this common judgment.

2. The detenus in these 7 writ petitions came to be detained under separate detention orders passed under Section 3(1) of the M.P.D.A. Act by the Commissioner of Police. Brihan Mumbai, the authority empowered under sub-section (2) of section 3 of the M.P.D.A. Act. The detention orders were passed by the said authority to prevent them from acting in the manner prejudicial to the maintenance of Public Order. In all these cases, the detention orders were forwarded by the Detaining Authority to the State Government for approval immediately after these were passed by him and detenus were detained only after the State Government had approved such detention orders. Learned counsel appearing for the parties submitted that in the light of contentions advanced, the grounds and particulars which led to the subjective satisfaction of the Detaining Authority for the detention of these detenus are not required to be adverted to and hence we are not referring to such grounds and particulars.

3. Mr. Chitnis, learned senior counsel appearing for the Petitioners in some of the writ petitions strenuously urged that it was required of the authority who passed the order to inform the detenu in the grounds of detention that the detenu has right to make representation against the order of detention before him and having not done that, the detenu’s fundamental right under Article 22(5) of the Constitution of India has been infringed. The contention of the learned senior counsel is that the detenu has right to make representation to the Detaining Authority so long as it has not been approved by State Government against the order of detention which carries corresponding obligation on the authority making the order of detention to inform the person detained of his right to make representation against the order of detention to the Detaining Authority. Mr. Chitnis submitted that the order of detention made by the officer empowered under section 3(2) holds the field for the maximum period of twelve days unless approved by the State Government and, therefore, the detenu has right to make representation to such authority for getting the order of detention revoked and set aside and that casts obligation on such authority to inform the detenu of his right of making representation to him. According to the learned senior counsel, non appraisal of right of the detenu to make representation to the authority who passed the order, in the grounds of detention, vitiates the detention order. He also contended that since the Detaining Authority has power on fresh facts or changed circumstances to consider the representation made by the detenu even after the order of detention made by the Detaining Authority has been approved by the State Government, it necessarily follows that it is obligatory on the part of Detaining Authority to inform the detenu that he has right to make representation to the Detaining Authority irrespective of the detention order made by the Detaining Authority having been approved by the State Government. In support of his submissions, learned senior counsel relied upon Ramdas Bhikaji Chaudhari v. Sadanand and Ors.,; Kamleshkumar Ishwardas Patel v. Union of India,; Amir Shad Khan v. L. Hmingliana and Ors,; Amanulla Khan Kudeatalla Khan Pathan v. State of Gujarat and Ors.,; State of Punjab v. Baldev Singh. Full Bench decision of this Court In Sunil Sadashiv Ghate v. State of Maharashtra, and the judgment of the Apex Court, in State of Maharashtra and Ors. v. Santosh Shankar Acharya,. The other learned counsel for the petitioners adopted the arguments of Mr. Chitnis.

4. Per contra, Mrs. Tahilramani, learned public prosecutor vehemently opposed the contentions of the learned senior counsel appearing for some of the detenus and submitted that since the orders of detention made by the Detaining Authority were approved before the detenus were detained, it was the State Government alone who could consider the representation of the detenus and all the detenus were informed accordingly that they have right to make representation to the State Government. The learned public prosecutor submitted that the detenus before us were not deprived of their right to make effective representation at the earliest and their right under Article 22(5) of the Constitution of India has not at all been violated or infringed. The learned public prosecutor urged that since the detention orders were approved by the State Government prior to the service of the detention orders and other papers upon the detenus, they could not have made any representation to the Detaining Authority because the power of Detaining Authority to consider representation came to an end as soon as detention orders were approved by the State Government. She submitted that her contention finds support from paragraph 34 of Kamleshkumar Ishwardas Patel’s case (supra) and the judgment of the Apex Court in Santosh Shankar Acharya’s case (supra). She also relied upon the judgment of the Apex Court in Kamarunnisa u. Union of India and Anr..; Smt. Pushpa v. Union of India and Ors., and Khudiram Das v. State of West Bengal and Ors.,. The learned public prosecutor also referred to some of the paragraphs of the Full Bench Judgment of this Court in Sunil Sadashiv Ghate (supra) in support of her submission that once the order of detention has been approved by the State Government, the authority who made the detention order ceases to be the Detaining Authority and is substituted by the State Government and, therefore, non-communication to the detenu to make representation to the Detaining Authority in that fact situation is not infraction under Article 22(5) of the Constitution of India.

5. The question that falls for determination by us is : whether non-communication to the detenu that he has right to make representation to the officer who passed the detention order empowered under section 3(2) even in the case where the detention order is approved by the State Government before service of the detention order upon the detenu vitiates the order of detention being violative of Article 22(5) of the Constitution of India.

6. The provisions of M.P.D.A. Act came up for consideration before the Apex Court in Santosh Shankar Acharya’s case (supra) and we do not feel it necessary to add to what has already been stated by the Apex Court in respect of Sections 3, 8(1) and 14(1) of the M.P.D.A. Act and section 21 of the Bombay General Clauses Act, 1904. The Apex Court while analysing the said provisions observed thus :

“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. Section 3 of the Maharashtra Act is quoted herein below in extenso for better appreciation of the analysis we have thus made : –

“Section 3. (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 three 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 three 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 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.”

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 subsection (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. Section 8(1) of Maharashtra Act is quoted herein below in extenso : –

“Section 8(1) : When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to 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. Section 14(1) of the Maharashtra Act is quoted herein below in extenso for better appreciation of the point in issue together with Section 21 of the Bombay General Clauses Act, 1904 : –

“Section 14(1) : Without prejudice to the provisions of Section 21 of the Bombay General Clauses Act, 1904, 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.”

“Section 21 : Where by any Bombay Act (or Maharashtra Act), a power to issue notifications, orders, rules or by-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or by-laws, so issued.”

7. In Santosh Acharya’s case the Apex Court thus ruled that 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 valuable right of the detenu under Article 22(5) of the Constitution of India.

What necessary follows from the aforesaid dicta is that in a case where the detection order has been made by an officer other than the State Government empowered under sub-section (2) of Section 3 of the M.P.D.A. Act and the said order has been served upon the detenu after the order of detention has been approved by the State Government, non-communication of the fact to the detenu that he could make a representation to the authority who issued the order cannot be said to be violative of under Article 22(5) of the Constitution of India. This legal position is further fortified when the Apex Court in Santosh Shankar Acharya’s case observed. “….. it may be difficult to contend that even after the approval of the
detention order by the State Government the Detaining Authority would still be competent to entertain and dispose of a representation in exercise of the powers under Section 21 of the Bombay General Clauses Act …..” It is so because upon approval of the order of detention by the

State Government, the State Government substitutes the Detaining Authority and the Detaining Authority ceases to have any power to consider the representation of the detenu against the detention order. In a case where the detenu has been served with the detention order after the detention order issued by the officer empowered under section 3(2) of the M.P.D.A. Act has been approved by the State Government, what is required to be informed to the detenu is that he can make a representation to the State Government because at that point of time the State Government becomes the Detaining Authority. In Kamleshkumar’s case (supra), the Apex Court in paragraph 34 referred to the provisions of National Security Act which are pari materia with the provisions of M.P.D.A. Act and observed that the effect of the approval of detention order by the State Government is that from the date of such approval the detention is authorised by the order of the State Government approving the order of detention and the State Government is the Detaining Authority from the date of the order of approval. The Full Bench of this Court in Sunil Sadashiv Ghate (supra) also held in paragraph 8 of its judgment that once a person has been detained under Section 3(1) by any officer mentioned in sub-section (2) thereof, and if the same is approved by the State Government within a period of 12 days, then it becomes an order of detention passed by the State Government, and for the said purpose, on approval of the detention order passed by its officer under sub-section (2) of Section 3, the State Government substitutes the Detaining Authority. We have therefore, no hesitation in holding that where the detention order has been made under Section 3(1) of the M.P.D.A. Act by an officer mentioned in sub-section (2) and the same is approved by the State Government within 12 days and such detention order is served upon the detenu, thereafter, the State Government substitutes the Detaining Authority and the officer who issued the order of detention ceases to have power to entertain any representation by the detenu against the detention order. Non-communication to the detenu that he has right to make representation to officer who issued the order in such circumstances does not infringe Article 22(5) of the Constitution of India.

8. Article 22(5) reads thus : –

“22.(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.”

Article 22(5) imposes a dual obligation on the authority making the order of preventive detention; (i) to communicate to the person detained as soon as may be the grounds on which the order of detention has been made; and (ii) to afford the person detained the earliest opportunity of making a representation against the order of detention. Article 22(5), thus, provides that the person detained has a right to make a representation against the order of detention and as has been observed by the Apex Court in the State of Bombay v. Atma Ram Shridhar Vaidya, that these two obligations are imposed on the authority making the order of detention with a view to ensure that right of the person detained to make a representation remains

the real right and he is able to take steps for redress of a wrong which he thinks has been committed. In Atma Ram’s case, the Apex Court further observed that the object and purpose of the representation to be made by the person detained is to enable him to obtain relief at the earliest opportunity. Obviously, the said representation has to be made to the authority which can grant such relief i.e. the authority which can revoke the order of detention and set him at liberty. In all the cases before us, the detention orders have been served upon the concerned detenus after they were approved by the State Government within 12 days of making the orders of detention by the officer empowered under sub-section (2) of Section 3 of the M.P.D.A. and in all such detention orders, the concerned detenus have been informed that they have right to make representations to the State Government. In this fact situation, therefore, it cannot be said that any of the detenus has been deprived of making a representation to the authority who can grant relief to him. The right of the detenu to make a representation at the earliest and to be able to take steps for redress of a wrong which he thinks has been committed has been protected by informing him in the detention order that he can make representation to the State Government since it was the State Government alone who could grant such relief because the detention order was served upon the detenus after its approval by the State Government.

9. Mr. Chitnis, learned senior counsel vehemently contended that since the Detaining Authority has power to revoke the detention order even after the detention order has been approved by the State Government, on fresh facts and/or in changed circumstances, it was obligatory on the part of the Detaining Authority to inform the detenu that he has a right to make representation to the Detaining Authority. In this connection, he relied upon the following observations in Amanulla Khan’s case (supra) may by the Apex Court :

“Though if subsequent circumstances change, the Detaining Authority may have the power of revocation in view of the provisions of the General Clauses Act.”

The reference to aforesaid observations out of context by Mr. Chitnis does not support his submission in any manner. What the Supreme Court has observed in Amanulla’s case is that the Detaining Authority has the power of revocation within 12 days of making of the order of detention which it can exercise before the State Government ratifies the same, but once the State Government approves the order of detention then on the same set of circumstances the Detaining Authority cannot revoke an order of detention. Amanulla Khan’s case rather supports the view that once the detention order made by an officer empowered under Section 3(2) of the M.P.D.A. Act has been approved by the State Government, the Detaining Authority cannot revoke an order of detention on the same set of facts.

10. Mr. Chitnis, learned senior counsel, also contended that it is initial obligation of the Detaining Authority empowered under section 3(2) to incorporate in the detention order as one of the grounds informing the detenu that he has right to make representation to him. The submission of Mr. Chitnis is that the officer empowered to make detention order under section 3(2) cannot anticipate whether the detention order shall be approved by the State Government or not and, therefore, it is mandatory

requirement of such officer while formulating the detention order to inform the detenu that he has right to make representation to him. The contention of the learned senior counsel is only noted to be rejected. The scheme of the provisions of M.P.D.A. Act clearly suggests that when an officer authorised by the State Government exercises power and issues order of detention then it is his bounden duty to forthwith report 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 such officer, the State Government is required to approve the order of detention within 12 days of its issuance. If it is approved by the State Government within 12 days therefrom, the order of detention continues. In other words, the approval of the State Government within time gives further life to the order of detention passed by the officer empowered under Section 3(2) which would otherwise die its natural death on expiry of 12 days from its making. If the State Government does not approve the order of detention issued by the officer empowered under Section 3(2), such detention order automatically terminates but in a case where the detention order is approved by the State Government, it is the State Government which substitutes the Detaining Authority and is competent to consider the representation. The obligation of the officer empowered by the State Government under Section 3(2) to inform the detenu that he can make representation to him has to be seen from the point of view whether he can revoke the detention order made by him when it was served upon the detenu after it was approved by the State Government. If the detention order made by the Detaining Authority under Section 3(2) is served upon the detenu within 12 days of its making before approval of the State Government, obviously, it is required of such Detaining Authority to inform the detenu that he has right to make representation to the Detaining Authority and that is what has been held by the Apex Court in Santosh Acharya’s case (supra). However, in a case where the Detaining Authority empowered under Section 3(2) makes an order of detention under Section 3(1); immediately forwards the said detention order to the State Government along with the grounds and particulars for approval which the State Government does approve within 12 days of making of the detention order and the detention order is served upon the detenu after the approval by the State Government, it cannot be said that in that fact situation it is obligatory on the part of the officer empowered under Section 3(2) to inform the detenu that he has right to make representation to the Detaining Authority while formulating the detention order. We may observe that challenge to the detention order based on infraction of right under Article 22(5) cannot be seen in an abstract manner. Once the detention order passed by the authority empowered under Section 3(2) has been approved by the State Government within 12 days and the detenu is served with the detention order thereafter, obviously, the Petitioner can only make representation to the State Government or to the Advisory Board as the case may be but not to the authority who made the order and, therefore, failure on the part of the authority who passed the order to inform the detenu that he can make representation to him cannot be of any consequence when the detenu has already been informed in the detention order that he can make representation to the State Government. As already noted above, after the

detention order made by the Detaining Authority empowered under Section 3(2) has been approved by the State Government and the detention order has been served upon the detenu after approval by the State Government within 12 days of making of the detention order, it is the State Government who can entertain the representation of the detenu and revoke such detention order. Reliance placed by Mr. Chitnis, learned senior counsel on the observations made by the Apex Court in Baldev Singh’s case (supra) in paragraph 27 of the report does not support his contention that it was required of the authority empowered under section 3(2) who issued the order to inform the detenu that he has right to make a representation to him even though it has been approved by the State Government before it was served upon the detenu.

11. Though Mr. Chitnis, learned Senior, Counsel, heavily relied upon paragraph 14 of Kamleshkumar’s case, we find that the said observations do not support the contentions advanced by him. In paragraph 14 of Kamleshkumar’s case (supra) the Apex Court held thus : –

“14. Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the Detaining Authority, i.e., the authority that has made the order of detention or the order for continuance of such detention, which is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation.”

12. The aforesaid statement of law is that it is obligatory on the part of the authority making the order of detention to inform the detenu that he has right to make representation against the order of detention to the authority who is required to consider such a representation. Such authority in a case where the order of detention has been made by the empowered officer under section 3(2) and served upon detenu after approved by the State Government is the State Government. In present matters each of the detenus has been informed that he has right to make representation to the State Government who is required to consider such representation. We are, therefore, of the considered view that in the present group of writ petitions, none of the detention orders suffers from vice of constitutional right guaranteed under Article 22(5) of the Constitution of India, in as much as, each of the detention order which is challenged before us, was approved by the State Government within 12 days of making of the order of detention by the authority empowered under Section 3(2) of the M.P.D.A. Act and the detention order was served upon the detenu after the order of detention was approved by the State Government and in each of the detention order the detenu has been informed that he has right to make representation to the State Government. Each of the detenu, therefore, has been informed of his right to make a representation at the earliest opportunity to the concerned authority i.e. State Government who was able to revoke the detention order.

13. Before we close, we may refer to the judgment of the Apex Court in Meena Jayendra Thakur v. Union of India and Ors., upon which also reliance was placed by the learned senior counsel. Learned senior counsel in particular invited our attention to paragraph 8 of the said report which reads thus : –

“8. There cannot be any dispute that the right to make a representation of a detenu is the most valuable right conferred upon him under Article 22 of the Constitution and if there has been any infraction of such right then certainly the detenu is entitled to be released. The question, therefore, arises as to whether when a declaration is made under Section 9(1) of the Act which in turn extends the period of detention without being confirmed whether the officer issuing the declaration under Section 9(1) is also required to inform the detenu that he has a right to make a representation to him. Under the constitutional scheme engrafted in Article 22, no law providing for preventing detention can authorise the detention of a person for a longer period than three months unless the Advisory Board reports before the expiration of the said period of three months that there is, in its opinion, sufficient cause for such detention. When an authority issues a declaration under Section of the Act, the said authority has the necessary powers to revoke the declaration on a representation being made by the detenu against such declaration. Consequently, if the detenu is not intimated of his right to make a representation to the authority issuing the declaration under Section 9(1) then certainly his valuable constitutional right gets infringed and the two decisions of the Full Bench relied upon by Mr. Kotwal fully support this contention. Mr. N. N. Goswami, learned Senior Counsel appearing for the Union of India fairly concedes this position.”

The Apex Court has observed in paragraph 8 itself that the authority issuing declaration under section 9(1) of the COFEPOSA has the necessary powers to revoke the declaration on a representation being made by the detenu against such declaration and, therefore, it was required of an officer issuing the declaration under Section 9(1) of the COFEPOSA Act to inform the detenu that he has right to make representation to him and having not done that, the Apex Court observed that if the detenu is not intimated of his right to make a representation to the authority issuing declaration under Section 9(1) then certainly his valuable constitutional right gets infringed. In the present group cases, since the detention order passed by authority empowered under Section 3(2) was served after approval by the State Government, the authority empowered under Section 3(2) who passed the order ceased to have power to revoke the order of detention and, therefore. Meena Thakur’s case (supra) also does not support the petitioners. No other point was pressed before us.

14. Consequently, we do not find any merit in these writ petitions and all writ petitions are dismissed. Rule is discharged in all these writ petitions.


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