Document Fragment View

Matching Fragments

7. Another restriction placed on the officer to whom such powers are delegated is provided in sub-section (3) of section 3 of the MPDA Act, which clearly records that if 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 other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than 12 days after the making thereof, unless, in the meantime, it has been approved by the State Government. Therefore, what falls from these restrictions placed on the officer so empowered or delegated with the authority of detaining a person under the MPDA Act, is that the order of detention passed by such authority, if not approved by the State Government within the period of 12 days, shall not remain in force. To sum up, a detention order passed by a District Magistrate or a Commissioner of Police, who has been vested with such powers under sub-section (2) of section 3 of the MPDA Act, will have a life span of twelve days and would be subject to the approval by the State Government, and unless the State Government has, within the said period, endorsed and ratified the same, the order of detention would lapse after 12 days from the passing thereof. There is no such restriction placed on the powers of the State Government, if the order of detention is passed by it under sub-section (1) of section 3. In case, if the State Government has passed the order by virtue of section 10 of the MPDA Act , it shall, within three weeks from the date of detention of the person under the order, place before the Advisory Board constituted by it under section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in the case where the order has been made by an officer also the report by such officer under sub-section (3) of section 3; and then the further detention of the detenu would be subject to the opinion of the Advisory Board as contemplated under section 12 of the said Act. In case the Advisory Board is of the opinion that there is no sufficient cause for the detention of the person concerned, the State Government shall revoke the detention order and cause the person to be released forthwith, as provided in sub-section (2) of section 12. Section 13 of the said Act provides that the maximum period for which any person may be detained, in pursuance of any detention order made under this Act, which has been confirmed under section 12, shall be twelve months from the date of detention.

Therefore, if we examine the scheme of the MPDA Act in reference to the aforesaid provision as regards the authority who can pass an order of detention and revoke it, in the first instance, it is the State Government who, by virtue of sub-section (1) of section 3 thereof can pass an order of detention and can also revoke or modify it by virtue of section 14 of the said Act. In case the order has been made by a District Magistrate or a Commissioner of Police, who has been vested with such powers under sub-section (2) of section 3, the said District Magistrate or Commissioner of Police, being a Detaining Authority and competent to pass an order of detention, may, if satisfied with respect to any person that with a view to prevent 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. In this case, as the order has been made by the Detaining Authority other than the State Government, it is also the authority which can revoke or modify the detention order as provided under section 14 of the MPDA Act, as sub-section (1) of section 14 clearly records that, 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, We, therefore, have no hesitation to hold that this provision clearly vests with the Detaining Authority powers to revoke or modify the detention order which has been made by an officer mentioned in sub-section (2) of section 3 of the MPDA Act. In addition to this, it also authorises the State Government to do so as soon as such detention order has been made by an officer mentioned in sub-section (2) of section 3 of the said Act.

12. Therefore, in our opinion, merely because sub-section (1) of section 8 of the MPDA Act provides : ".....,,..,...,.... and shall afford him the earliest opportunity of making a representation against the order to the State Government" , it does not exclude the Detaining Authority as contemplated under sub-section (2) of section 3 thereof, as section 3 clearly vests the power to make orders detaining certain persons with the State Government, which the State Government can very well delegate to a District Magistrate or a Commissioner of Police, if, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of such officer, and though such power delegated to the District Magistrate or the Commissioner of Police, if exercised, has a life span of 12 days from the making of the order of detention, unless in the meantime it has been approved by the State Government, at least for a period of 12 days, the said Detaining Authority as a delegate of the State Government has exercised powers vested with the State Government under sub-section (1) of section 3 of the MPDA Act. Therefore, we do not find any hesitation in arriving at a conclusion that mere use of the words "to the State Government" in subsection (1) of section 8 of the MPDA Act would not exclude the Detaining Authority from exercising its powers of revocation or modification of detention orders, which are expressly vested in it under sub-section (1) of section 14 of the said Act; more so, considering the observations of the Constitution Bench of the Apex Court in Kamlesh Kumar Ishwardas Pate's case (supra), wherein Their Lordships, while considering the safeguards contained in Clause (5) of Article 22 of the Constitution of India observed as follows:

17. In the said decision of Kamleshkumar Ishwardas Patel's case, the Apex Court, while considering the provisions of the National Security Act, 1980, observed in para-34 as under :---

"34. .............That appears to be the reason why section 8(1) envisages that the representation against the order of detention is to be made to the State Government. ...... ."

18. We have carved out this discussion of the Apex Court in reference to the National Security Act, 1980 in order to emphasise that the delegation of power to a District Magistrate or a Commissioner of Police under the MPDA Act, and the schemes of the National Security Act and the MPDA Act appear 10 be pan' materia. The emphasis is on the following observation: