2000 (8) TMI 1059 - SC - Customs

Whether in case of an order of detention by an officer non-communication to the detenu that he has a right of making a representation to the Detaining Authority constitutes an infraction of a valuable right of the detenu under Article 23(5) of the Constitution, and as such, vitiates the order of detention? Held that - Appeal dismissed. It goes without saying that even under the Maharashtra Act a detenu will have a right to make a representation to the detaining authority so long as the order of detention has not been approved by the State Government and consequently non-communication of the fact to the detenu that he has a right to make representation to the detaining authority would constitute an infraction of the valuable constitutional right guaranteed to the detenu under Article 22(5) of the Constitution and such failure would make the order of detention invalid.

Issues Involved:
1. Non-communication of the right to make a representation to the Detaining Authority.
2. Applicability of the Kamlesh Kumar judgment to the Maharashtra Act.
3. Powers of the Detaining Authority under Section 3(2) of the Maharashtra Act.
4. Interpretation of Section 14 of the Maharashtra Act and Section 21 of the Bombay General Clauses Act.
5. Relevance of the Veeramani judgment.

Detailed Analysis:

1. Non-communication of the right to make a representation to the Detaining Authority:
The core issue addressed is whether the failure to inform the detenu of their right to make a representation to the Detaining Authority, under sub-section (2) of Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Boot-leggers, Drugs Offenders and Dangerous Persons Act, 1981, constitutes a violation of Article 22(5) of the Constitution. The Full Bench of the Bombay High Court concluded that such non-communication indeed infringes on the detenu's valuable rights, thereby invalidating the detention order.

2. Applicability of the Kamlesh Kumar judgment to the Maharashtra Act:
The State of Maharashtra contended that the Kamlesh Kumar judgment, which dealt with the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), should not apply to the Maharashtra Act due to differences in the statutory provisions. However, the Full Bench relied on Kamlesh Kumar, asserting that the principles established in that case are applicable, thus supporting the detenu's right to make a representation to the Detaining Authority before the State Government's approval.

3. Powers of the Detaining Authority under Section 3(2) of the Maharashtra Act:
The judgment clarifies that an officer authorized under Section 3(2) retains the power to entertain representations and amend, revoke, or modify the detention order until the State Government approves it within 12 days. This interpretation ensures that the Detaining Authority remains empowered under Section 14(1) of the Maharashtra Act read with Section 21 of the Bombay General Clauses Act.

4. Interpretation of Section 14 of the Maharashtra Act and Section 21 of the Bombay General Clauses Act:
Section 14(1) of the Maharashtra Act, in conjunction with Section 21 of the Bombay General Clauses Act, allows the Detaining Authority to amend, vary, or rescind the detention order. The court emphasized that these provisions remain effective until the State Government's approval, ensuring that the legislative intent is fulfilled and no part of the statute is rendered redundant.

5. Relevance of the Veeramani judgment:
The State's reliance on the Veeramani judgment, which dealt with the Tamil Nadu Prevention of Dangerous Activities Act, was deemed inapplicable. The court noted that Veeramani addressed issues post-approval of the detention order by the State Government, whereas the current case pertains to the period before such approval. Additionally, the Veeramani judgment was based on principles overruled by the Kamlesh Kumar decision.

In conclusion, the Supreme Court upheld the Full Bench's decision, affirming that non-communication of the right to make a representation to the Detaining Authority constitutes a violation of Article 22(5), thereby invalidating the detention orders. The appeals by the State of Maharashtra were dismissed.

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