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TMI Blog2000 (8) TMI 1059X X X X Extracts X X X X X X X X Extracts X X X X ..... J. Leave granted. All these appeals have been filed by the State of Maharashtra assailing the correctness of the decision of the Full Bench of Bombay High Court, Bench at Nagpur, answering the question referred to, in favour of the detenu and against the State. The question that had been referred to the Full Bench for being answered is, whether in case of an order of detention by an officer under sub-section (2) of Section 3 of Maharashtra Prevention of Dangerous Activities of Slumlords, Boot-leggers, Drugs Offenders and Dangerous Persons Act, 1981, (hereinafter referred to as Maharashtra Act), 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. There is no dispute that in all these cases the order of detention had been passed not by the State Government under Section 3(1) of the Maharashtra Act but by the concerned officer empowered by the State Government under sub-section (2) of Section 3 of the Act. It is also not disputed that while communicating the detenu the grounds of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esh Kumars case (supra) will have no application inasmuch as the provisions of COFEPOSA are entirely different from the provisions of Maharashtra Act, with which we are concerned in the present appeals and the High Court, therefore, committed error in following Kamlesh Kumars case (supra) and answering the point of reference. According to Mr. Deshpande the powers under sub-section (2) of Section 3 being a delegated power, the delegatee could not exercise any function once he uses power provided under sub-section (2) and passes an order of detention. The learned counsel contends that in view of language of sub-section (3) of Section 3 the officer who issues an order of detention under sub-section (2) being required to forthwith report the fact of detention to the State Government together with the grounds on which the order has been made, the State Government becomes the detaining authority thereafter, and therefore, it is not necessary for him to communicate to the detenu that he could make a representation to the detaining authority nor does the detaining authority possesses such power. It is the contention of the learned counsel for the State that in view of specific provision in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. If the contention of Mr. Deshpande to the effect that the moment an order of det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, vary or rescind the order, as is provided under Section 14 of the Maharashtra Act. Such a construction of powers would give a full play to the provisions of Section 8 (1) as well as Section 14 and also Section 3 of the Maharashtra Act. This being the position, 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 a valuable right of the detenu under Article 22(5) of the Constitution and the ratio of the Constitution Bench decision of this Court in Kamlesh Kumars case (supra) would apply notwithstanding the fact that in Kamlesh Kumars case (supra) the Court was dealing with an order of detention issued under the provisions of COFEPOSA. The counsel appearing for the State strongly relied upon the decision of this Court in Veeramani vs. State of Tamil Nadu (1994) 2 Supreme Court Cases 337, wherein an order of detention had been issued under the provision of Tamil Nad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hough the Court did not entertain the contention that detaining authority under the provisions of National Security Act has a right to consider the representation on the ground that the order of detention had been approved by the State Government yet it had been observed that constitutionally speaking a duty is cast on the detaining authority to consider the representation which would obviously mean that if such representation is made prior to the approval of the order of detention by the State Government. This being the position, 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. We, therefore, see no infirmity with the impugned judgment of the Full Bench of the Bombay High Court to be interfered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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