9911796707
TMI Blog2000 (8) TMI 1059X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 detention it has not been indicated therein that he has a right to make a representation to the Detaining Authority, though in the said communication it was mentioned that the detenu could make a representation to the State Government as provided under Section 8(1) of the Maharashtra Act. The Division Bench of Bombay High Court on this aspect had taken inconsistent views and, therefore, the matter had been referred to the Full Bench. The Full Bench relying upon the Constitution Bench decision of this Court in Kamlesh Kumar Ishwardas Patel vs. Union of India (1995) 4 Supreme Court Cases-51, and on thorough analysis of the different provisions of the Maharashtra Act came to the conclusion that an order issued under sub-section (2) of Section 3 of the said Act cannot remain valid for more than 12 days unless the same is approved by the State Government as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 sub-section (1) of Section 8, the earliest opportunity of representation could be made available to the detenu to make a representation against the order of detention to the State Government by implication, the detaining authority does not possess any such power, and as such, the High Court committed error in coming to the conclusion that the detaining authority possess the power of rescinding an order of detention issued until the said order is approved by the State Government within a period of 12 days from the date of issuance of an order of detention. According to the learned counsel the provisions of Maharashtra Act stand on a different footing than the provisions of COFEPOSA and, therefore, the ratio in Kamlesh Kumars case (supra) will have no application at all. The learned counsel appearing for the respondents-detenues on the other hand contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid 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 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 detention issued by an order under sub-section (2) of Section 3 of the Act is communicated to the State Government under sub-section (3) of the said Section thereof the State Government becomes the detaining authority, and therefore, the power under Section 21 of the Bombay General Clauses Act cannot be exercised by the said detaining authority is correct, then it has to be found out as to under which contingency Section 14 of the Maharashtra Act would apply. To our query neither Mr. Deshpande nor Mrs. Ramani, learned counsel appearing for the State Government could indicate any situation when such power could be exercised. It is too well known a principle of construction of statutes that the legislature engrafted every part of a statute for a purpose and the legislative intention is that every part of the statute should be given effect. The legislature is deemed not to waste its wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 Nadu Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Forest- Offenders, Goondas, Immoral Traffic Offenders and Skum Grabbers Act, 1982 (hereinafter referred to as Tamil Nadu Act). According to the learned counsel for the State the provisions of the said Act are in pari- materia with the Maharashtra Act with which we are concerned in the present appeals and this Court in Veeramani (supra) had recorded a conclusion that the question of detaining authority revoking the order after such approval does not arise and the power preserved by virtue of the provisions of General Clauses Act is no more exercisable. In the aforesaid case the Court considered several earlier decisions of the Court under the provisions of COFEPOSA and was of the view that the observations made therein could not apply to cases arising under other Preventive Detention Act including the Tamil Nadu Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
