STATE OF MAHARASHTRA Vs. SANTOSH SHANKAR ACHARYA

JUDGEMENT

(1.) Leave granted.

(2.) 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, Bootleggers, 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 22(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 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 v. Union of India, (1995) 4 SCC 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 provided under sub-section (3) of Section 3 of the said Act. It was further held that until the order is approved by the State Government in exercise of its power under sub-section (3) of Section 3, the Detaining Authority who had issued the order of detention under sub-section (2) retains the power of entertaining a representation and annul, revoke or modify the same as provided under Section 14(1) of the Act read with Section 21 of the Bombay General Clauses Act. It has further been held that failure on the part of the Detaining Authority in a case where order of detention is issued under sub-section (2) of Section 3 to the detenu that he has a right to make a representation constitutes an infraction of the rights guaranteed under Article 22(5), and as such, the detention becomes invalid on the score. This conclusion is based upon the ratio of the Constitution Bench decision of this Court in Kamlesh Kumar's case (supra) even though in Kamlesh Kumar's case the Court was considering a case of detention under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (for short 'COFEPOSA'). Following the opinion on the question of law referred, the Division Bench of the High Court having set aside the order of detention the State Government is in appeal before us.

(3.) Mr. Deshpande, the learned counsel appearing for the State of Maharashtra and Mrs. Ramani, learned counsel appearing for the State Government in some of these appeals vehemently contended that the decision of Kamlesh Kumar's 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 Kumar's 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 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 possesses 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 Kumar's case (supra) will have no application at all.