JAYARAM P. Vs. STATE OF KARNATAKA AND ORS.

JUDGEMENT

(1.) BRIEF facts leading to this Habeas Corpus petition are as under:

(2.) AN analysis of the provisions of the Act indicates that Section 3 empowers the State Government to issue an order of detention under sub -section (1) of Section 3. The District Magistrate or Commissioner of Police on being authorized by the State Government could issue an order of detention under sub -section (2) of Section 3. When an officer exercises power and issues orders of detention under sub -section (2), then he is duty bound to report forthwith the fact of detention and the grounds on which the order of detention is made and/or other particulars to the State Government. On receipt of the report, the grounds and the particulars from the concerned officer, the State Government is required to consider as to whether the order of detention could be approved or not and such consideration shall be within 12 days. If the detention order is not approved within 12 days, then it automatically lapses. Section 8 of the Act specifically provides that a detenue 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 sub -section (2) of Section 3 of the Act. It is no doubt true that in latter part of sub -section (1) of Section 8 of the Act, it has been categorically mentioned that an earliest opportunity of making a representation against the order to the State Government should be afforded. But that does not make the State Government the detaining authority as soon as the factum of detention is communicated by the concerned delegate exercising power under sub -section (2) as provided under sub -section (3) thereof nor does it take away the power of entertaining a representation from a detenue so long as the order of detention has not been approved by the State Government. Despite the fact that Section 8(1) of the Act in term provides for a representation of being made to the State Government, but in a case where an officer other than the State Government issues an order of detention under sub -section (2) of Section 3, his powers as the detaining authority to deal with the representation under the provisions of Section 21 of the Mysore General Clauses Act, 1899 (Mysore Act) cannot be said to be taken away merely because Section 8(1) specifically provides for making a representation to the State Government. In this context, it is relevant to note the provisions of Section 21 of the Mysore General Clauses Act, 1899 (Mysore Act), which read thus:

(3.) SECTION 14 of the Act clearly discloses that without prejudice to the provisions of Section 21 of the Mysore General Clauses Act, 1899 (Mysore Act), 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 of the Act. Hence the Legislature has made it amply clear that the provisions of Section 14 would be read without prejudice to the provisions of Section 21 of the Mysore General Clauses Act, 1899. 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 words or to say anything in vain and a construction which attributes redundancy to the Legislature will not be accepted except for compelling reasons. The only logical and harmonious construction of the provisions would be that in a case where an order of detention is issued by an officer under sub -section (2) of Section 3 of the Act notwithstanding the fact that he is required to forthwith report the factum of detention together with the grounds and materials to the State Government and notwithstanding the fact that the Act itself specifically provides for making a representation to the State Government under Section 8(1), the said detaining authority continues to be the detaining authority until the order of detention issued by him is approved by the State Government i.e., until a period of 12 days from the date of issuance of detention order. Consequently, until the said detention order is approved by the State Government, the detaining authority can entertain a representation from a detenue and in exercise of its powers under the provisions of Section 21 of the Mysore General Clauses Act, 1899 (Mysore Act) could revoke or rescind the order, as is provided under Section 14 of the 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 Act. In view of the same, non -communication of the fact to the detenue 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 Act would constitute an infraction of a valuable right of the detenue under Article 22(5) of the Constitution of India.