BHUPENDRA JOSHI Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This habeas corpus petition under Art.226 of the Constitution, the petitioner is challenging the order of his detention passed on 20-1-1986 by the District Magistrate, Gwalior in exercise of his alleged powers under S.3(2) of the National Security Act, 1980, (for short, "the Act").

(2.) Asserting authority under S. 3(3) of the Act for exercise of powers under S. 3(2), the District Magistrate has passed the impugned order of detention on 20-1-1986, which is Annexure R-1. Let us, therefore, examine the provisions of sub-secs.(2) and (3) of S.3 of the Act. They are as follows : -

(3.) close scrutiny of the said provisions would show that only the Central Government or the State Government is invested with powers to make an order of detention under sub-sec.(2), which can be exercised after satisfaction of necessity for making such an order against a person "with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community." A district Magistrate or a Commissioner of Police may also exercise the powers under S. 3(2), if the State Government directs him to do so by an order in writing in terms of S. 3(3) of the Act. The powers can be exercised only during such period, not exceeding three months, as may be specified in the order. In other words, a District Magistrate or a Commissioner of Police has no inherent powers to make a detention order under S. 3(2) of the Act. His powers are dependent on making of an order in his favour by the State Government in accordance with S. 3(3), which provides that: - (i) 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 to make an order under sub-section (3); (ii) it may, by order in writing direct that such District Magistrate or Commissioner of Police may also exercise the powers conferred by sub-sec.(2), if satisfied, as provided in the said sub-section; (iii) the District Magistrate or the Commissioner of Police may exercise powers of making a detention order under sub-sec. (2) only during such period as may be specified in the order made by the State Government under sub-sec (3); (iv) Provided that the period to be specified in an order made by the State Government under sub-sec. (3) does not exceed 3 months in the first instance; (v) 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 3 months at any one time.