Bombay High Court
Shri.Rajendra Daulat Desai vs The State Of Maharashtra on 21 October, 2010
Bench: A.M. Khanwilkar, P. D. Kode
1 wp.1969.10.sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1969 OF 2010
Shri.Rajendra Daulat Desai,
Aged 39 years,
R/o.33/40, B.D.D. Chawl, ...Petitioner
G.M.Bhosle Marg, Worli-18. (Brother of Detenue)
Versus
1.The State of Maharashtra,
(Through the Secretary,
Home Department (Special),
Mantralaya, Mumbai - 32.
2.Commissioner of Police for
Greater Mumbai.
3.Superintendent of Prison,
Nashik Road, Central Prison,
Nashik. ...Respondents
......
Mr.Sanjeev P.Kadam with Mr.Jagdish Chaudhary, Mr.P.H.Gaikwad and
Mr.A.P.Bagwe for the Petitioner.
Mr.J.P.Yagnik, A.P.P. for Respondents.
......
CORAM:- A.M.KHANWILKAR AND
P.D.KODE, JJ.
DATED:- OCTOBER 21, 2010.
JUDGMENT : (Per A.M.Khanwilkar, J.):
1. This Writ Petition under Article 226 of the Constitution of India
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challenges the order of detention dated 15th March 2010 issued by the
Commissioner of Police, Brihan Mumbai bearing No.D.O.No.
2/PCB/DP/Zone-III/2010 in exercise of powers under Section 3(2) of the
Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers,
Drug Offenders, Dangerous Persons and Video Pirates Act, 1981
(hereinafter referred to as `the Act of 1981'). As a consequence of the said
detention order, the Petitioner's brother came to be detained on 15th March,
2010 and he is in jail since then. The present Petition has been filed on 2nd
July, 2010. The detention order has been passed against the Petitioner's
brother Surendra @ Surya Daulat Desai essentially keeping in mind his past
tendencies and inclinations to continue with criminal activities prejudicial
to the maintenance of public order in future. The Detaining Authority has
referred to recent offence committed by the detenue on 26th October, 2009
which has been registered for offences under Sections 326 r/w 34 of the
Indian Penal Code r/w Section 37(a) of the Mumbai Police Act r/w Sections
3 and 25 of the Indian Arms Act at Worli Police Station vide C.R. No.
333/2009. In addition, reliance is placed on two in-camera statements of
witnesses A and B, who have spoken about the activities of the detenue
during the relevant period which had the potentiality of affecting public
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order. It is on this premiss the Sponsoring Authority submitted proposal for
issuance of preventive detention order which proposal was duly considered
along with other relevant materials placed before the Detaining Authority.
The Detaining Authority after recording his subjective satisfaction directed
issuance of detention order to prevent the detenue from reviving his
criminal activities as in the past. After recording that satisfaction, the
Detaining Authority issued order dated 15th March, 2010 which reads thus :
ig "Office of the
Commissioner of Police,
Brihan Mumbai.
15 MAR 2010
- ORDER-
D.O.NO. 2 /PCB/DP/Zone-III/2010
Whereas the Commissioner of Police, Brihan Mumbai, is
satisfied with respect to the person known as Shri Surendra @ Surya
Daulat Desai, aged 37 years, R/o. B.D.D. Chawl No.33, Room No.40,
G.M. Bhosle Marg, Worli, Mumbai-400 018, that with a view to prevent
him from acting in any manner prejudicial to the maintenance of public
order, it is necessary to make an order directing him to be detained under
the Maharashtra Prevention of Dangerous Activities of Slumlords,
Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act,
1981 (Mah. Act No. LV of 1981) (Amendment-1996)
(Amendment-2009).
Now, therefore, in exercise of the powers conferred by sub-
section (2) of Section 3 of the said Act, read with Government order,
Home Department (Special) No.DDS-1209/CR-334/SPL-3(B), dated
01/01/2010, the Commissioner of Police, Brihan Mumbai, hereby directs
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that the said Shri Surendra @ Surya Daulat Desai, aged 37 years, be
detained under the said Act.
(D. Sivanandhan)
Commissioner of Police,
Brihan Mumbai.
To,
The Sr. Inspector of Police, Worli Police Station for execution of
Detention Order and to submit compliance report.
Enclosures :-
1. 3 copies of Detention Order.
2. 3 copies of Committal Order.
3. Accompaniment sets."
2.
The report in respect of issuance of detention order was submitted to
the Government on 17th March, 2010. The Government in turn after
considering the proposal and the material forwarded to it, granted its
approval on 20th March 2010. Simultaneously, reference was made to
Advisory Board on 20th March 2010. The Advisory Board on 9th April
2010 gave its opinion which report was received in the Department on 12th
April 2010. On the basis of the said opinion, the Government issued
confirmation of the order of detention on 15th April 2010 which reads thus:
"ORDER
Home Department (Special),
Mantralaya, Mumbai 400032,
Dated the:- 15th April, 2010.
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Maharashtra No.DDS.1210/35/SPL-3(B):- Whereas, the
Prevention of Commissioner of Police, Brihan Mumbai, in exercise of powers
Dangerous conferred by sub-section (1) of section 3 of the Maharashtra
Activities of Prevention of Dangerous Activities of Slumlords, Bootleggers,
Slumlords, Drug Offenders, Dangerous Persons and Video Pirates Act,
Bootleggers, 1981 (hereinafter referred to as 'the said Act'), issued an order
Drug, on dated 15th March, 2010, directing that Shri. Surendra @
Offenders, Surya Daulat Desai, R/o. B.D.D. Chawl No.33, Room No.40,
Dangerous G.M. Bhosle Marg, Worli, Mumbai - 400 018 be detained under
Persons And the said Act;
Video Pirates
Act, 1981. And whereas, the Advisory Board appointed under the
said Act, has opined that there is sufficient cause for detention
of the said detenue.
And whereas, the State Government after considering
the opinion/report of the Advisory Board has decided that it is
necessary to confirm the detention order and continue the
detention of the said detenue.
Now, therefore, in exercise of the powers conferred by
sub-section (1) of section 12 of the said Act, the State of
Maharashtra hereby confirms the detention order issued by the
Commissioner of Police and directs that the detention of the
said Shri. Surendra @ Surya Daulat Desai, be continued for a
period of one year from the date of his detention.
By order and in the name of the Governor of
Maharashtra.
Under Secretary to the Government of Maharashtra
Home Department (Special).
3. As aforesaid, the present Petition came to be filed on 2nd July 2010.
The Respondents after issuance of notice, have filed reply affidavit of the
concerned authorities controverting the plea taken by the Petitioner. We
shall advert to the details thereof at the appropriate stage. During the course
of hearing, essentially five points have been raised before us. The grounds
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for assailing the order of detention and in particular, continued detention of
the detenue are that:
Firstly, the Marathi version of the grounds of detention served on the
detenue contained error in translation of the word "detained" as appearing
in the English version of grounds of detention. Instead, it is mentioned as
Tadipaar (externed). The second ground is that the Detaining Authority has
taken into account only one criminal incident being CR No.333/2009. That
was not sufficient to attract public order situation. Besides, two in-camera
statements were also of no consequence to satisfy the test of public order
situation. The third contention is that the order of acquittal passed by
criminal Courts in about seven criminal cases against the detenue were not
made part of the compilation which was placed before the Detaining
Authority. Thus, the order of detention passed by the Detaining Authority
suffers from non application of mind. The fourth ground is that the order of
detention does not specify the duration for which the detenue was to be
detained. For that reason, the detention order itself was vitiated. It is lastly
contended that the order of detention could have been issued by the
Detaining Authority for a period of six months and continuation thereof
could be done only after following the same procedure as provided in
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Section 3 of the Act. In absence thereof, the continued detention of the
detenue after lapse of six months is illegal. These are the five grounds
agitated before us.
4. Reverting to the first ground regarding incorrect translation of
grounds of detention (Marathi version), indeed, in Paragraph 4 of the
grounds of detention, the expression used while giving description of the
proceedings is Tadipaar which means externment. However, in the English
version of grounds of detention, it is stated that the detenue was detained in
connection with the stated proceedings. The grievance in the Petition in
connection with this is found in Ground 4(III) of the Writ Petition. The
same reads thus:
"III. That, the grounds of detention supplied to the detenu in English
mention in para 4 that the detenu was previously detained under M.P.D.A.
On three occasions. However the same ground in Marathi document
supplied with a view to the detenu to understand the same in his Language
mentions that there were tree orders of externment. Hence the impugned
order of detention suffers from non-application of mind by the detaining
authority. Hence the detention order is liable to be quashed and set aside.
Infact Externment (तडीपार) and detention (सथानबद् ध ) are two different
actions under the Law."
5. Considering the ground agitated by the Petitioner, the grievance is
one of non-application of mind by the Detaining Authority and not of
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affecting right of making representation of the detenue as such. There is
marked distinction between the two. If the ground were to be one of
deprivation of right to make representation, the question would be whether
the detenue has been misled because of the incorrect translation in the
grounds of Marathi version? Besides, it would have been necessary to
inquire into whether the Petitioner is conversant with English version.
However, that is not the grievance with which we are called upon to deal
with. The grievance is about non-application of mind of the Detaining
Authority. In the reply affidavit filed before this Court, however,
unfortunately, this aspect has not been specifically dealt with by the
Detaining Authority. For that reason, we called upon the learned A.P.P. to
produce the original record so as to find out whether the original proposal
which culminated in passing of order of detention was in Marathi or in
English. From the original record, it is noticed that the proposal initiated by
the Sponsoring Authority was in English. The draft of grounds of detention
considered by the Officers at different levels is also in English. The English
version of the draft grounds of detention was placed before the Detaining
Authority who proceeded to pass the detention order against the detenue. In
other words, the Detaining Authority did not consider the Marathi version
of grounds of detention which is furnished to the detenue. If so, the
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argument regarding non-application of mind by the Detaining Authority on
account of some clerical error occurring in the Marathi version does not
take the matter any further. Accordingly, this grievance of the Petitioner
will have to be rejected.
6. The Petitioner, however, placed reliance on the decision of Division
Bench of our High Court in the case of Smt.Bilkisbanu Abdul Gafar
Shaikh vs. Shri M.N.Singh & Ors. reported in 2001 All MR (Cri.) 822.
In that case, however, the detenue knew only Hindi. The order and grounds
of detention which were served on him in Hindi mentioned the expression
`public order', as `law and order'. This discrepancy is stated to have
affected the right of detenue to make effective representation under Article
22(5) of the Constitution. This Judgment, therefore, will be of no avail to
consider the question that has been raised by the Petitioner before us. In
that, we have been called upon to examine whether the opinion of the
Detaining Authority suffers from non-application of mind on account of
incorrect translation of the expression "detained" where, the same
expression is translated as "tadipaar" (externed) in Marathi Version.
7. That takes us to the second ground raised before us. According to the
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Petitioner, the sole basis for passing of detention order as noted by the
Detaining Authority seems to be the criminal case being CR No.333/2009
registered with Worli Police Station on 26th October 2009. It is submitted
that the FIR of the said case itself would reveal that it is offence against an
individual and the incident did not create situation of public order as such.
For that, our attention was invited to the contents of the FIR and statement
of the complainant Nilesh Prakash Bhosale recorded by the Police.
Whereas, what we have noticed from the grounds of detention is that
incident has been elaborately adverted to, including the material collected
during the investigation of the said case. Besides the said case, however, the
Detaining Authority has also relied upon the in-camera statements of two
witnesses recorded during the confidential inquiries. The said statements
would indicate that the detenue was indulging in activities in the locality
which created terror in the minds of the people in the locality. He was
engaged in extortion of money (hafta) from the local people, shopkeepers,
hawkers from B.D.D. chawl area and adjoining area on the point of
dangerous weapon. The witnesses were afraid of giving evidence against
the detenue or to speak against him in public. Considering this material and
the past activities of the detenue, the Detaining Authority was satisfied that
it was imperative to invoke preventive detention order against the detenue
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as he had spread reign of terror at large in the localities of Worli, B.D.D.
Chawl and adjoining area thereto. That was necessary to prevent the
activities of the detenue which were prejudicial to the maintenance of the
public order in the said localities in the Brihan Mumbai. That subjective
satisfaction has been recorded by the Detaining Authority, which can be
discerned also from the grounds of detention. It is not as if the preventive
detention action has been resorted to against the detenue on the basis of
solitary criminal case registered against him. Record indicates that in the
past, twelve other criminal cases were registered against him. Indeed, some
of the criminal cases ended in acquittal after trial. The record indicates that
since 1993 onwards, the detenue was involved in criminal cases of serious
nature, which is evident from the chart at Page 41 of the paper-book. The
Detaining Authority in the grounds of detention as well as in the reply
affidavit filed before us has made it amply clear that although the detenue
was found to be engaged in criminal cases in the past, those cases were not
the basis for proceeding to issue detention order against the detenue. But
the last criminal case registered with the Worli Police Station was
considered to be material along with the two in-camera statements recorded
during the confidential inquiry. The question is: whether the said material
can be said to be sufficient to take the view that it would not be a case of
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public order situation as such? It is well established position that
sufficiency or adequacy of material with regard to the subjective
satisfaction recorded by the Authority cannot be gone into. That is not the
scope of judicial review. Indeed, it is open to the Court to test whether the
cases and material referred to by itself discloses public order situation or
otherwise. This limited judicial scrutiny is permissible. What would
constitute public order is no more res integra. The Apex Court in the case
of Harpreet Kaur (Mrs) Harvinder Singh Bedi vs. State of
Maharashtra & Anr. reported in (1992) 2 SCC 177 while dealing with
the detention order issued under the provisions of the same Act of 1981 had
occasion to restate the same. In Paragraph 18, after referring to the earlier
reported decisions, the Court observed thus:
"18. From the law laid by this Court, as noticed above, it follows that it is
the degree and extent of the reach of the objectionable activity upon the
society which is vital for considering the question whether a man has
committed only a breach of 'law and order' or has acted in a manner likely to
cause disturbance to 'public order'. It is the potentiality of the act to disturb
the even tempo of life of the community which makes it prejudicial to the
maintenance of 'public order'. Whenever an order of detention is questioned,
the courts apply these tests to find out whether the objectionable activities
upon which the order of detention is grounded fall under the classification of
being prejudicial to 'public order' or belong to the category of being
prejudicial only to ' law and order'. An order of detention under the Act
would be valid if the activities of a detenu affect 'public order' but would not
be so where the same affect only the maintenance of 'law and order'. Facts of
each case have, therefore, to be carefully scrutinised to test the validity of an
order of detention." (emphasis supplied)
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Again in Paragraphs 24 and 25, the Court observed thus:
"24. Crime is a revolt against the whole society and an attack on the
civilization of the day. Order is the basic need of any organised civilized
society and any attempt to disturb that order affects the society and the
community. The distinction between breach of 'law and order' and
disturbance of 'public order' is one of degree and the extent of reach of the
activity in question upon the society. In their essential quality, the activities
which affects 'law and order' and those which disturb 'public order' may not
be different but in their potentiality and effect upon even tempo of the
society and public tranquillity there is a vast difference. In each case,
therefore, the courts have to see the length, magnitude and intensity of the
questionable activities of a person to find out whether his activities are
prejudicial to maintenance of 'public order' or only 'law and order'.
25. There is no gain saying that in the present state of law, a criminal can be
punished only when the prosecution is able to lead evidence and prove the
case against an accused person beyond a reasonable doubt. Where the
prosecution is unable to lead evidence to prove its case, the case fails,
though that failure does not imply that no crime had been committed. Where
the prosecution case fails, because witnesses are reluctant on account of fear
of retaliation to come forward to depose against an accused, obviously, the
crime would go unpunished and the criminal would be encouraged. In the
ultimate analysis, it is the society which suffers. Respect for law has to be
maintained in the interest of the society and discouragement of a criminal is
one of the ways to maintain it. The objectionable activities of a detenu have,
therefore, to be judged in the totality of the circumstances to find out
whether those activities have any prejudicial affect on the society as a whole
or not. If the society, and not only an individual, suffers on account of the
questionable activities of a person, then those activities are prejudicial to the
maintenance of 'public order' and are not merely prejudicial to the
maintenance of 'law and order'." (emphasis supplied)
8. In the present case, looking at the criminal case registered against the
detenue and the contents of the two in-camera statements, we are in
agreement with the argument of the Respondents that the subjective
satisfaction recorded by the Detaining Authority that the situation
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mentioned therein would clearly indicate disturbance of public order. The
contents of the in-camera statements do indicate that there is potentiality
and effect upon even tempo of the society and public tranquility. The Apex
Court in the above said decision has dealt with that aspect in Paragraph 25
reproduced hitherto. In later decision of the Apex Court in the case of
Hasan Khan Ibne Haider Khan vs. R.H.Mendnoca reported in AIR
2000 SC 1146 while dealing with the same enactment, the Court with
reference to the ground of detention in that case opined that the detenue
indulged in extortion of money from businessmen and also gave threats to
the people at the public places. That necessarily resulted in disturbing the
even tempo of life of the society. The Court went on to observe that such
activities cannot be said to be mere disturbance of law and order. Moreover,
this authority is also relevant in the context of the plea considered and
rejected by the Apex Court that since reference was made to the conviction
of the detenue under MRTP Act that could not have been ground for
detention of the detenue. The Court rejected that contention on the finding
that reference to the conviction of the detenue under MRTP Act was mainly
mentioned to indicate the past criminal history of the detenue. Even in the
present case, the detenue has been found to be indulging in criminal
activities since 1993. The fact that he has been acquitted in some of the
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criminal cases registered against him does not militate against the
subjective satisfaction of the Detaining Authority that it was imperative to
invoke preventive action against the detenue to curb his continuous
criminal activities in future.
9. The Counsel for the Petitioner, however, placed reliance on the
decision of the Division Bench of our High Court in the case of Mrs.Zabin
Salim Hamja Shaikh vs. Shhri.A.N.Roy & Ors. reported in 2006 All
MR (Cri.) 3324. In that case, the Detaining Authority issued order of
detention as there was one criminal case registered against the detenue and
in-camera statements of persons/witnesses also mentioned about the
involvement of the detenue in commission of activities having potentiality
of disturbing the public order. Notably, in that case, the Court went on to
first discard the in-camera statements and only after recording that finding
proceeded to hold that what was left for consideration of the Detaining
Authority was the solitary criminal case registered against the detenue
under Sections 326 and 114 of Indian Penal Code which by itself would not
be sufficient to form opinion that incident would have resulted in
disturbance of public order. In the present case, we are not called upon to
examine the grievance about the truthfulness of the incidents referred to by
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the witnesses, whose statements have been recorded in-camera. In that
case, the two in-camera statements were discarded as it was noticed that the
Divisional Assistant Commissioner had failed to verify the truthfulness of
the incidents as stated in both the in-camera statements. That is not the
grievance in the present Petition. In other words, the truthfulness of the
incidents stated by the two witnesses whose statements have been recorded
in-camera is not assailed at all, nor any grievance is made that the
Divisional Assistant Commissioner failed to verify the truthfulness of the
incidents referred to therein. The argument in the present case, however,
proceeds on the basis that the detention order is founded only on solitary
criminal case registered against the detenue being C.R.No.333/2009 with
Worli Police Station, which material was not sufficient to take the view that
it would have resulted in disturbing public order situation. That argument
will have to be stated to be rejected as the other material which has weighed
with the Detaining Authority will also have to be kept in mind namely the
two in-camera statements of the witnesses whose truthfulness and
genuineness is not in dispute before us.
10. In our opinion, therefore, the material which has been
adverted to by the Detaining Authority which formed the
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basis of arriving at the subjective satisfaction that the activities of the
detenue would disturb the public order or that to prevent him from acting in
any manner prejudicial to the maintenance of public order, is
unexceptionable.
11. Counsel for the Petitioner was at pains to persuade us that the
Detaining Authority not only took into account the criminal case registered
against the detenue with the Worli Police Station being CR No.333/2009
but also other cases and circumstances referred to in Paragraph 4 of the
order which is evident from the observation made in Paragraphs 5, 6 and 7
of the grounds of detention. In that, in Paragraph 5 of the grounds of
detention, it is noted that "in recent past, shows your tendencies and
inclinations to continue with your criminal activities prejudicial to the
public order in future also". This expression cannot be read in isolation. On
the other hand, the earlier part of the same Paragraph is relevant and cannot
be ignored. It mentions that "your involvement noticed in the following
incidents". After having said that, what has been referred to is the criminal
case registered against the detenue being CR No.333/2009 with Worli
Police Station and the two in-camera statements recorded during the
confidential inquiries. In other words, it is only these materials have been
18 wp.1969.10.sxw
reckoned by the Detaining Authority while considering the proposal of
issuance of preventive detention order against the detenue. Much emphasis
was placed on the opening part of Paragraph 6 which mentions "from the
above facts". Relying on this expression, it was argued that it necessarily
means that even the facts referred to in Paragraph 4 weighed with the
Detaining Authority. We do not agree with this submission. The grounds of
detention cannot be allowed to be read in this manner. The grounds of
detention will have to be read as a whole. The only meaning that can be
discerned is that the Detaining Authority was more than convinced that
issuance of preventive action against the detenue was imperative,
considering his involvement in criminal case No.333/2009 and more so, the
two in-camera statements of the witnesses recorded during the confidential
inquiry. The expression "from the above facts" therefore cannot be read out
of context. Counsel for the Petitioner also placed emphasis on the
expression "material placed before me" and "criminal activities as in the
past" appearing in Paragraph 7 of the grounds of detention. For the same
reasons which we have recorded hitherto, we do not agree with the
submission of the Petitioner that it would mean that besides the material
referred to in Paragraph 5, the Detaining Authority arrived at the subjective
satisfaction also on the basis of the facts alluded to in Paragraph 4 of the
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grounds of detention. In the circumstances, even this ground of challenge is
devoid of merits.
12. That takes us to the third ground. It is contended that although along
with the grounds of detention, a chart indicating the number of criminal
cases instituted against the detenue has been furnished, however, the order
of acquittal which was passed in favour of the detenue in the respective
cases did not form part of the compilation circulated to the Detaining
Authority. This ground can be traced to ground No.4(VIII) of the writ
petition. This ground has been countered by the Respondents by filing
affidavit of the Director General of Police dated 1st September 2010, in
which, it is stated as follows:
"13. With reference to para 4(VIII) of the petition, I have carefully gone
through the material placed before me and I am subjectively satisfied that the
detenue is acting in a manner prejudicial to the maintenance of public order
and therefore, the order of detention is valid. I have considered the fact that
the detenue have been granted bail in C.R.No.333/09 and availed of the bail
facility and become a free person. After released on bail the detenue may
revived his criminal activities as in the past. In view of the tendency and
inclinations reflected in the offences committed by the detenue as stated in
grounds of detention in para no. 5 and respective sub paragraphs of the
grounds, which are relied by me. I further satisfied that after released on bail
the detenue become a free person and in the event of detenue being at large,
being a criminal, detenue is likely to indulge in the activities prejudicial to
the maintenance of public order in future and that with a view to prevent
detenue from acting in such a prejudicial manner in future, it is necessary to
detain the detenue under the MPDA Act. After considering the material
placed before me the detention order was passed."
20 wp.1969.10.sxw
13. The question is: whether the subjective satisfaction of the Detaining
Authority is impaired due to non consideration of the order of acquittal in
favour of the detenue in most of the criminal cases instituted against him?
As is noticed earlier, the detention order is essentially founded on the
incident of criminal case registered against the detenue in Worli Police
Station being CR No.333/2009 and the two in-camera statements and no
other incident. Indeed, the detention order refers to the other facts in
Paragraph 4 and the material sent along with the grounds of detention
includes the chart of criminal cases registered against the detenue, but those
are not the cases which have been taken into account to form the subjective
satisfaction required for the purpose of Section 3 of the Act of 1981.
Insofar as the subjective satisfaction of the Detaining Authority is
concerned, it is founded on the incident pertaining to last criminal case
registered against the detenue and the two in-camera statements. The
preventive action against the detenue was necessitated on account of the
said material. As observed by the Apex Court in the case of Hasan Khan
Ibne Haider Khan (supra), those facts were only to show the past
criminal history of the detenue and nothing more. In the circumstances,
even this grievance of the Petitioner does not take the matter any further
21 wp.1969.10.sxw
and will have to be rejected.
14. The next ground urged before us is that the order of detention does
not mention the period of detention. As a result, the same is vitiated. We
have already reproduced the order of detention dated 15th March 2010.
Indeed, the same does not specifically refer to any period of detention.
However, the period of detention has been stated in the confirmation order
passed by the State Government dated 15th April 2010. As a matter of fact,
the argument canvassed before us is no more res integra. We may
straightaway refer to the decision of the Supreme Court decided by three
Judges in the case of T.Devaki vs. Government of Tamil Nadu & Ors.
reported in (1990) 2 SCC 456. The Apex Court was considering the
provisions of Tamil Nadu Prevention of Dangerous Activities of
Bootleggers, Drug Offenders, Forest Offenders, Immoral Traffic Offenders
and Slum Grabbers Act, 1982. The provisions of the said Act are analogous
to the provisions of the Maharashtra Act of 1981. As a matter of fact, the
provisions of the Maharashtra Act have been specifically referred to in this
decision. The Apex Court while overruling the exposition in the case of
Commissioner of Police vs. Gurbux Anandram Bhiryani reported in
1988 SCC (Cri.) 914 has taken the view that the provisions of Section 3
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nowhere requires the Detaining Authority to specify the period for which
the detenue is required to be detained. The entire scheme of Section 3 has
been analysed in this decision. In the circumstances, we do not think it
necessary to burden this Judgment with restating the same position. Suffice
it to observe that even though the detention order by itself does not specify
the period of detention, that does not mean that the same is vitiated. In the
present case, the appropriate Authority has specified the period of detention
in the order of confirmation as one year from the date of initial detention,
which is in conformity with the legal requirement. In Paragraph 33 of the
said decision, similar argument has been considered and rejected. The Court
opined that it is futile to contend that the order of detention in that case was
vitiated because it was for a period of more than three months. The learned
A.P.P. relied on the decision of Ujagar Singh & Anr. vs. State of Punjab
reported in AIR 1952 SC 350, which takes the same view. As a matter of
fact, this decision has been followed in the case of T.Devaki (supra).
15. That takes us to the last ground agitated across the Bar. It was
vehemently argued that since the order of detention was given effect to after
initial period of six months, for the subsequent period, same procedure as
was required for confirmation of the initial detention order ought to have
23 wp.1969.10.sxw
been followed under Section 3 of the Act. This argument deserves to be
stated to be rejected. No such inference can be drawn on the basis of
Section 3 as it obtains. The Scheme of Section 3 has been elaborately
considered in the case of T.Devaki (supra) to which we have already made
reference. Going by the scheme of Section 3 of the Act, it is on the
confirmation issued by the State Government, the validity of the detention
order would continue up to the period specified by the State Government.
In the confirmation order, the detention period has been specified as one
year from the date of arrest. On issuance of the confirmation order on 15 th
March 2010, the same detention order would enure against the detenue for a
period of one year from the date of his initial detention. There is no
requirement in Section 3 that on expiry of six months from the date of
arrest, the process specified in Section 3 ought to be fulfilled afresh. It is
not possible to take such a view considering the language of Section 3 of
the Act. It would be a different matter if the initial detention order itself was
for a limited period of six months issued by the Detaining Authority and
which was to be confirmed by the State Government only for that period.
And the preventive detention period was required to be extended on expiry
of initial six months. In such a case, perhaps, the requirement of Section 3
will have to be followed afresh. However, that question does not arise in the
24 wp.1969.10.sxw
fact situation of the present case. Hence, we express no final opinion on the
said aspect. Suffice it to observe that going by the language and the setting
in which Section 3 has been placed, there was no obligation either on the
Detaining Authority or the State Government to undertake the procedure
under Section 3 of the Act on expiry of initial six months period from the
date of the initial detention of the detenue. Accordingly, even this
submission will have to be rejected.
16.
For the reasons mentioned hitherto, the Petition is devoid of merits.
The same fails. Hence, it is rejected.
(P.D.KODE, J.) (A.M.KHANWILKAR, J.)
