STATE OF MAHARASHTRA & ORS.versusBALU S/O WAMAN PATOLE

1154                      [2019]REPORTS
                SUPREME COURT    13 S.C.R. 1154             [2019] 13 S.C.R.


 A                    STATE OF MAHARASHTRA & ORS.
                                         v.
                          BALU S/O WAMAN PATOLE
                        (Criminal Appeal No.1681 of 2019)
 B                            NOVEMBER 13, 2019
                [INDIRA BANERJEE AND M. R. SHAH, JJ.]
              Maharashtra Prevention of Dangerous Activities of Slumlords,
       Bootleggers, Drug-Offenders, Dangerous Persons, Video Pirates,
       Sand Smugglers and Persons Engaged in Black-Marketing of
 C     Essential Commodities Act, 1981 – ss.3(1), (2) & 13 – Detention
       order of the Respondent—detenu passed by the detaining authority–
       Approved by the State Government – Challenged by the respondent
       – Set aside by the High Court – On appeal held: Impugned judgment
       passed by the High Court quashing the detention order on merits,
 D     confirmed – However, one of the grounds on which the detention
       order is set aside, namely, that in the detention order the detaining
       authority prescribed the period of detention for 12 months and the
       same is in breach of s.3, is set aside – High Court wrongly relied
       upon and mis-interpreted s.3(2) with respect to the period of
       detention – Sub-section (2) of s.3 relates to the period for which the
 E     order of delegation issued by the State Government is to remain in
       force – It has no relevance to the period of detention – Legislature
       has entrusted the power of detention to the State Government –
       However, those powers can be delegated to the Jurisdictional District
       Magistrate or the Commissioner of Police, as provided in sub-sec.(2)
       of s.3 – As per s.13 of the Act, a person can be detained under the
 F
       Act for such period not exceeding the maximum period of 12 months
       from the date of detention – Order of detention passed by the
       authorities mentioned in sub-sec.(2) of s.3 is required to be confirmed
       by the State Government – As per s.13, once the order of detention
       is confirmed by the State Government, the maximum period for which
 G     the detenu shall be detained cannot exceed 12 months from the
       date of detention – Act nowhere requires the detaining authority to
       specify the period for which the detenu is required to be detained –
       Further, the directions issued by the High Court contained in Clauses
       (IV)-(VI) of the operative portion of the impugned judgment are
       also quashed – Constitution of India – Art.136.
 H
                                        1154
             STATE OF MAHARASHTRA & ORS. v.                              1155
                 BALU S/O WAMAN PATOLE

      Disposing of the appeal, the Court                                 A
       HELD: 1.1 One of the grounds on which the detention order
is set aside, namely, that in the detention order the detaining
authority prescribed the period of detention for 12 months and
the same is in breach of Section 3 of the Maharashtra Prevention
of Dangerous Activities of Slumlords, Bootleggers, Drug-                 B
Offenders, Dangerous Persons, Video Pirates, Sand Smugglers
and Persons Engaged in Black-Marketing of Essential
Commodities Act, 1981 is concerned, considering the provisions
of Section 3 read with Section 13 of the Act, the same cannot be
sustained. On fair reading of Section 3 of the Act, more particularly,
sub-section (2) of Section 3 of the Act, upon which much reliance        C
has been placed by the High Court, sub-section (2) of Section 3
relates to the period for which the order of delegation issued by
the State Government is to remain in force. It has no relevance
to the period of detention. The Legislature has entrusted the
power of detention to the State Government. However, those               D
powers can be delegated to the Jurisdictional District Magistrate
or the Commissioner of Police, as provided in sub-section (2) of
Section 3 of the Act. As per Section 13 of the Act, a person can be
detained under the Act for such period not exceeding the
maximum period of 12 months from the date of detention. The
order of detention passed by the authorities mentioned in sub-           E
section (2) of Section 3 of the Act is required to be confirmed by
the State Government. As per Section 13 of the Act, once the
order of detention is confirmed by the State Government, the
maximum period for which the detenu shall be detained cannot
exceed 12 months from the date of detention. The Act nowhere             F
requires the detaining authority to specify the period for which
the detenu is required to be detained. [Para 5.1][1158-D-E; 1159-
E-G]
      1.2 The High Court wrongly relied upon and mis-interpreted
Section 3 (2) of the Act with respect to the period of detention.        G
Sub-section (2) of Section 3 of the Act relates to the period for
which the order of delegation issued by the State Government is
to remain in force and does not relate to the period of detention.
[Para 5.4][1161-A-B]

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1156            SUPREME COURT REPORTS                      [2019] 13 S.C.R.


 A           1.3 Though the impugned Judgment and Order passed by
       the High Court quashing and setting aside the detention order
       on merits is confirmed, the finding in the impugned Judgment
       and Order passed by the High Court is set aside by which the
       High Court has set aside the order of detention on the ground
       that as in the detention order the period of 12 months is
 B
       mentioned, the same is contrary to sub-section (2) of Section 3 of
       the Act, more particularly the observations made by the High
       Court in paragraph 33 of the impugned Judgment and Order.
       The directions issued by High Court contained in Clauses (VI),
       (V) and (VI) of the operative portion of the impugned Judgment
 C     and Order, are also quashed and set aside. Disposed of in the
       aforesaid terms. [Para 6][1161-F-G]
             T. Devaki v. Government of Tamil Nadu (1990) 2 SCC
             456 : [1990] 1 SCR 836 – relied on.
                              Case Law Reference
 D
       [1990] 1 SCR 836                relied on               Para 4
             CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
       1681 of 2019.
             From the Judgment and Order dated 26.03.2019 of the High Court
 E     of Judicature at Bombay, Bench at Aurangabad in Criminal Writ Petition
       No. 155 of 2019.
             Anoop Kandari, Nishant Ramakantrao Katneshwarkar, Advs. for
       the Appellants.
             The Judgment of the Court was delivered by
 F
             M. R. SHAH, J.
             1. Delay condoned. Leave granted.
             2. Feeling aggrieved and dissatisfied with the impugned Judgment
       and Order dated 26.03.2019 passed by the High Court of Judicature at
 G     Bombay, Bench at Aurangabad, in Criminal Writ Petition No. 155 of
       2019, by which the High Court has quashed and set aside the order
       dated 15.10.2018 passed by the Commissioner of Police, Aurangabad
       under Sections 3(1) and (2) of the Maharashtra Prevention of Dangerous
       Activities of Slumlords, Bootleggers, Drug-Offenders, Dangerous
 H     Persons, Video Pirates, Sand Smugglers and Persons Engaged in Black-
            STATE OF MAHARASHTRA & ORS. v.                                     1157
          BALU S/O WAMAN PATOLE [M. R. SHAH, J.]

Marketing of Essential Commodities Act, 1981 (hereinafter referred to          A
as the Act) and also the order of confirmation of the order of detention
made by the State Government, the detaining authority has preferred
the present appeal.
       3. That in exercise of powers under Sections 3(1) and (2) of the
Act, the Commissioner of Police, Aurangabad passed an order to detain          B
the respondent herein treating and considering the respondent as a
‘dangerous person’. The respondent herein was served with the grounds
of detention. The order of detention was approved by the State
Government. The matter was referred to the Advisory Board. The
Advisory Board gave the opinion that there was sufficient cause for
preventive detention of the respondent-detenu. That, thereafter the            C
detention order was approved by the State Government. The detention
order passed by the detaining authority, approved by the State
Government, came to be challenged by the respondent herein before the
High Court. That, by the impugned Judgment and Order, the High Court
has set aside the detention order on merits as well as on the ground that      D
the order of detention prescribing the detention for 12 months is in breach
of Section 3 of the Act. Feeling aggrieved with the impugned Judgment
and Order passed by the High Court, the detaining authority has preferred
this appeal.
       4. Though served, nobody has remained present on behalf of the          E
respondent-detenu. Shri Nishant Ramakantrao Katneshwarkar, learned
counsel appearing on behalf of the State-detaining authority has
vehemently submitted that so far as one of the grounds on which the
High Court has set aside the detention order, namely, that the detention
order prescribing the detention for 12 months is contrary to Section 3 of
the Act, is not sustainable at law. It is submitted that the said finding is   F
contrary to the law laid down by this Court in the case of T. Devaki v.
Government of Tamil Nadu (1990) 2 SCC 456.
       4.1 It is vehemently submitted by Shri Katneshwarkar, learned
counsel appearing on behalf of the State that while holding that the
detention order is in breach of Section 3 of the Act, the High Court has       G
not properly appreciated and/or considered the scope and ambit of Section
3 and Section 13 of the Act. It is submitted that the High Court has not
considered Section 3 of the Act in its proper perspective. It is submitted
that Section 3(2) of the Act refers to delegation of powers to the District
Magistrate or the Commissioner of Police to detain a person under Section      H
1158             SUPREME COURT REPORTS                           [2019] 13 S.C.R.


 A     3(1) of the Act and not with respect to the period of detention to be
       mentioned in the detention order. It is submitted that, as per Section 13
       of the Act, a person can be detained for such period not exceeding the
       maximum period of 12 months from the date of detention. It is submitted
       that neither Section 3 nor Section 13 of the Act mandates the detaining
       authority to specify the period for which the detenu is required to be
 B
       detained. In support of his above submissions, Mr. Katneshwarkar, learned
       counsel appearing on behalf of the State has heavily relied upon para 10
       of the decision of this Court in T. Devaki (supra).
              5. We have heard learned counsel appearing on behalf of the
       State at length.
 C
              5.1 Now, so far as the impugned Judgment and Order passed by
       the High Court quashing and setting aside the order of detention is
       concerned, having gone through the impugned Judgment and Order
       passed by the High Court, we are of the view that the same is not
       required to be interfered with by this Court in exercise of powers under
 D     Article 136 of the Constitution of India. However, at the same time, one
       of the grounds on which the detention order is set aside, namely, that in
       the detention order the detaining authority prescribed the period of detention
       for 12 months and the same is in breach of Section 3 of the Act is
       concerned, considering the provisions of Section 3 read with Section 13
 E     of the Act, the same cannot be sustained. Sections 3 and 13 of the Act
       read as under:
                     “3. Power to make orders detaining certain persons.—
              (1) The State Government may, if satisfied with respect to any
              person that with a view to preventing him from acting in any manner
 F            prejudicial to the maintenance of public order, it is necessary so to
              do, make an order directing that such person be detained.
                     (2) If, 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
 G            Government is satisfied that it is necessary so to do, it may, by
              order in writing, direct, that during such period as may be specified
              in the order, such District Magistrate or Commissioner of Police
              may also if satisfied as provided in sub-section (1), exercise the
              powers conferred by the said sub-section:

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            STATE OF MAHARASHTRA & ORS. v.                                   1159
          BALU S/O WAMAN PATOLE [M. R. SHAH, J.]

             Provided that the period specified in the order made by the     A
      State Government under this sub-section shall not, in the first
      instance, exceed six 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 six months at any one time.
                                                                             B
             (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 other 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,      C
      in the meantime, it has been approved by the State Government.”
             “13. Maximum period of detention.— The maximum
      period for which any person may be detained, in pursuance of
      any detention order made under this Act, which has been confirmed
      under section 13, shall be twelve months from the date of              D
      detention.”
        On fair reading of Section 3 of the Act, more particularly, sub-
section (2) of Section 3 of the Act, upon which much reliance has been
placed by the High Court, sub-section (2) of Section 3 relates to the
period for which the order of delegation issued by the State Government      E
is to remain in force. It has no relevance to the period of detention. The
Legislature has entrusted the power of detention to the State Government.
However, those powers can be delegated to the Jurisdictional District
Magistrate or the Commissioner of Police, as provided in sub-section
(2) of Section 3 of the Act. As per Section 13 of the Act, a person can      F
be detained under the Act for such period not exceeding the maximum
period of 12 months from the date of detention. The order of detention
passed by the authorities mentioned in sub-section (2) of Section 3 of
the Act is required to be confirmed by the State Government. As per
Section 13 of the Act, once the order of detention is confirmed by the
State Government, the maximum period for which the detenu shall be           G
detained cannot exceed 12 months from the date of detention. The Act
nowhere requires the detaining authority to specify the period for which
the detenu is required to be detained.

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1160            SUPREME COURT REPORTS                          [2019] 13 S.C.R.


 A            5.2 An identical question came to be considered by this Court in
       the case of T. Devaki (supra). In paragraph 10, this Court has observed
       and held as under:
             “10. Provisions of the aforesaid sections are inbuilt safeguards
             against the delays that may be caused in considering the
 B           representation. If the time frame, as prescribed in the aforesaid
             provisions is not adhered to, the detention order is liable to be
             struck down and the detenu is entitled to freedom. Once the order
             of detention is confirmed by the State Government, maximum
             period for which a detenu shall be detained cannot exceed 12
             months from the date of detention. The Act nowhere requires the
 C           detaining authority to specify the period for which the detenu is
             required to be detained. The expression “the State Government
             are satisfied that it is necessary so to do, they may, by order in
             writing direct that during such period as may be specified in the
             order” occurring in sub-section (2) of Section 3 relates to the
             period for which the order of delegation issued by the State
 D
             Government is to remain in force and it has no relevance to the
             period of detention. The legislature has taken care to entrust the
             power of detention to the State Government; as the detention
             without trial is a serious encroachment on the fundamental right
             of a citizen, it has taken further care to avoid a blanket delegation
 E           of power, to subordinate authorities for an indefinite period by
             providing that the delegation in the initial instance will not exceed
             a period of three months and it shall be specified in the order of
             delegation. But if the State Government on consideration of the
             situation finds it necessary, it may again delegate the power of
             detention to the aforesaid authorities from time to time but at no
 F           time the delegation shall be for a period of more than three months.
             The period as mentioned in Section 3(2) of the Act refers to the
             period of delegation and it has no relevance at all to the period for
             which a person may be detained. Since the Act does not require
             the detaining authority to specify the period for which a detenu is
 G           required to be detained, order of detention is not rendered invalid
             or illegal in the absence of such specification.”
               5.3 Applying the law laid down by this Court in the aforesaid
       decision and, even otherwise, considering the provisions of Section 3
       read with Section 13 of the Act, the High Court has committed a grave
       error in holding that as the period of detention of 12 months was mentioned
 H     in the order of detention, the same is contrary to Section 3 of the Act
       and, therefore, the same is liable to be quashed and set aside.
            STATE OF MAHARASHTRA & ORS. v.                                       1161
          BALU S/O WAMAN PATOLE [M. R. SHAH, J.]

       5.4 The High Court has wrongly relied upon and mis-interpreted            A
Section 3 (2) of the Act with respect to the period of detention. As
observed hereinabove, sub-section (2) of Section 3 of the Act relates to
the period for which the order of delegation issued by the State
Government is to remain in force and does not relate to the period of
detention. Under the circumstances, the observations made by the High
Court in paragraph 33 of the impugned Judgment and Order and one of              B
the grounds on which the order of detention is set aside, namely, that as
in the detention order the period of detention for 12 months is mentioned,
the same is illegal, the same is contrary to sub-section (2) of Section 3 of
the Act, cannot be sustained and deserves to be quashed and set aside.
      5.5 Even the directions issued by the High Court in Clauses (IV),          C
(V) and ((VI) of the operative part, namely,”(i) A copy of this
decision to be sent to each District Legal Services Authority and
also to the High Court Legal Services Authority at places like
Aurangabad, Mumbai, Nagpur and Goa for providing legal aid in
cases of preventive detention; (ii) A copy of this decision to be sent
                                                                                 D
to Home Department for circulation, sending to detaining authority.
After executing detention order a copy of detention order and
grounds of arrest need to be supplied by detaining authority to
District Legal Services Authority of that district within 48 hours of
the detention; and(iii)District Legal Services Authority to give legal
aid to detenu on the day when the copy of detaining authority is                 E
received. A copy of this decision to be supplied to the counsel
appointed through legal aid.”, are absolutely unwarranted and not
required and the same deserve to be set aside.
       6. In view of the above and for the reasons stated above, though
we confirm the impugned Judgment and Order passed by the High Court              F
quashing and setting aside the detention order on merits, we set aside
that part of the impugned Judgment and Order passed by the High Court
by which the High Court has set aside the order of detention on the
ground that as in the detention order the period of 12 months is mentioned,
the same is contrary to sub-section (2) of Section 3 of the Act, more
particularly the observations made by the High Court in paragraph 33 of          G
the impugned Judgment and Order. The directions issued by High Court
contained in Clauses (VI), (V) and (VI) of the operative portion of the
impugned Judgment and Order, reproduced hereinabove, are also quashed
and set aside. Disposed of in the aforesaid terms.
                                                                                 H
Divya Pandey                                               Appeal disposed of.