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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1681 OF 2019 [SLP (Crl)...... @ D. No. 25956 of 2019]

State of Maharashtra & Ors.       .. Appellants

Versus

Balu S/o Waman Patole        .. Respondent

J U D G M E N T

M.R. SHAH, J.

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 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, Drug­Offenders, Dangerous Persons,

Video Pirates, Sand Smugglers and Persons Engaged in Black­

Marketing of Essential Commodities Act, 1981 (hereinafter

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referred to 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 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

respondent­detenu.   That, thereafter the 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 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.

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4. Though served, nobody has remained present on behalf of

the respondent­detenu. 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

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 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 3(1) of

the  Act  and not  with respect to the  period of  detention to  be

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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 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.

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 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

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concerned, considering the provisions of Section 3 read with

Section 13 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 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 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 sub­section (1), exercise the powers conferred by the said sub­section:

Provided  that the  period specified in the  order made by the 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.

(3) When any order is made under this section by an officer mentioned in sub­section (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, in the meantime, it has been approved by the State Government.”

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“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 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, sub­section (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

powers can be delegated to the Jurisdictional District Magistrate

or the Commissioner of Police, as provided in sub­section (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

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

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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.    

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 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 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 sub­section (2) of Section 3 relates to the period for which the order of delegation issued by the State 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 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

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finds it necessary, it may again delegate the power of detention  to the  aforesaid  authorities from  time  to time  but at  no 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 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 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.   

5.4 The High Court has wrongly relied upon and mis­interpreted

Section 3 (2) of the Act with respect to the period of detention. As

observed hereinabove, sub­section (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 the grounds on which

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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),

(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

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

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.

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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 quashing and setting aside the detention order on

merits, we set aside the finding in 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 sub­section (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 and

Order, reproduced hereinabove, are also quashed and set aside.

Disposed of in the aforesaid terms.

……………………………….J.    [INDIRA BANERJEE]

  ……………………………….J.    [M. R. SHAH]    

New Delhi, November 13, 2019.