State of Maharashtra & ors.v. Balu S/o Waman Patole, [SLP (Crl)…… @ D. No. 25956 of 2019] – November 13, 2019
The detaining authority has preferred an appeal on the order passed by the High Court dated 26.03.2019. The Aurangabad Bench of the Bombay High Court has quashed the order passed by the Commissioner of Police under Section.3 (1) & Section.3 (2) of the Maharashtra Prevention of Dangerous Activities Act, 1981 and the order of detention made by the State Government. Under the above mentioned act the respondent was detained, considering him a ‘dangerous person’. This order was approved also by the State Government. The respondent challenged this order before the High Court which was quashed subsequently.
Issue court addressed is Whether the detention order of 12 months is in breach of Section 3 sub-clause (1) and sub-clause (2) and Section 13 of the Maharashtra Prevention of Dangerous Activities Act, 1981?
The appellant’s contested that Nobody has remained present on behalf of the respondent- detenu. Shri Nishant Ramakantrao Katneshwarkar, learned counsel appeared on behalf of the State- detaining authority. He vehemently submitted that the order of the High Court is not sustainable at law which set aside the detention order passed by the detaining authority which prescribes detention of 12 months to the respondent. According to the case T.Devika V. Government of Tamil Nadu (1990) 2 SCC 456 also the above order of High court is invalid. The High Court’s decision, that the detention order is in breach of Section.3 of the Act, is not within the ambit of Section.3 & Section.13 of the Act.
Section.3 (2) refers only the delegation of powers to the District Magistrate or Commissioner of Police to detain a person Under Section.3 (1) and not the about the period of detention. Under Section.13, a person cannot be detained more than 12 months from the date of detention. Neither Section.3 nor Section.13 mandates the detaining authority to specify the period of detention.
The apex court observed that the setting aside of the detention order is not sustainable under Section.3 & Section.13. The High court relied upon Section.3 (2) of the Act. The sub-section talks only about the period for which the order of delegation remains in force and not period of detention. The legislature has entrusted the power of detention to the State Government and the same power can be delegated to the Jurisdictional District Magistrate or the Commissioner of Police, as provided by sub-section (2) of Section 3 of the Act. Also Section 13 says that a person can be detained under the act for such a period not exceeding the maximum of 12 months from the date of detention. The detention order passed by the authorities, mentioned under Sub-Section (2) of Section 3 of the Act, should be confirmed by the State Government. Section 13 says that the maximum detention period cannot exceed 12 months from the date of detention. It does not specify the period for which the detenu is required to be detained.
An identical question came to the consideration of Court in the Case of T. Devika v. Government of Tamil Nadu (1990) 2 SCC 456. The Court has noted the paragraph 10 of the Judgment. Applying the law laid down by this Court in the above decision and considering the provisions of Section 3 read with Section 13 of the Act, it can be observed that the High Court of Bombay has committed a grave error in holding the period of detention of 12 months. It should to be quashed and set aside.
The High Court of Bombay has wrongly interpreted Section 3 Sub-Section (2) of the Act with respect to the period of detention. Thus the impugned Judgment and Order of the High Court of Bombay is illegal and the same is contrary to sub-section (2) of Section 3 of the Act. The above judgment cannot be sustained and deserve to be quashed and set aside.
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.
Also the High Court has issued directions under its Judgment in Clause (IV), Clause (V) and Clause (VI) under its Judgment. It is unwarranted and should to be set aside.
From the above mentioned reasons the Supreme Court has confirmed that the impugned Judgment and Order passed by the High Court which quashed and set aside the detention order is invalid on the grounds of sub-section (2) of Section 3 of the Act and particularly on the observations made by the high Court in paragraph 33 of the impugned Judgment and order.
Also the direction issued by the High Court in connection with its order in Clause (VI), Clause (V) and Clause (VI) of the operative portion of the impugned Judgment and order, should be quashed and set aside.
View/Download Judgment: State of Maharashtra & ors.v. Balu S/o Waman Patole,
– Priyadharshini R
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