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Deepak Rama Umbrajkar vs The Commissioner Of Police, … on 2 August, 1991

Bombay High Court Deepak Rama Umbrajkar vs The Commissioner Of Police, … on 2 August, 1991Equivalent citations: 1992 CriLJ 1569 Author: M Dudhat Bench: M Dudhat, R Sindhakar

JUDGMENT

M.L. Dudhat, J.

1. By this writ petition the petitioner has challenged the detention order dated 14th January, 1991 issued by the Commissioner of Police, Greater Bombay, respondent No. 1.

2. The petitioner in this case was detained by an earlier order of detention dated 17th August, 1990 under S. 3(2) of the National Security Act, 1980 (hereinafter referred to as ‘the N.S.A.’ for the sake of brevity). The said order of detention was revoked by respondent No. 2 the State of Maharashtra on 11th January, 1991. Therefore on 14-1-1991 the present impugned order of detention under S. 3(2) of the N.S.A. was issued by respondent No. 1. This fresh order of detention dated 14-1-1991 is challenged by the petitioner is this petition.

3. Shri Thakare, learned counsel appearing on behalf of the petitioner has challenged the aforesaid order on various grounds. Firstly, it was argued on behalf of the petitioner that the order of detention is bad in law, on the same was issued mala fide sheerly with the intention to frustrate due process of law. To support the aforesaid contention, Shri Thakare contended that the earlier order of detention issued by respondent No. 1 on 17-8-1990 was challenged by the petitioner by a writ petition being Criminal Writ Petition No. 1500 of 1990 which was filed on 21-12-1990. The said petition came up for admission in December, 1990 and the rule was made returnable on 21st January, 1991. In the aforesaid writ petition the High Court was pleased to give a short date because the petitioner agreed to agitate the said writ petition on certain preliminary points of jurisdiction. However, according to the petitioner when the matter came up for hearing on 21st January, 1991, the respondent failed to file the affidavits and, therefore, the said matter was further adjourned to 1st Feb., 1991. On the said date when the matter was called for final hearing, the Court was informed by the Public Prosecutor that the earlier order of detention was revoked by respondent No. 2 on 11th January, 1991. It was argued, therefore, on behalf of the respondents that since the order of detention dated 17-8-1990 which was challenged in the said writ petition was revoked, the writ petition filed by the petitioner had become infructuous and, therefore, the petitioner should withdraw the said writ petition. However, it was contended on behalf of the petitioner that though the order of detention dated 17-8-1990 was revoked, on 11-1-1991, still even on that date of hearing i.e. on 1st February, 1991 the petitioner was not released from the jail and, therefore, the petitioner did not wish to withdraw the petition. After hearing both the sides, this Court passed the following order :-

Mr. Y. V. Patil states that impugned order has since been revoked by the State Government in view of the recent judgment of the Supreme Court, petition has thus become infructuous. Mr. Thakare for petitioner however does not wish to withdraw this petition as, according to him, the petitioner is continuing under detention. If that he so, petitioner is at liberty to challenge his detention under any other order.

Hence : Rule discharged.”

4. Shri Thakare contended that the earlier detention order dated 17-8-1990 was challenged by the petitioner in Criminal Writ Petition No. 1500 of 1990 on preliminary grounds. In fact, in view of the Supreme Court decision in the case of Abhay Shridhar Ambulkar v. S. V. Bhave, Commr. of Police, , the said petition would have been allowed and the order of detention dated 17-8-1990 would have been set aside by the High Court. Apprehending this, respondent No. 2 revoked the order of detention dated 17-8-1990 by order dated 11-1-1991. Further, after the withdrawal respondent No. 1 issued the fresh detention order on the same facts and on the same grounds vide his order dated 14-1-1991. From these facts, it was argued on behalf of the petitioner by Shri Thakare that the whole attempt of respondent Nos. 2 and 1 in revoking the order of detention and clamping the order of detention on the same grounds was with the intention to frustrate the due process of law, as the earlier order would have been set aside by the order in the writ petition filed by the petitioner. Under the abovementioned circumstances, if the said order would have been set aside by the High Court in the writ petition, the respondents could not have clamped the successive order of detention on the same facts and on the same grounds. Therefore, it was argued by Shri Thakare that the order of revocation dated 11-1-1991 and the successive order of detention dated 14-1-1991 are invalid as these orders are issued with the mala fide intention.

5. As against this, Shri Page, learned Public Prosecutor, appearing on behalf of the respondents, contended that the earlier order of detention was revoked by respondent No. 2 in view of the decision given by the Supreme court in Ambulkar’s case (supra). It was contended on behalf of the respondents that the notification issued by the Government under sub-sec. (3) of S. 3 empowering the Commissioner of Police at Bombay, was found to be defective as per the view expressed by the Supreme Court in Ambulkar’s case . Therefore, in order to remove the technical error and set it right, respondent No. 2 cancelled the earlier notification dated 25-10-1990 by order dated 8-1-1991 and issued on the same day fresh notification dated 8-1-1991 empowering the Commissioner of Police, Greater Bombay, to act under sub-sec. (3) of S. 3 of the N.S.A. Respondent No. 1 issued the fresh detention order on 14-1-1991 in pursuance of the authority given to him by the notification dated 8-1-1991 issued in his favour by respondent No. 2 under S. 3(3) of the N.S.A. It was, therefore, contended on behalf of the respondents that all these aforesaid steps were taken only with the view of averting the technical defect which was brought to the notice of the State Government, respondent No. 2 after the decision of the Supreme Court in Ambulkar’s case.

6. We have heard the arguments of both the sides on the aforesaid point. According to us, S. 14 of the N.S.A. empowers the Government to revoke or modify a detention order at any time. Once the earlier detention order is revoked or modified as per S. 14(1), then the successive order of detention on the same facts can be issued under sub-sec. (2) of S. 14. According to us, in the present case the act of the State Government in withdrawing the earlier notification dated 25-10-1990 and issuing the fresh notification empowering the respondent No. 1 on 8-1-1991 and revoking the order of detention dated 17-8-1990 by order dated 11-1-1991 and thereafter issuing the detention order dated 14-1-1991 by respondent No. 1 does not smack of mala fide but appears to be proper exercise of power to bring the things in consequence with the judicial expectation.

7. Shri Thakare, learned counsel for the petitioner, also contended that the impugned detention order suffers from the vice of total non-application of mind. To substantiate his argument on this point, Shri Thakare referred to the preamble in the grounds of detention dated 14-1-1991. In the preamble it is stated that the Government of Maharashtra cancelled the order of delegation of power under sub-sec. (3) of S. 3 of the said act on the Commissioner of Police, Greater Bombay vide its order dated 8-1-1991 and revoked the said detention order vide order dated 11-1-1991. The order dated 8-1-1991 is as under :-

“ORDER

Home Department (Special)

Mantralaya, Bombay-400 032

Dated the 8th January, 1991

No. NSA 2390/1/SPL 3(B) : Government is pleased to direct that the order No. NSA 2390/1/SPL 3(B) dated the 25 October, 1990 empowering Commissioner of Police, Greater Bombay to exercise powers of sub-sec. (2) of S. 3 of the National Security Act, 1980 by him for the period commencing on 30th October, 1990 and ending on 29th January, 1991, is hereby cancelled.

By order and in the name of the

Governor of Maharashtra,

Sd/-

Desk Officer, Home Department (Special)

Government of Maharashtra.”

By referring to the aforesaid order dated 8-1-1991 Shri Thakare argued that by this order delegation of power under sub-sec. (3) of S. 3 of the N.S.A. by respondent No. 2 the State of Maharashtra to respondent No. 1 the Commissioner of Police, Bombay, was cancelled in respect of the period commencing from 30th October, 1990 and ending on 29th January, 1991 and it is because of this notification the preamble dated 14-1-1991 stated that the preamble dated 14-1-1991 states that the order of revocation revoking the detention order dated 17-8-1990 was passed on 11-1-1991. However, the earlier detention order passed by respondent No. 1 was much prior to 30th October, 1990 i.e. it was passed on 17-8-1990. Therefore, according to him, the cancellation of power by respondent No. 2 in favour of the respondent No. 1 in respect of the period mentioned in the notification dated 8-1-1991 has no nexus with the earlier detention order dated 17-8-1991 and, therefore, this itself shows total non-application of mind of the part of the detaining authority.

8. Shri Thakare further relied on certain averments made by the detaining authority in the grounds of detention. He referred to the following portion in the grounds of detention :-

“As a result of your above mentioned violent activities, the peace loving and law abiding citizens in the localities of Nehru Nagar, Century Bazar, Dr. A.B. Road, Worli, Old Prabhadevi, Road, and areas adjoining thereto in the jurisdiction of Dadar Police Station in Greater Bombay are experiencing a sense of insecurity and are living under a constant shadow of fear, which activities of your are prejudicial to the maintenance of public order in the said locations in Greater Bombay.”

It was contended on behalf of the petitioner that from 17th August, 1990 the petitioner was detained till today. However, while issuing the successive detention order and the grounds therefor on 14-1-1991, the detaining authority was referred to the citizens residing of Nehru Nagar, Century Bazar, Dr. A.B. Road etc. who are experiencing a sense of insecurity and are living under a constant shadow of fear, which activities of the petitioner are prejudicial to the maintenance of public order in the said localities in Greater Bombay. It was argued on behalf of the petitioner that when the detenu is in the prison, how is it that the citizens in the concerned localities are going to experience a sense of insecurity and were living under the constant shadow of fear. It is submitted that it is impossible to create such type of effect in the locality when the petitioner is under detention. This, according to the petitioner also supports his argument that the order of detention and the grounds for detention were given without application of mind and on the basis of this ground also the impugned order is liable to be set aside.

9. Shri Page, learned Public Prosecutor, appearing on behalf of the respondents, submitted that in fact there is no material on record to show that the respondents have not applied their mind at the time of issuing the detention order dated 14-1-1991 and the grounds in support of the said detention order. According to Shri Page, respondent No. 2 issued notification under sub-sec. (3) of S. 3 of the N.S.A. on 19th July, 1990 covering the period from 30th July, 1990 to 29th October, 1990. The second notification under sub-sec. (3) of S. 3 of the N.S.A. was issued by respondent No. 2 on 25th October, 1990 covering the period from 30th October, 1990 till 29th January, 1991. During the aforesaid period the Supreme Court gave the decision in Ambulkar’s case on 17th December, 1990. In view of the said decision, in order to remove the technical defect in the earlier notification respondent No. 2 withdrew the second notification on 8-1-1991 and on the same day issued the fresh notification empowering respondent No. 1 to act under sub-sec. (3) of S. 3 of the N.S.A. On 8-1-1991 the period covered in earlier notification dated 19th July, 1990 was already over and since the said period become irrevocably past, according to the respondents there was no question of revoking the said notification and, therefore, it was contended on behalf of the respondents that, respondent No. 2 was right in revoking only the second notification which was still operative from 8-1-1991 till 29-1-1991. According to Shri Page, learned Public Prosecutor for the respondents, this clearly shows proper application of mind on the part of respondent No. 2.

10. As regards the contention on behalf of the petitioner that while the petitioner was under detention for about five months prior to the issuance of the order dated 14-1-1991, there was no question of any law-abiding citizens in the concerned localities experiencing sense of insecurity, it was argued on behalf of the respondents that the respondents are justified in making the relevant observations in the grounds of the detention. According to the respondents, the earlier activities of the detenu prior to the decision order dated 17-8-1990 were such that in spite of the fact that the detenu was taken in detention, the same fear and sense of insecurity continued in the minds of the citizens of the said localities. It is because of the brazen way in which the detenu used to attack in the localities mercilessly. It was further argued on behalf of the respondents even the Legislature though it fit in such type of cases to kept the detenu under detention for a total period of one year if other conditions precedent under the Act are fulfilled. In view of this, it was argued on behalf of the respondents that the aforesaid portion relied on by the detenu in the grounds of detention does not show non-application of mind on the part of the detaining authority, but in fact shows that the aforesaid observations are made by the respondents after careful consideration of the matter.

11. Without prejudice to the aforesaid contentions, Shri Page, learned Public Prosecutor appearing on behalf of the respondents, contended that even presuming without that there are few mistakes of technical nature of grammatical errors in the order of detention or the grounds of detention, the same are not demonstrative of non-application of mind. For this proposition, he relied on the ratio decided by this High Court in the case of Tejpal K. Mandot v. The Asstt. Secretary, Govt. of Maharashtra, Home Deptt. (Spl), Mantralaya, Bombay, 1983 Mah LJ 46. In our opinion, the irregularities pointed out by the learned counsel on behalf of the petitioner are on minor particulars and are not of such nature by which one can infer non-application of mind of the detaining authority.

12. Thirdly, it was argued on behalf of the petitioner that at the time of issuance of detention order dated 14-1-1991 there was no subjective satisfaction that the successive order of detention was a compelling necessity in spite of the detenu having remained under detention for a period of more than five months. Shri Thakare, learned counsel on behalf of the petitioner, contended that admittedly the earlier detention order was issued on 17-8-1990 and successive detention order was issued on 14-1-1991. That means, according to him, at the time of issuance of successive detention order on 14-1-1991 the petitioner was already in detention for a period of about five months. The detaining authority ought to have taken into consideration this aspect and after assessing the effect of such detention in the concerned localities, ought to have arrived at subjective satisfaction successive detention was a compelling necessity after the efflux of time of five months. Shri Thakare relied on the observations of the Supreme Court in the case of Avtar Singh v. State of Jammu and Kashmir, . In the aforesaid case the Supreme Court observed (Para 1) :- “A reading of the grounds of detention does not indicate that the detaining authority was aware that the detenus were already in detention for some months; nor does it indicate whether the detaining authority considered the question whether further detention of the detenus was necessary in the circumstances. In the absence of any indication from the record as to why the earlier orders of detention were revoked and the failure of the detaining authority to consider the question whether the further detention of the detenu was necessary despite the revocation of the earlier orders, we can only conclude that the orders of detention were made in a mechanical fashion without application of mind.”

13. Shri Thakare also relied on one more unreported decision of this High Court in the case of Sunil Atmaram Burkar v. S. V. Bhave, Commissioner of Police for Greater Bombay, Criminal Writ Petn. No. 657 of 1990, (Coram : S. P. Kurdukar and Dr. Da Silva, JJ.) dated 20th August, 1990, and also another unreported decision in the case of Gopal Thavardas Rajwani v. R. D. Tyagi, Commissioner of Police, Thane, Criminal Writ Petn. No. 90 of 1991 (Coram : S. W. Puranik and M. F. Saldanha, JJ.) dated 11th March, 1991 (reported in 1991 Cri LJ 3200). In both these decisions it is held that the detaining authority ought to be subjectively satisfied to the effect that the redetention of the detenu is necessary despite his having been in custody for some substantial period under earlier order of detention. Recording of this compelling necessity in the order of detention is a must.

14. From the aforesaid arguments, we have to see in the present case as to whether the detaining authority firstly was award of the earlier detention of the petitioner, secondly, whether the detaining authority has arrived at subjective satisfaction that the redetention was a compelling necessity in spite of the detenu having remained under detention for a period of five months and thirdly, whether the same was communicated to the detenu. In the grounds of detention dated 14-1-1991 the detaining authority in the preamble as referred to the earlier order of detention, revocation thereof and issuance of the fresh order dated 14-1-1991. From this it is clear that the detaining authority was aware of the earlier detention order and the earlier detention of the detenu prior to the issuance of successive detention order dated 14-1-1991. Even the documents annexed to the grounds of detention also clearly show the awareness of the detaining authority to that effect. While concluding in the grounds of detention in one of the paragraphs the detaining authority has observed :- “I have carefully gone through the material placed before me and I am subjectively satisfied that you are acting in a manner prejudicial to the maintenance of public order and that it is necessary to detain you under the National Security Act, 1980 to prevent you from indulging in such prejudicial activities in future. I am also satisfied that if you are not detained, you will continue indulging in similar activities.”

The conclusion of the detaining authority that the detaining authority is satisfied that if the detenu is not detained, he will continue indulging in similar activities mentioned in the earlier paragraph in future itself shows that the detaining authority has applied its mind to the fact that the detenu was in detention and in spite of the detention, if the detenu is not detained, he will continue to indulge in similar activities. In all the cases cited by the petitioner namely, and unreported decisions there was nothing on record to show that the detaining authorities were aware of the earlier detention of the detenu and that they were satisfied that further detention was necessary due to the compelling necessity to prevent further danger. In view of this, according to us, in the present case not only the detaining authority was aware of the earlier detention of the detenu but was also subjectively satisfied that successive detention of the detenu was compelling necessity in spite of the detenu having remained under detention for a period of five months.

15. Shri Thakare learned counsel appearing on behalf of the petitioner, also contended that in the present case the order of detention dated 17-8-1990 issued by respondent No. 1 the Commissioner of Police was revoked by the State Government, respondent No. 2, by the order of revocation dated 11-1-1991 and, therefore, respondent No. 1 the Commissioner of Police was not competent to issue the fresh order of detention on 14-1-1991 on the same facts.

16. Shri Kotwal, learned counsel appearing on behalf of a petitioner in one of the petitions along with the present petition on common law point also contended supporting Shri Thakare, learned counsel appearing on behalf of the present petitioner, that when the order of detention was revoked by the State Government under S. 14(1) of the N.S.A. respondent No. 1 the Commissioner of Police had no power to pass the order of redetention under S. 14(2) read with the proviso to the said section. It was contended by Shri Thakare as well as Shri Kotwal that since the order of detention dated 17-8-1990 was revoked by the State Government (on merits,) respondent No. 1 the Commissioner of Police being an officer subordinate to the State Government, respondent No. 2, cannot go behind the order of revocation and pass the fresh order of detention on the same facts.

17. Shri Thakare, learned counsel on behalf of the present petitioner, submitted that respondent No. 1 though under the provisions the N.S.A. can issue the order of detention if he is empowered to do so under sub-sec. (3) of S. 3 of the N.S.A., still his power is subordinate to the power of the State Government. To lend support of this argument, Shri Thakare referred to sub-sec. (4) of S. 3 and also S. 14 wherein such an officer is referred to as subordinate to the State. It was further argued by Shri Thakare on behalf of the petitioner that even if the order is issued by the Commissioner of Police, respondent No. 1 under sub-sec. (3) of S. 3, the said order, remains in force only for twelve days unless in the meantime the same is approved by the State Government. From this, according to Shri Thakare, the Commissioner of Police, respondent No. 1 is a subordinate authority to the State Government, respondent No. 2. In the present case, according to him, the State Government by notification dated 11-1-1991 revoked the earlier detention order dated 17-8-1990. Since the State Government revoked the earlier detention order dated 17-8-1990, respondent No. 1 the subordinate officer had no authority to issue successive detention order which can only be issued by respondent No. 1.

18. While dealing with the arguments on mala fides in the earlier portion of our judgment we have already pointed out as to how in order to avoid the technical difficulty in the earlier detention order dated 17-8-1990 due to the defective notification dated 19th July, 1990 and 25th October, 1990, respondent No. 2 was required to revoke the earlier detention order. Therefore, from the facts of this case it is clear that the revocation order was not on merits but only to remove the technical error in the earlier notification. If the earlier order would have been revoked as per the provisions under sub-sec. (3) of S. 3 or under S. 3(4) of the N.S.A. then the submissions made by Shri Thakare on behalf of the petitioner would have required consideration. However, since in the present case the detention order was revoked as per S. 14(1) on technical grounds, there is no substance in the argument of the learned counsel on behalf of the petitioner that the detention order was revoked on 11-1-1991 on merits.

19. Further it is pertinent to note that the detention order is defined under S. 2(b) which is as under :-

“2. (b) “detention order” means an order made under S. 3.”

Under the N.S.A. sub-sec. (2) of S. 3 empowers the Central Government or the State Government to issue detention order. Under sub-sec. (3) of S. 3 the State Government is empowered to delegate its power under sub-sec. (2) of S. 3 of the Commissioner of Police in Greater Bombay and to the District Magistrate outside Greater Bombay. Therefore, when respondent No. 1 exercises the power of detention, he exercised the powers which are vested in the Stage Government under sub-sec. (2) of S. 3. Therefore, under the Act, there is no distinction between the order made by the State Government or respondent No. 1 the Commissioner of Police. Under S. 14(1) power is given to the State Government or the Central Government, as the case may be, to revoke the order of detention any time. However this power of revocation is not given to the delegate i.e. respondent No. 1 the Commissioner of Police in the present case. Under sub-sec. (2) of S. 14 when revocation is made under S. 14(1), such revocation shall not bar making of another detention order. In this sub-sec. (2) of S. 14 the words used are “detention order” and, therefore, the fresh order can be issued in the present case by the State Government under sub-sec. (2) of S. 3 or by respondent No. 1 if there is a delegation under sub-sec. (3) of S. 3 of the N.S.A. The fact that respondent No. 1 was delegated with the power to issue detention order is not disputed and, therefore, in our opinion, the order of detention dated 14-1-1991 issued by respondent No. 1 is a detention order as contemplated under S. 14(2) of the N.S.A.

20. Shri Thakare, learned counsel appearing on behalf of the petitioner, strenuously argued that the case of the detenu under the N.S.A. is required to be referred to the Advisory Board with a period of three weeks counting from the first date of actual detention. According to him, by the detention order dated 17-8-1990 the present petitioner was actually detained on 17-8-1990. Thereafter successive detention order was passed on 14-1-1991 and the case of the petitioner was referred under S. 10 of the N.S.A. to the Advisory Board on 24-1-1991. The learned counsel on behalf of the petitioner contended that since the petitioner was detained on 17-8-1990 the petitioner’s case ought to have been referred by the respondents to the Advisory Board under S. 10 on or before 7th September, 1990. Shri Thakare, therefore, contended that since he reference was made to the Advisory Board by the respondents much after 7th September, 1990 on 24th January, 1991, the continued detention of the petitioner by the order dated 14-1-1991 is invalid. To support the aforesaid proposition, Shri Thakare on behalf of the petitioner has relied upon the decision in the case of Abdul Latif Abdul Wahab Sheikh v. B. K. Jha, . In para 3 of the said judgment the Supreme Court observed :- “So, avoiding the collision course, we hold that if the report of the Advisory Board is not made within three months of the date of detention, the detention becomes illegal notwithstanding that it is within three months from the date of the second order of detention.”

Relying on the aforesaid observations, it was contended on behalf of the petitioner that even if in the present case reference was made under S. 10 of the N.S.A. to the Advisory Board on 24-1-1991 i.e. within three months from the successive detention order dated 14-1-1991, still since the same was not made within three weeks from the date of actual detention of the detenu i.e. within three weeks from 17-8-1990, the successive order of detention dated 14-1-1991 has become invalid and the same has become illegal and inoperative.

21. As against this, Shri Page, learned Public Prosecutor, on behalf of the respondents, contended that in the present case after the issuance of the detention order dated 17-8-1990, the case of the detenu was referred under S. 10 of the N.S.A. to the Advisory Board on 27-8-1990 i.e. within ten days of the order of detention and of actual detention. He further submitted that the Advisory Board gave the report and the same was received on 4-10-1990 and the Government confirmed the order of detention on 6-10-1990. By pointing out the aforesaid factual aspect in the present case, it was contended on behalf of the respondents that the respondents complied with all the formalities and the requirements as laid down under the N.S.A. and also under Art. 22 of the Constitution of India. It was further contended on behalf of the respondents that thereafter the order of detention dated 17-8-1990 as confirmed by the Government on 6-10-1990 was revoked by respondent No. 2 under S. 14(1) of the N.S.A. on 11-1-1991 and successive order of detention under S. 14(2) dated 14-1-1991 was issued by respondent No. 1 which was actually served on the petitioner on 15-1-1991. It was further contended on behalf of the respondents on 21-1-1991 the said order of detention dated 14-1-1991 was sent for Government’s approval and the report under S. 3(5) of the N.S.A. was sent to the Government of India on 21-1-1991. The case of the petitioner was referred under S. 10 of the N.S.A. to the Advisory Board on 24-1-1991 and the opinion of the Advisory Board dated 2nd March, 1991 was received on 2nd March, 1991. The successive order of detention dated 14-1-1991 was confirmed by respondent No. 2 Government on 7th March, 1991. By pointing out the aforesaid dates, it was submitted on behalf of the Government that all the requirements under the N.S.A. as well as under Art. 22 of the Constitution of India were complied with in respect of the detention order passed against the petitioner dated 14-1-1991. By giving the aforesaid factual details, it was argued on behalf of the respondents that the respondents complied with all the requirements of the N.S.A. as well as Art. 22 of the Constitution of India in respect of the earlier detention order dated 17-8-1990 and successive detention order dated 14-1-1991 and, therefore, the successive order of detention dated 14-1-1991 is perfectly valid order.

22. It was contended on behalf of the respondents that the ratio of the decision of the Supreme Court in Abdul Latif’s case, is not applicable in the facts and circumstances of the present case. It was contended by Shri Page, learned Public Prosecutor on behalf of the respondents, that in the aforesaid case decided by the Supreme Court, after the issuance of the order of detention, the State of Gujarat failed to comply with the requirements of Art. 22(4) of the Constitution of India. Art. 22(4) is as under :-

“22(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless –

(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention;

Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of Cl. (7); or

(b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of Cl. (7).”

As per the aforesaid provisions as contained in Art. 22, no law providing for preventive detention can authorise the detention of a person for a longer period than three months unless the matter is referred to the Advisory Board and the Advisory Board, before the expiration of three months, gives its opinion that there is sufficient cause for the detention of the detenu beyond three months.

23. Shri Page contended that in the case decided by the Supreme Court the detenu was detained under Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as ‘the Act of 1985’ for the sake of brevity). In the said Act of 1985, S. 11 stipulates that in every case where a detention order has been made under the Act of 1985, the State Government shall, within three weeks from the date of detention of a person under he order, place before the Advisory Board the grounds on which the order has been made, the representation, if any, made by the detenu and the report, if any, of the authorised officer. In the said case though the order of detention was passed on 23rd June, 1986, there was no advisory Board constituted under S. 11 by the State Government. The period of three weeks as contemplated by S. 11 of the Act of 1985 expired on 14th July, 1986 and, therefore, the petitioner was entitled to be released on 14th July, 1986, as there was no reference made to the Advisory Board within the period contemplated by S. 11 of the Act of 1985. However, on 23rd June, 1986 the State of Gujarat revoked the earlier order of detention and a fresh order of detention was made on the same facts on the same day. Consequent on the revocation of the said order, the writ petition filed by the petitioner against the earlier order of detention was withdrawn as the same become infructuous. On 7th August 1986 the redetention order was passed and the same was referred on 20th August, 1986 to the Advisory Board constituted under S. 11 on 18th August, 1986. The redetention order dated 7th August, 1986 was referred to the Advisory Board within three weeks from the date of the said order. The Supreme Court, in the facts and circumstances of that case, held that the earlier detention order dated 23rd June, 1986 became invalid on 14th July, 1986 as the State of Gujarat failed to refer the case of the detenu within three weeks from the date of detention under S. 11 of the said Act of 1985.

24. The ratio in Abdul Latif’s case (1987 Cri LJ 700) (SC) (supra) is that though the making of successive order of detention is permissible, yet the successive order cannot be made in a manner as to render the protection of Art. 22(4) of the Constitution of India ineffective. In short, it was argued on behalf of the respondents that powers under S. 14 of the N.S.A. are available to the State Government or the Union Government provided while passing the earlier order of detention all the conditions of Art. 22 of the Constitution of India and all the conditions as laid down under the N.S.A. are complied with. If in a given case there in a failure on the part of the concerned authority to comply with any of the conditions as laid down by Art. 22 of the Constitution of India or as laid down by the N.S.A., then the powers to revoke as envisaged under S. 14 of the N.S.A. are not available to the State Government or the Union Government, as the case may be. Therefore, it was contended on behalf of the respondents that in such a case of successive detention order cannot be issued by the concerned authority. Shri Page, learned Public Prosecutor, appearing on behalf of the respondents, therefore, submitted that in Abdul Latif’s case (1987 Cri LJ 700) (SC) by not referring the earlier detention order to the Advisory Board, the earlier order become invalid in view of Art. 22(4) of the Constitution of India and, therefore, the Supreme Court held (at p. 702 of Cri LJ) :- “If the report of the Advisory Board is not made within three months of the date of detention, the detention becomes illegal notwithstanding that it is within three months from the date of the second order of detention.”

However, in the present case the respondents have complied with all the formalities and conditions as laid down by the N.S.A. and also of Art. 22 of the Constitution of India in respect of the earlier detention order dated 17-8-1990 and successive detention order dated 14-1-1991.

25. In the present case, admittedly after issuing the earlier order of detention, the State Government complied with all the requirements under the N.S.A. and also under Article 22 of the Constitution of India and, therefore, at the date of the issuance of revocation order dated 11-1-1991, the earlier order was a valid order. That being the position, the State Government was entitled to revoke the same under Section 14(1) of the N.S.A. which in fact was revoked on 11-1-1991. Thereafter on 14-1-1991 the successive order of detention was issued and, therefore, in the facts and circumstances of the present case, the case of the detenu was required to be referred to the Advisory Board within a period of three weeks commencing from the successive detention order i.e. 14-1-1991. If Section 14 of the N.S.A. in interpreted as per the contentions raised by Shri Thakare on behalf of the petitioner, then in that event after three months from the earlier detention order successive detention order can never be issued. However, from reading Section 14 of the N.S.A. it is clear that the State Government or the Central Government is empowered to revoke the detention order at any time. In view of this legal position, we reject the arguments made on behalf of the petitioner that the case of the petitioner was required to be referred to the Advisory Board within a period of three weeks commencing from the first detention order i.e. 17-8-1990. According to us, in the facts of the present case, the case of the detenu was required to be referred to the Advisory Board within a period of three weeks from the successive detention order i.e. from 14-1-1991.

26. Shri Thakare, learned Counsel appearing on behalf of the petitioner, also relied upon the unreported decision of Delhi High Court in the case of Gurbax Bhiryani v. Union of India, Criminal Writ Petns. Nos. 491 of 1988 and 625 of 1988, dated 7th February, 1989 (Reported in 1989 Cri LJ NOC 198 : (1989) 1 Fac 181 (Delhi)) given by the Division Bench of Talwar and Malik, JJ. In this particular case admittedly the detaining authority kept the detenu under detention for a period of three months and three weeks without obtaining report from the Advisory Board within three months. Therefore, after applying the ratio of the decision of the Supreme Court in Abdul Latif’s case (1987 Cri LJ 700) (supra), Delhi High Court held that the case of the detenu was required to be referred to the Advisory Board within a period of three weeks commencing from the first detention order. However, as pointed out earlier in the present case the respondents have complied with all the conditions as laid down by the N.S.A. and also as laid down by Article 22 of the Constitution of India in respect of both the orders of detention and, therefore, as per the finding given earlier the ratio of this case will not be applicable in the facts and circumstances of the present case.

27. It was further argued on behalf of the petitioner that the impugned order of detention dated 14-1-1991 is also invalid as the grounds on which the said order was issued were stale grounds. According to Shri Thakare, learned Counsel appearing on behalf of the petitioner, while issuing the earlier detention order dated 17-8-1990 the respondents relied upon two incidents dated 2-4-1990 and 10-5-1990 and after the said incidents, concluded that as a result of the said violent activities, peace-loving and law-abiding citizens in the concerned localities were experiencing a sense of insecurity and were living under constant shadow of fear, which activities of the detenu were prejudicial to the maintenance of public order in the said localities. It was further contended that thereafter from 17-8-1990 the petitioner remained in detention till today. While in detention the successive detention order dated 14-1-1991 was issued against the petitioner after revoking the earlier order of detention by order of a revocation dated 11-1-1991. It was contended on behalf of the petitioner that presuming without admitting that the two incidents, referred to in the earlier show cause notice, dated 2-4-1990 and 10-5-1990 had created problem of maintenance of public order in the concerned localities, still the effect of the said incidents must have subsided after the efflux of time of ten months from the date of the last incident, more particularly when the petitioner was undergoing the detention for more than five months. It was, therefore, contended on behalf of the petitioner that the grounds on which the detention order was issued became stale grounds at the time of the issuance of the impugned detention order dated 14-1-1991. However, respondent No. 1 issued the successive detention order dated 14-1-1991 relying on the same grounds and the same incidents mentioned in the earlier order of detention. It was, therefore, argued on behalf of the petitioner that since the grounds of detention mentioned in the detention order had become stale, respondent No. 1 was not entitled to issue the order of detention relying on the same stale grounds.

28. At the outset we may mention that under Section 14(2) of the N.S.A. the respondents are empowered to issue successive detention order on the same facts if the earlier order of detention is revoked under Section 14(1) of the N.S.A. The question as to whether the allegations contained in the grounds of detention amount to public order, we are going to discuss in the subsequent part of our Judgment, but presuming for a while that such allegations against the petitioner come within the ambit of words ‘public order’, we are of the opinion that the effect of the said two incidents is not such which can vanish during the course of time of five months and, therefore, we are of the opinion that there is no substance in the arguments of the petitioner that the grounds of detention mentioned in the impugned order dated 14-1-1991 have become stale and detention order ought not to have been issued in pursuance of the said grounds. At this stage, we may also mention that in the grounds of detention the detaining authority has also observed that he is also satisfied that if the petitioner is not detained, he will continue indulging in similar activities.

29. Lastly, it was argued on behalf of the petitioner that the instances referred to in the grounds of detention are in the nature of law and order situation and not relating to public order. It was contended on behalf of the petitioner that presuming without admitting that the allegations made against the petitioner in the grounds of detention are correct, the said incidents are instances of contravention of law which have no tendency to affect public order. Mere disturbance of law and order leading to disorder is not necessarily sufficient for action under the N.S.A. According to the learned Counsel appearing on behalf of the petitioner, these instances are individual acts on the part of the petitioner contravening a particular law and, therefore, are not such which can in any way affect public order. To substantiate his argument, Shri Thakare relied upon the decision in the case of Pushkar Mukherjee v. State of West Bengal, . In this case the Supreme Court observed (para 8) :- “The contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at large. In this connection a line of demarcation must be drawn between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals, and only in a secondary sense public interest. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act. A District Magistrate is therefore entitled to take action under Section 3(1) of the Act to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.”

The petitioner has also relied upon the observations of the Supreme Court in the case of State of U.P. v. Hari Shankar Tewari, , which are as under (Paras 7 and 8) :-

“Consequently there is difference between law and order and public order but what in a given situation may be a matter covered by law and order may really turn out to be one of public order. Therefore, one has to turn to the facts of each case to ascertain whether the matter relates to the larger circle (public order) or the smaller circle (law and order). An act which may not at all be objected to in certain situations in capable of totally disturbing the public tranquility. When communal tension is high, an indiscreet act of no significance is likely to disturb or dislocate the even tempo of the life of the community. An order of detention made in such a situation has to take note of the potentiality of the act objected to. No hard and fast rule can really be evolved to deal with problems of human society. Every possible situation cannot be brought under watertight classifications and a set of tests to deal with them cannot be laid down. As and when an order of detention is question, it is for the Court to apply these well-known tests to find out whether the impugned activities upon which the order of detention is grounded go under the classification of public order or belong to the category of law and order.”

After relying on the ratio of the aforesaid decision, it was contended on behalf of the petitioner that taking into consideration the two incidents referred to by the respondents in the grounds of detention and taking into consideration the degree of disturbance and the effect on the locality and the extent of their reach, it cannot be said that the two incidents are such that on the basis of which one cannot come to subjective satisfaction that the said instances are not of law and order but relating to public order. According to Shri Thakare on behalf of the petitioner both the incidents referred to are isolated stray incidents without having any potentiality to embrace large section of the society. Therefore, it was contended on behalf of the petitioner that the instances referred to in the show cause notice are such on the basis of the which subjective satisfaction can be reached about the situation of public order.

30. As against this argument Shri Page, the learned Public Prosecutor, appearing on behalf of the respondents, contended that these incidents are not stray incidents but these incidents, according to him have potentiality to disturb large section of the society and the localities and are such which will have long time effect and, therefore, according to him, these incidents, especially after taking into consideration the statement made by the petitioner himself, are of such nature concerning public order and not merely the instances of law and order.

31. In order to understand the rival contentions, it is better to go through the instances and other material relied upon by the detaining authority for his subjective satisfaction, which are as under :-

“1. On 1-4-1990 at about 1740 hours, Shri Ravindra Janardhan Mayekar was standing in front of Fernandez Pan Shop near Nehru Nagar Gate, Century Bazar, Dr. A.B. Road, Prabhadevi, Bombay-25 you went there dashing Ravindra whereupon Ravindra moved aside. You then started abusing Ravindra. Ravindra was frightened and he started going away from the place. However, you whipped out a Khanjir (Big Knife) and gave blows with it on the head and below the left ear of Ravindra. Ravindra shouted loudly attracting the attention of passers-by. However, since you are a known goonda of the area and were armed with lethal weapon, the members of public including women and children started running helter-skelter, out of fear. The residents took their children into their respective houses and latched the doors and windows. Having witnessed this violent act of yours, the local shop-keepers downed their shutters and the pan-bidi shop-keepers closed down their business. An atmosphere of panic and fear spread all over in the area and nobody came forward for rescuing Ravindra who sat down with the bleeding injuries. After the attack on Ravindra, you went to a narrow lane nearby where Shri Pradip Raghunath Bhatkar, a local resident, after having seen the turmoil that followed over your attack on Ravindra, had taken shelter. However, on your way, you tripped on the leg of Pradip Bhatkar and he stood up whereupon you stabbed on the head of Pradip with Khanjir and then ran away from the place.

The injured were treated at the K.E.M. Hospital. In this connection, Dadar Police Station registered C.R. No. 202/90 against you for offence under Section 324, I.P.C. on a complaint of Ravindra Janardhan Mayekar.

You assaulted Ravindra and Pradip in order to terrorise the local public and to prove your upper hand in the area.

You were arrested in this case on 1-4-1990 and your statement was recorded by the police wherein you admitted having committed the offence.

On 2-4-1990 when you were placed for remand before the Learned Addl. Ch.M.M., 5th Court, Dadar, in spite of police objection, you were ordered to be released on bail in the sum of Rs. 3000/- with one solvent surety in condition to attend the police station for seven days. You availed yourself of the bail facility on 3-4-1990.

II. On 10-5-1990 at about 0820 hours, Shri Mohan Devnath Chobey, Shri Prakash Tukaram Chawan, Dashrath Kashinath Narveker, Narnayya Nandayya Mutta and Jockin John Fernandez were discussing about the proposed repairs to the tourist motor car No. MMO 8226 belonging to Prakash Tukaram Chavan near Siddique Mohammed Chawl, Old Prabhadevi Road, in front of Century Motor Garage, Prabhadevi. You and your associates, Bhai Thakur, Vilas Shyam Patil, armed with knives and Namdeo Ganpat Ghadge armed with chopper went there. Your associate, Bhai Thakur stabbed on the 1st side of stomack of Prakash Chawan with a knife. You and your associates then gave repeated blows with your weapons all over the persons of Prakash Chawan who shouted loudly for held and tried to run away in the direction of Bengal Chemicals but he collapsed on the ground after moving about 100 feet away in front of Daruwala Bungalow.

Mohan Devnath Chobey, however, caught hold of your associate, Namdeo Ganpat Ghadge who resisted and threw away the chopper. At this juncture, Jacking and Narsayya also rushed forward and helped Mohan Chobey in overpowering your said associate. However, your associates, Shri Thakur picked up the chopper thrown away by your associate, Namdeo Ghadge and ran away from the place along with you and your other associate. Your associate, Namdeo Ghadge was brought to Dadar Police Station by Mohan Chobey and another.

Injured Prakash Chawan succumbed to his injuries before admission in the K.E.M. Hospital.

Inspection was carried out at the scene of offence by the police and in the presence of two independent witnesses, three pairs of chappals worn by you and your associates at the time of offence were seized under a panchanama.

In this connection, on a complaint of Mohan Chobey, Dadar Police Station registered C.R. No. 285/90 against Bhai Thakur and three other for offence under Sec. 302/34, I.P.C.

You were arrested in this case on 12-5-1990 and your statement was recorded by the police wherein you have inter alia stated that you belong to Rama Naik gang and were involved in an assault case (assault on Vinayak Vaygaonkar) in the 2nd week of April 1989, (2) in a murder case (Murder of three relatives of Hiraman Kotekar, a gangster belonging to Amar Naik Gang) in the 2nd or 3rd week of May, 1989 and (3) assault case (assault on Ravindra Mayekar) in the 1st April, 1990 and you were arrested and bailed out in all the above cases. You have further stated that the advocate’s fees and all other court expenses were carried out by Rama Naik and/or Arun Gawali. You further admitted having committed the murder of Prakash Chawan in company of your associates, Pradeep Thakur alias Bhai Thakur and others.

Your associates, Pradeep Thakur and Vilas Shyam Patil were also arrested in the case and their statements recorded. In his statement, your associate, Pradeep Thakur has stated that his relationship with the deceased Prakash Chawan was spoiled due to the objection raised by Prakash Chawan over his (your associate, Pradeep Thakur’s) erection of hutment at Ladiwala Chawl, Old Prabhadevi Road, Bombay and admitted having committed murder of Prakash after taking permission of Pappa Gawali who was murdered at Mahim some days thereafter.

In the identification parade held by the Special Executive Magistrate, Shri Moreshwar Thakur on 14th May, 1990, you and your associate, Vilas Shyam Patil were identified by the complainant and witnesses as two assailants of Prakash Chawan.

The chappals seized from the scene of offence were compared with those seized from you and your associates by Shri Vasant Kashinath Bhagyavan, a footwear dealer, and found fitting to your and your associates feet on 13-5-1990.

On 12-5-1990 you and your two associates, Pradeep alias Bhai Thakur and Vilas Patil were arrested. In the Presence of two independent witnesses, the personal search of you and your associates was carried out and knife used in the commission of offence, along with clothes worn by you at the time of commission of offence and chappal were seized from you under a panchanama.

on 13th May, 1990 you were produced for remand before the Ld. Additional Chief Metropolitan Magistrate, 5th Court, Dadar, Bombay, who ordered you to be remanded into police custody till 25-5-1990 and thereafter, your remand was further extended from time to time.

On 17th August, 1990, on an application made on your behalf, the Additional Chief Metropolitan Magistrate, 5th Court, Dadar, ordered you to be released on bail of Rs. 10,000/- of one solvent surety or on depositing Rs. 5,000/- as cash bail amount.

You have availed yourself of the above bail facility on 17-8-1990 itself.”

After going through the aforesaid incidents as mentioned in the show cause notice, we are of the opinion that these incidents are not stray individual incidents but from the manner in which the attack is described in the said instances, it appears that the petitioner intends to create an atmosphere of terror about him in the said localities. It is pertinent to note that after the incident of 1-4-1990 the petitioner was released on bail on 3-4-1990 and thereafter he along with his associates have committed murder of one Prakash Chawan on 10-5-1990. Thereafter the petitioner was again arrested on 12-5-1990 in respect of the aforesaid murder and during the course of investigation the petitioner gave his statement before the police wherein he has stated that he belongs to the gang of Rama Naik and that he made certain attacks along with his associates in the gang war. After going through the aforesaid incidents and the said statement of the petitioner, in our opinion there was material before the detaining authority to come to its subjective satisfaction that the activities of the petitioner are such that peace loving and law-abiding citizens in the concerned localities were experiences a sense of insecurity and were living under a constant shadow of fear and that such activities of the petitioner are prejudicial to the maintenance of public order in the said localities. Therefore, we reject the contention of the petitioner that the instances relied on by the respondents in the grounds of detention are stray instances of law and order and were not relating to public order.

32. Shri Thakare, learned Counsel appearing on behalf of the petitioner, has also contended that the order of revocation passed by respondent No. 2 on 11-1-1991 is deemed to have been passed under Section 21 of the General Clauses Act of 1987. To lend support to his argument that the said order is passed under Section 21 of the General Clauses Act, Shri Thakare submitted that under Section 14 of the N.S.A. the State Government is not empowered to revoke the order of detention and such power rests only with the Central Government. Shri Thakare further contended that in view of this legal position, the order of revocation dated 11-1-1991 passed by respondent No. 2 is an order deemed to have been passed by respondent No. 2 under Section 21 of the General Clauses Act and, therefore, the same cannot be revoked under S. 14(1) of the N.S.A. The petitioner contended that it is only when the order of revocation comes within the ambit of Section 14(1) of the N.S.A. that successive order of detention can be passed under Sec. 14(2). To support the aforesaid contention Shri Thakare relied upon the decision of this Court in the case of Amritlal Shah v. State of Maharashtra, 1986 Cri LJ 1587. It is true that in the aforesaid decision, there are observations of the Division Bench of this High Court to the effect that if the State Government has passed the original order of detention under Section 11 of the COFEPOSA Act it could only be revoked by the Central Government and not by the State Government. Since Section 11 of the COFEPOSA Act and Section 14 of the N.S.A. are parimateria same, it is argued on behalf of the petitioner that the order of revocation dated 11-1-1991 passed by respondent No. 2 shall be deemed to have been passed under section 21 of the General Clauses Act as the same could not have been passed under Section 14(1) of the N.S.A. in view of the observations of the Division Bench of this Court.

33. At the outset we may mention that this specific point is not taken by the petitioner in his petition, but since it is a pure point of law, we allowed the learned Counsel on behalf of the petitioner to argue the same. It is pertinent to note that in the case decided by this High Court it was the case of the detaining authority that the order in that case was issued under Section 21 of the General Clauses Act. Here in this case, it is the case of the respondents that the earlier order of detention was revoked not under Section 21 of the General Clauses Act, but under Section 14(1) of the N.S.A. Further subsequent to the decision of the Division Bench referred to above, the Supreme Court by its decision in the case of State of Maharashtra v. Sushila Mafatlal Shah, , in para 29 of its Judgment, observed that under Section 11 of the COFEPOSA Act confers powers of revocation only on the State Government and the Central Government and does not envisage or contemplate an officer of the State Government or the Central Government passing an order of detention also exercising the powers of revocation. In the light of this authority of the Supreme Court, now it cannot be argued that under Section 14 of the N.S.A. when the order of detention was passed by the State Government, only the Central Government has powers to revoke the same. In view of this decision of the Supreme Court, in our opinion there is no merit in the contention raised by Shri Thakare on behalf of the petitioner that the order dated 11-1-1991 should be deemed to have been passed by the State Government under Section 21 of the General Clauses Act and not under Section 14(1) of N.S.A. Per Sindhakar, J. :

34. While agreeing with by learned brother, I would like to deal with two contentions raised by Mr. Thakare in support of his petition

35. One of the contentions of Mr. Thakare is that the order of detention dated 14th January, 1991 is vitiated by reason of the fact that the opinion of the Advisory Board was not sought within the stipulated period of three months from the date of detention and according to him, this date of detention should be taken to be 17th October, 1990 when he came to be placed behind the bar by virtue of the earlier order of detention dated 17th August, 1990 and which was later revoked. In support of this proposition, he had relied upon a decision of the Supreme Court in the case of Abdul Latif v. B. K. Jha . In para 3 of the judgment, it is observed : “The real question for consideration is whether a law may be made providing for successive orders for detention in manner as to render the protection of Art. 22(4) of the Constitution ineffective ? For example, can a fresh order of detention be made every 89th day making it unnecessary to obtain the report of the Advisory Board within three months of the detention ? That is what it will amount to if the submission of the learned Counsel for the State is accepted. It, therefore, becomes imperative to read down S. 15 of the Gujarat Prevention of Anti-Social Activities Act, 1985 which provides for the making of successive orders of detention so as to bring it in conformity with Art. 22(4) of the Constitution. If there is to be a collision between Art. 22(4) of the Constitution and Sec. 15 of the Act, S. 15 has to yield. But by reading down the provision, the collision may be avoided and Sec. 15 may be sustained. So, avoiding the collision course, we hold that if the report of the Advisory Board is not made within three months of the date of detention, the detention becomes illegal notwithstanding that it is within three months from the date of the second order of detention.”

It is true that the Courts have frowned upon successive orders of detention and more so when attempts are made to circumvent the statutory provisions and making the constitutional safeguards illusory. What happened in the case under report is that when the earlier order of detention was passed on 23rd June, 1986 under the Gujarat Prevention of Anti-Social Activities Act, 1985, there was no Advisory Board constituted by the State Government as envisaged. No reference, therefore, could have been made to the Advisory Board. The petitioner in that case was entitled to be released on 14th July, 1986 as no report within the period of three weeks stipulated by Section 11 of the Act was made. However, the State has to continue the detention till 7th August, 1986 on which date the order dated 23rd June, 1986 was revoked, and a fresh order of detention was made on the same facts on the same day. There also the order of detention dated 23rd June, 1986 was under challenged and on the revocation of that order by the State Government, the writ petition is dismissed on the ground that it had became infructuous. The Advisory Board’s opinion was sought for the subsequent order of detention dated 7th August, 1986 and it was contended that the statutory as well as constitutional requirement was fulfilled. Rejecting that contention on behalf of the State, the Supreme Court made the observations quoted above. Here, in this case, with respect, the facts are distinct. After the passing of an order of detention on 17th August, 1990, reference to the Advisory Board was made and opinion sought which was received within the stipulated period of three months and the detention beyond three months continued. While the said detention was continuing, the Supreme Court delivered its judgment in Abhay Shridhar Ambulkar’s case, . The State Government, therefore, under the statutory powers under Section 14(1) of the National Security Act revoked that order of detention on 11th January, 1991 and clamped another order of detention on 14th January, 1991. For this order also, the opinion of the Advisory Board was sought and obtained and these facts are not in dispute. The only challenge that has been posed by the learned Counsel for the petitioner relying upon the decision of the Supreme Court in Abdul Latif’s case (1987 Cri LJ 700) is that since the second opinion was sought and obtained beyond the stipulated period of three weeks and three months from the date of the detention under the earlier order, it renders the continued detention illegal. It is in the facts and circumstances of the case, I find that the decision in the authority cited on behalf of the petitioner is not of assistance to him. Here there is no attempt to circumvent the provisions of the National Security Act. Here there is no attempt to dilute the constitutional guarantee given to the detenu under Article 22(4) of the Constitution of India and he was informed by the detaining authority that the report to the Advisory Board is being made and that he had a right to make representation to the Advisory Board against the order of detention and that is to be found in the order of detention and on which point there is no dispute. This ground of challenge, therefore, in my opinion, is not sustainable.

36. If the interpretation placed by Mr. Thakare on the provisions of Sec. 14(1) of the Act is accepted and if the revocation order can be made at any time then the power to revoke the order of detention at any time as mentioned in sub-section (1) of Section 14 would be rendered ineffective. In that event, the revoking authority will have to act within three weeks of the date of earlier detention and within three months the Advisory Board’s opinion will have to be obtained which would become impossible if the order of detention is revoked beyond the period of three weeks and three months as the case may be. In such a case, it would not be possible to obtain the opinion of the Advisory Board within three weeks from the date of first detention if revocation is done beyond that period.

37. It was contended on behalf of the petitioner by Mr. Thakare that the subsequent order of detention dated 14th January, 1991 could not have been issued in this case again because to enable the detaining authority to invoke the provisions of Section 14(2) of the National Security Act, the earlier order of revocation must be under Section 14(1) of the said Act. His submission is that this order of revocation dated 11th January, 1991 could not be construed as one under Section 14(1) of the Act. In the first instance, it has been stated by the petitioner himself in his petition that this was an order passed under Section 14(1) of the National Security Act and that is to be found in para 4. It is not disputed by Mr. Thakare that it is so in his pleadings, but what he contends is that he should be allowed to urge that this order of revocation should not be construed as an order under Section 14(1) of the Act. In this connection, he submits that the earlier order of detention dated 17th August, 1990 was passed by respondent No. 1 the Commissioner of Police in exercise of the powers derived by him under sub-section (3) of Section 3 of the National Security Act. He submits that the same had received the approval of the State Government and has been revoked by the State Government on 11th January, 1991. According to him, the State Government is not competent to revoke the order under Section 14(1). Section 14(1) reads thus : “14. Revocation of detention orders – (1) Without prejudice to the provisions of Section 21 of the General Clauses Act, 1897 (10 of 1897), a detention order may, at any time, be revoked or modified, –

(a) notwithstanding that the order has been made by an officer mentioned in sub-section (3) of Section 3, by the State Government to which that officer is subordinate or by the Central Government;

(b) notwithstanding that the order has been made by a State Government, by the Central Government.”

He submits that this order which has been approved by the State Government, should be deemed to have been passed by the State Government and, therefore, the power of revocation vests only in the Central Government. It is difficult to accept this submission made on the interpretation of Section 14(1). On a plain reading of Sec. 14(1), clause (a), it is evident that the power to revoke the order issued by an officer mentioned in sub-section (3) of Section 3 vests in the State Government to which that officer is subordinate and also in the central Government. If one is called upon to construe clause (a) as contended by Mr. Thakare, it would make the insertion of clause (a) redundant because clause (b) clearly mentions the powers of the Central Government to revoke the order made by the State Government.

38. Mr. Thakare, however, relied upon a Division Bench decision of this Court in the case of Amritlal Shah v. State of Maharashtra in 1986 Cri LJ 1587. In para 4 this is what the Court observed :

“Before we proceed to consider the arguments of Mr. Kotwal appearing in support of Criminal Writ Petition No. 26 of 1986, we should mention that by a judgment dated 7th January, 1986 in Criminal Writ Petn. No. 683 of 1983 this Bench held that the order of revocation passed by the Government of Maharashtra on 28th November, 1985 was an order passed under S. 21 of the General Clauses Act and not under S. 11(1) of the COFEPOSA Act. We held so because under the COFEPOSA Act an order passed by the State Government could not be revoked by the State Government, it could only be revoked by the Central Government. But S. 11 of the COFEPOSA Act itself retains intact the powers vested in any authority under S. 21 of the General Clauses Act. Since the validity of the order of revocation was involved and since it was found that the said order could not have been passed under S. 11 of the COFEPOSA Act, the learned Counsel appearing for the State advanced an argument, which argument commended itself to us, that if the order is made by mentioning a wrong provision of law it could still be held to be valid if it could be supported by reference to the correct provision of law. We accepted this argument in the aforesaid judgment and it was held as follows :-

“We accept the argument of Mr. Gursahani and uphold the validity of this order as having been made under S. 21 of the General Clauses Act.” We must, therefore, proceed on the basis that the order of revocation which has been passed in the case of the detenu in Criminal Writ Petition No. 26 of 1986 is an order passed under Sec. 21 of the General Clauses Act and not under S. 11(1) of the COFEPOSA Act. The question now is whether the Government of Maharashtra which has revoked the order of detention under S. 21 of the General Clauses Act can proceed to pass a fresh order of detention by virtue of the provisions contained in sub-sec. (2) of S. 11 of the COFEPOSA Act ….”

39. In this judgment, the learned Judges have referred to their earlier decision in Criminal Writ Petition No. 683 of 1985 and as per the reasons stated therein proceeded to dispose of the writ petition in Amritlal Shah’s case (1986 Cri LJ 1587) (Bombay) (supra). They have considered the relevant provisions of Section 11 of the COFEPOSA Act which reads thus :

“11(1) Without prejudice to the provisions of Section 22 of the General Clauses Act, 1897, a detention order may, at any time, be revoked or modified –

a) notwithstanding that the order has been made by an officer of a State Government, by that State Government or by the Central Government;

b) notwithstanding that the order has been made by an officer of the Central Government or by a State Government, by the Central Government.

(2) The revocation of a detention order shall not bar the making of another detention order under Section 3 against the same person.”

The reading of this section clearly shows that if the detention order is passed by the State Government it is only the Central Government which can revoke that order of detention and it has been further observed :

“If, however, the order of detention had been made by an officer of the State Government then, of course, that order could have been revoked by the State Government or by the Central Government.” Undisputably the order in that case was passed by the State Government and, therefore, it could have been revoked only by the Central Government. There is a difference in the phrasiology of Section 14 of the National Security Act and Section 11 of the COFEPOSA Act and clause (a) specifically stated notwithstanding that the order has been made by an officer mentioned in sub-section (3) of Section 3, by the State Government to which that officer is subordinate or by the Central Government”. This clearly shows that the order which is passed by an officer under sub-section (3) of Section 3 which officer in this case is the Commissioner of Police, then it could be revoked by the State Government as well as by the Central Government. To say that it was an order in fact deemed to have been passed by the State Government would, in my opinion, be not correct. I am, therefore, unable to accept the contention of the learned Advocate for the petitioner that this revocation order being not one under Section 14(1) of the National Security Act, the order of fresh detention under Section 14(2) of the Act could have been passed.

P.C. :

In view of the aforesaid findings, the writ petition filed by the petitioner fails and, therefore, is dismissed. Rule discharged.

40. Petition dismissed.

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