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Madan Tiwari Vs. R.K. Shukla, Dy. Collector and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1976CriLJ271
AppellantMadan Tiwari
RespondentR.K. Shukla, Dy. Collector and anr.
Cases Referred(Lai Shyam Shah v. The District Magistrate
Excerpt:
.....of the maintenance of internal security (amendment) ordinance, 1975, the central government or the state government or, as the case may be, the officer making the order of detention shall consider whether the detention of such person under this act is necessary for dealing effectively with the emergency and if, on such consideration, the central government or, as the case may be, the state goverment or the officer is satisfied that it is necessary to detain such person for effectively dealing with the emergency that government or officer may make a declaration to that effect and communicate a copy of the declaration to the person concerned. 10. if the construction suggested were to be accepted, the very purpose of promulgation of the two ordinances would be defeated, section 2 of..........the petitioners, their detention beyond a period o! twelve days from the order of detention by the state government as envisaged by sub-section (3) of section 3, was illegal,3. in our opinion, the petitioners are not right in saying that there are two courses open to the detaining authority after the promulgation of the ordinance. the combined reading of the two ordinances, namely, ordinance nos. 4 and 7 of 1975, is that the detaining authority must now comply with both the conditions (i) to make an order directing the detention of any person under section 3(l)(a)(ii) of the act, if satisfied that the detention of such person is necessary, as here, with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, and (ii) when making an order of.....
Judgment:

A.P. Sen, J.

1. This Order shall also govern the disposal of Miscellaneous Petition No. 728 of 1975 (Shivkumar Baipai v. The District Magistrate, Rajnandgaon and Miscellaneous Petition No. 729 of 1975 (Lai Shyam Shah v. The District Magistrate, Rajnandgaon).

These three petitions by the petitioners who have been detained by orders of the District Magistrate, Rajanandgaon, raise a common question and, therefore, they are disposed of by this common order.

2. The short point raised by the petitioners is that after the promulgation of the Maintenance of Internal Security (Amendment) Ordinance, 1975 (No. 4 of 1975) by the President on 29th June, 1975, two courses were open to the detaining authority (i) to exercise the power of detention conferred by Sub-section (2) of Section 3 of the Act, or (ii) to make a declaration in terms of subsection (3) of the newly inserted Section 16A. They further contend that the declaration thereunder, has to be made at the time of the making of the order of detention. Upon that basis, it is said, that, if after the promulgation of the Ordinance on 29th June 1975, the detaining authority chooses to exercise the power of detention under Section 3 (1) (a) (ii) of the Act, and not that of making a declaration under Section 16A(3), the provisions of Sections 8 to 12 of the Act must apply in such case, and these provisions not having been followed in the case of the petitioners, their detention beyond a period o! twelve days from the order of detention by the State Government as envisaged by Sub-section (3) of Section 3, was illegal,

3. In our opinion, the petitioners are not right in saying that there are two courses open to the detaining authority after the promulgation of the Ordinance. The combined reading of the two Ordinances, namely, Ordinance Nos. 4 and 7 of 1975, is that the detaining authority must now comply with both the conditions (i) to make an order directing the detention of any person under Section 3(l)(a)(ii) of the Act, if satisfied that the detention of such person is necessary, as here, with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, and (ii) when making an order of detention under the Act i. e., under Section 3(l)(a)(ii), as in these cases, to consider whether the detention of such person under this Act is necessary for dealing effectively with the Emergency and if, on such consideration, so satisfied, to make a declaration to that effect as required under Sub-section (3) of Section 16A,

4. That construction of ours is borne out by the provisions of Section 2 of Ordinance No. 4 of 1975 which reads:

2. Act 26 of 1971 to be temporarily amended.- During the period of operation of this Ordinance, the Maintenance of Internal Security Act, 1971 (hereinafter referred to as the principal Act), shall have effect subject to the amendments specified in Sections 3, 4 and 5.

5. Section 18A(3), which has a material bearing in these cases as inserted by Section 5 of the Ordinance, reads as follows:

16A. (3) When making an order of detention under this Act, against any person after the commencement of the Maintenance of Internal Security (Amendment) Ordinance, 1975, the Central Government or the State Government or, as the case may be, the officer making the order of detention shall consider whether the detention of such person under this Act is necessary for dealing effectively with the emergency and if, on such consideration, the Central Government or, as the case may be, the State Goverment or the officer is satisfied that it is necessary to detain such person for effectively dealing with the emergency that Government or officer may make a declaration to that effect and communicate a copy of the declaration to the person concerned.Provided that where such declaration is made by an officer, it shall be reviewed by the State Government to which such officer is subordinate within fifteen days from the date of making of the declaration and such declaration shall cease to have effect unless it is confirmed by the State Government, after such review, within the said period of fifteen days.

6. Once the two conditions are fulfilled, i. e,, (i) there is an order of detention under Section 3 of the Act, and (ii) the making of the requisite declaration under Section 16A(3), inserted by the Ordinance No. 4 of 1975, then by reason of Sub-section (6)(b) of Section 16A of the Act, it is no longer necessary to disclose the grounds on which the order has been made during the period specified therein. That provision runs thus:

(6) It shall not be necessary:(b) to disclose to any persop detained under a detention order to which the provisions of Sub-section (3) apply, the grounds on which the order has been made during the period the declaration made in respect of such person under that sub-section is in force.

7. The Act was further amended by Ordinance No. 7 of 1975 promulgated by the President on 15th July, 1975. Section 5(c) of the Ordinance which is given a retrospective effect, by Sub-section (2) of Section I w, e. f., 29th June 1975, reads:

5. (c).- for Sub-sections (6) and (7) the following sub-sections shall be substituted, namely:. .... .... (7) In the case of every person detained under a detention order to which the provisions of Sub-section (3) apply being a person in respect of whom a declaration has been made under that sub-section,

(i) Section 3 shall apply subject to the modification, that for Sub-sections (3) and (4) thereof, the following sub-section shall be substituted, namely:

(3) When any order of detention is made by a State Government or by an officer subordinate to it, the State Government shall, within twenty days, forward to the Central Government a report in respect of the order;(ii) Sections 8 to 12 shall not apply; and

(iii) Section 13 shall apply subject to the modification that the words and figures 'which has been confirmed under Section 12' shall be omitted.

8. In the instant cases, it is no doubt true that the orders of detention under S. 3 (l)(a)(ii) of the petitioners and the requisite declarations under Sec, 16A (3) of the Act in regard to them, were not simultaneously made, but that does not necessarily imply that the provisions of Sections 8 to 12 of the Act would be attracted in their case.

9. The meaning of the word 'when' as given in the Shorter Oxford Dictionary, 3rd Edn., p. 2413 is

As a simple relative: At which time, on which occasion, and then. Sometimes implying suddenness: and just then, and at that moment.

Sub-section (3) of Section 16A of the Act does not specify a period of time within which a declaration has to be made by the detaining authority, on his making of an order of detention. The word 'when', occurring in Sub-section (3) must, in the con-.text in which it appears, mean 'simultane-'ously, or soon thereafter'. In the present cases, the orders of detention were passed on 3rd or 4th July 1975, while the declarations were made on 15th July 1975, which were duly confirmed by the State Government on 18th July 1975 under the proviso to Sub-section (3). Even if the word 'when' is to be understood as meaning 'simultaneously', the delay in making the declaration was mere an irregularity, and not a defect of substance so as to invalidate the orders of detention.

10. If the construction suggested were to be accepted, the very purpose of promulgation of the two Ordinances would be defeated, Section 2 of Ordinance No. 4 of 1975 clearly provides that the Maintenance of Internal Security Act, 1971, shall have effect subject to the amendments specified in Sections 3, 4 and 5 of the Ordinance, during the period of its operation. The effect of Ordinance No. 7 of 1975 is that for Sub-sections (6) and (7) of Section 16A, new Sub-sections (6) and (7) have been inserted by Section 5 thereof, and they are given a retrospective effect w. e. f., 29th Tune 1975. Under the present state of law, therefore, once an order of detention is made under Section 3(l)(a)(ii), followed by a declaration under Section 16A(3), there is no need to comply with the requirements of sections 8 to 12 of the Act.

11. The petitions must, therefore, tail and are dismissed.


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