STATE OF MAHARASHTRA AND ORS.versusSANTOSH SHANKAR ACHARYA

                  STATE OF MAHARASHTRA AND ORS.                                     A
                                       v.
                     SANTOSH SHANKAR ACHARYA

                              AUGUST 1, 2000

               [G.B. PATTANAIK AND U.C. BANERJEE, JJ.]                              B

      Criminal Law :

      Maharashtra Prevention ()f Dangerous Activities of Slumlords, Boot-
leggers, Drugs Offenders and Dangerous Persons Act, 1981 :
                                                                                    c
       Sections 3(2) and 8( 1)-Preventive Detention-Right to make represen-
tation-To detaining authority-Non-communication of the same to detenu-
Effect ()(-Held, amounts to infraction of the detenu '.s rights under Art. 22(5)-
Hence, vitiates detention order-Constitution of India, 1950, Art. 22(5)-
Conservation of Foreign Exchange and Prevention ()f Smuggling Activities Act,
                                                                                    D
1974.

       Interpretation of Statutes :

       Redundancy-Rule of-Held, every part ()fa statute should be given
~{feet to-A construction, which attributes redundancy to the legislature, can-
not be accepted .                                                                   E
      Maxims:

      "Ex majori cautela"-Applicability (){.

       The respondent-detenu was detained by an officer empowered by the
State Government under Section 3(2) of the Maharashtra Prevention of                F
Dangerous Activities of Slumlords, Boot-leggers, Drugs Offenders and
Dangerous Persons Act, 1981. While communicating the detenu the grounds
of detention, it was not indicated therein that he had a right to make a
representation to the Detaining Authority, though in the said communica-
tion it was mentioned that the detenu could make a representation to the            G
State Government as provided under Section 8(1) of the Act..

      The Full Bench of the High Court came to the conclusion that an
order issued untler Section 3(2) of the Act could not remain valid for more
than 12 days unless the same was approved by the State Government as
provided under Section 3(3) of the Act. It was further held that until the          H
                                      67
    68                 SUPREME COURT REPORTS              [2000] SUPP. 2 S.C.R.
A   order was approved by the State Government, the Detaining Authority
    retained the power of entertaining a representation and contd annul, re-
    voke or modify the same as provided under Section 14(1) of the Act read
    with Section 21 of the Bombay General Clauses Act. It was further held
    that failure on the part of the Detaining Authority in a case where order of
    detention was issued under Section 3(3) to the detenu that he had a right to
B
    make a representation constituted an infraction of the rights guaranteed
    under Article 22( 5), and as such, the detention became invalid on that
    score. Hence this appeal.

          Dismissing the appeals, this Court
c         HELD : 1. The only logical and harmonious construction of the
    provisions would be that in a case where an order of detention is issued by
    an officer under Section 3(2) of the Maharashtra Prevention of Danger-
    ous Activities of Slumlords, Boot-leggers, Drugs Offenders and Danger·
    ous Persons Act, 1981, notwithstanding the fact that he is required to
D   forthwith report the factum of detention together with the grounds and
    materials to the State Government and notwithstanding the fact that the
    Act itself specifically provides for making a representation to the State
    Government under Section 8(1), the said detaining authority continues to
    be the detaining authority until the order of detention issued by him is
    a1>proved by the State Government within a period of 12 days from the
E
    date of issuance of the detention order. Consequently, until the said
    detention order is approved by the State Government the detaining au-
    thority can entertain a representation from a detenu and in exercise of his
    power under the provisions of Section 21 of the Bombay General Clauses
    Act could amend, vary or rescind the order, as is provided under Section
F   14 of the Act. Such a construction would give a full play to the provisions
    of Section 8(1) as well as Section 14 and also Section 3 of the Act. This
    being the position, non-communication of the fact to the detenu that he
    could make a representation to the detaining authority so long as the order
    of detention has not been approved by the State of Government in a case
G   where an order of detention is issued by an officer other than the State
    Government under Section .3(2) of the Act would constitute an infraction
    of a valuable right of the detenu under Article 22(5) of the Constitution.
    [74-G-H; 75-A-D]

          Kwnlesh Kumar ls/nvanlas Patel v. Union of India, [1995] 4 SCC 51,
H   followed.
                  STATE v. S.S. ACHARYA [PATTANAIK, J.]                     69
       Raj Kishore Prasad v. State of Bihar, [1982] 3 SCC 10, relied on.           A

      State ()f Maharashtra v. Sushi/a Mafatlal Shah, [1988] 4 SCC 490,
referred to.

       Veeramani v. State ()f Tamil Nadu, [1994] 2 SCC 337, held inapplica-
hie.                                                                               B
       2.1. It is too well known a principle of construction of statutes that
the legislature engrafted every ,art of a statute for a purpose and the
legislative intention is that every part of the statute should be given effect
to. The legislature is deemed not to waste its words or to say anything in
vain and a construction, which attributes redundancy to the legislature,           C
will not be accepted except for compelling reasons. [74-E; F]

      2.2. The principle 'ex m{l;ori cautela' is not applicable to Section 14 of
the Act and the same cannot be held to be tautologous inasmuch as it has
never been shown as to what was the necessity for the legislature to protect
the power under Section 21 of the Bombay General Clauses Act, to an                D
order of detention made under the Act. [74-F; G]

      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 596
of 2000.

      From the Judgment and Order dated 17.4.2000 of the Bombay High               E
Court in Crl.W.P. No. 1737 of 1999.

                                    WITH

       Criminal Appeal Nos. 597-98, 599-604, 605-606, 607 and 608 of 2000.

       S.V. Deshpande and Tahil Ramani for the Appellants.
                                                                                   F

     Sushi! Karanjkar, G.B. Sathe, Tripurari Ray, Maqsood Khan, Sanjay R.
Hegde, S.M. Jadhav and Vishwajit Singh for the Respondents.

       The Judgment of the Court was delivered by
                                                                                   G
       PATTANAIK, J. Leave granted.

       All these appeals have been filed by the State of Maharashtra assailing
the correctness of the decision of the Full Bench of Bombay High Court, Bench
at Nagpur, answering the question referred to, in favour of the detenu and
against the State. The question that had been referred to the Full Bench for       H
    70                   SUPREME COURT REPORTS                [2000] SUPP. 2 S.C.R.
A   being answered is, whether in case of an order of detention by an officer under
    sub-section (2) of Section 3 of Maharashtra Prevention of Dangerous Activities
    of Slumlords, Boot-leggers, Drugs Offenders and Dangerous Persons Act,
    1981, (hereinafter referred to as "Maharashtra Act"), non communication to the
    detenu that he has a right of making a representation to the Detaining Authority
    constitutes an infraction of a valuable right of the detenu under Article 23(5)
B
    of the Constitution, and as such, vitiates the order of detention. There is no
    dispute that in all these cases the order of detention had been passed not by the
    State Government under Section 3(1) of the Maharashtra Act but by the
    concerned officer empowered by the State Government under sub-section (2)
    of Section 3 of the Act. It is also not disputed that while communicating the
C   detenu the grounds of detention it has not been indicated therein that he has
    a right to make a representation to the Detaining Authority, though in the said
    communication it was mentioned that the detenu could make a representation
    to the State Government as provided under Section 8(1) of the Maharashtra
    Act. The Division Bench of Bombay High Court on this aspect had taken
D   inconsistent views and, therefore, the matter had been referred to the Full
    Bench. The Full Bench relying upon the Constitution Bench decision of this
    Court in Kamlesh Kumar /shwardas Patel v. Union of India, [ 1995] 4 Supreme
    Court Cases-51, and on thorough analysis of the different provisions of the          (


    Maharashtra Act came to the conclusion that an order issued under sub-section
    (2) of Section 3 of the said -~ct cannot remain valid for more than 12 days
E   unless the same is approved by the State Government as provided under sub-
    section (3) of Section 3 of the said Act. It was further held that until the order
    is approved by the State Government in exercise of its power under sub-section
    (3) of Section 3, the Detaining Authority who had issued the order of detention
    under sub-section (2) retains the power of entertaining a representation and
F   annul, revoke or modify the same as provided under Section 14(1) of the Act
    read with Section 21 of the Bombay General Clauses Act. It has further been
     held that failure on the part of the Detaining Authority in a case where order
    of detention is issued under sub-section (2) of Section 3 to the detenu that he
     has a right to make a representation constitutes an infraction of the rights
    guaranteed under Article 22(5), and as such, the detention becomes invalid on
G    that score. This conclusion is based upon the ratio of the Constitution Bench
    decision of this Court in Kamlesh Kumar's case (supra) even though in Kamlesh
     Kumar's case the Court was considering a case of detention under the provi-
     sions of Conservation of Foreign Exchange and Prevention of Smuggling
     Activities Act (for short 'COFEPOSA'). Following the opinion on the ques-
H    tion of law referred, the Division Bench of the High Court having set aside the
                       STATE v. S.S. ACHARYA [PATIANA!K, J.]                       71
    order of detention the State Government is in appeal before us.                       A

J          Mr. Deshpande, the learned counsel appearing for the State of Maharashtra
    and Mrs. Ramani, learned counsel appearing for the State Government in some
    of these appeals vehemently contended that the decision of Kamlesh Kumar's
    case (supra) will have no application inasmuch as the provisions of COFEPOSA
    are entirely different from the provisions of Maharashtra Act, with which we          B
    are concerned in the present appeals and the High Court, therefore, committed
    error in following Kamlesh Kumar's case (supra) and answering the point of
    reference. According to Mr. Deshpande the powers under sub-section (2) of
    Section 3 being a delegated power, the delegatee could not exercise any
    function once he uses power provided under sub-section (2) and passes an
    order of detention. The learned counsel contends that in view of language of
                                                                                          c
    sub-section (3) of Section 3 the officer who issues an order of detention under
    sub-section (2) being required to forthwith report the fact of detention to the
    State Government together with the grounds on which the order has been made,
    the State Government becomes the detaining authority thereafter, and there-
    fore, it is not necessary for him to communicate to the detenu that he could          D
    make a representation to the detaining authority nor does the detaining author-
    ity possesses such power. It is the contention of the learned counsel for the State
    that in view of specific provision in sub-section (1) of Section 8, the earliest
    opportunity of representation could be made available to the detenu to make
    a representation against the order of detention to the State Government by
                                                                                          E
    implication, the detaining authority does not possess any such power, and as
    such, the High Court committed error in coming to the conclusion that the
    detaining authority possess the power of rescinding an order of detention issued
    until the said order is approved by the State Government within a period of 12
    days from the date of issuance of an order of detention. According to the
    learned counsel the provisions of Maharashtra Act stand on a different footing        F
    than the provisions of COFEPOSAand, therefore, the ratio in Kamlesh Kumar's
    case (supra) will have no application at all.

           The learned counsel appearing for the respondents-detenues on the other
    hand contended, that a plain reading of Section 14, engrafting the provisions
    of Section 21 of General Clauses Act, into it making explicitly clear that the        G
    legislatures purposely retained the power of the officer who issues an order of
    detention to deal with the same in terms of Section 21 of the Bombay General
    Clauses Act, and that being the position, non-communication of the fact that
    the detenu could make a representation to the detaining authority so long as
    the order of detention has not been approved by the State Government consti-          H
    72                   SUPREME COURT REPORTS                  [2000] SUPP. 2 S.C.R.
A   lutes an infraction of valuable right of detenu under Article 22(5) and, there-
    fore, Full Bench of the High Court was fully justified in answering the refer-
    ence made to it.
                                                                                             [
           An analysis of the provisions of the Maharashtra Act indicates that
    Section 3 empowered the State Government to issue an order of detention
B   under sub-section (I) and the District Magistrate or Commissioner of Police on
    being authorised by the State Government could issue an order of detention
    under sub-section(2). When an officer exercises power and issues orders of
    detention under sub-section (2) then he is duty bound to report forthwith the
    fact of detention and the grounds on which the order of detention is made and/
    or other particulars to the State Government. On receipt of the report, the
c   grounds and the particulars from the concerned officer the State Government
    is required to approve the order of detention within 12 days, and if it is not
    approved within 12 days then it automatically lapses. Section 3 of the
    Maharashtra Act is quoted herein below in extenso for better appreciation of
    the analysis we have thus made:-
D
             "Section 3. (I) The Stale 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.

E            (2) If, having regard :o 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 pro-
F            vided in sub-section (I), exercise the powers conferred by the said sub-
             section:

                 Provided that the period specified in the order made by the State
             Government under this sub-section shall not, in the first instance,
             exceed three months, but the State Government may, if satisfied as
G            aforesaid that it is necessary so to do, amend such order to extend such
             period from time to time by any period not exceeding three months at
             any one time.

             (3) When any order is made under this section by an officer mentioned
             in sub-section (2), he shall forthwith report the fact to the State
H
                   STATE v. S.S. ACHARYA [PATTANAIK, J.]                       73
         Government, together with the grounds on which the order has been            A
         made and such 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."

Section 8 specifically provides that a detenu must be communicated the grounds        B
on which the order of detention has been made as soon as may be, but not later
than 5 days from the date of detention. This mandatory obligation is both on
the authority who passes an order of detention either under sub-section ( 1) or
under sub-section (2). In other words, if the State Government issues an order
of detention under sub-section (1), or if the officer empowered issues an order       C
of detention under sub-section (2) then the same must be communicated to the
detenu not later than 5 days from the date of detention. It is no doubt true that
in latter part of sub-section ( 1) of Section 8 it has been categorically mentioned
that an earliest opportunity of making a representation against the order to the
State Government should be afforded. But that does not make the State Gov-
ernment the detaining authority as soon as the factum of detention is commu-          D
nicated by the person concerned exercising power under sub-section (2) as
provided under sub-section (3) thereof nor does it take away the power of
entertaining a representation from a detenu so long as the order of detention
has not been approved by the State Government. Section 8( 1) of Maharashtra
Act is quoted herein below in extenso:-                                               E
         "Section8( 1) : When a person is detained in pursuance of a detention
         order, the authority making the order shall, as soon as may be, but not
         later than five days from the date of detention, communicate to him the
         grounds on which the order has been made and shall afford him the
         earliest opportunity of making a representation against the order to the     F
         State Government."

       It is undoubtedly true that Section 8( 1) in terms, provides for a repre-
sentation of being made to the State Government but, in a case where an officer
other than the State Government issues an order of detention under sub section
(2) of Section 3 his powers as the detaining authority to deal with the repre-        G
sentation under the provisions of Section 21 of the Bombay General Clauses
Act, 1904, cannot be said to be taken away merely because Section 8( 1)
specifically provides for making a representation to the State Government.
Section 14( 1) of the Maharashtra Act is quoted herein below in extenso for
better appreciation of the point in issue together with Section 21 of the Bombay      H
    74                   SUPREME COURT REPORTS                  [2000] SUPP. 2 S.C.R.
A   General Clauses Act, 1904:-

             "Section 14( I): Without prejudice to the provisions of Section 21 of
             the Bombay General Clauses Act, 1904, a detention order may, at any
             time, be revoked or modified by the State Government, notwithstand-
             ing that the order has be~n made by an officer mentioned in sub-
B            section(2) of section 3."

             "Section 21: Where by any Bombay Act (or Maharashtra Act), a power
             to issue notifications, orders, rules or by-laws is conferred, then that
             power includes a power. exercisable in the like manner and subject to
             the like sanction and conditions (if any), to add to, amend, vary or
c            rescind any notifications, orders, rules or by-laws, so issued."

    If the contention of Mr. Deshpande to the effect that the moment an order of
    detention issued by an order under s'ub-section (2) of Section 3 of the Act is
    communicated to the State Government under sub-section (3) of the said
    Section thereof the State Government becomes the detaining authority, and
D
    therefore, the power under Section 21 of the Bombay General Clauses Act
    cannot be exercised by the said detaining authority is correct, then it has to be
    found out as to under which contingency Section 14 of the Maharashtra Act
    would apply. To our query neither Mr. Deshpande nor Mrs. Ramani, learned
    counsel appearing for the State Government could indicate any situation when
E   such power could be exercised. It is too well known a principle of construction
    of statutes that the legislature engrafted every part of a statute for a purpose
    and the legislative intention is that every part of the statute should be given
    effect. The legislature is deemed not to waste its words or to say anything in
    vain and a construction which attributes redundancy to the legislature will not
    be accepted except for compelling reasons. We are cognizant of the principle
F
     'ex majori cautela' but it is difficult for us to apply the said principle to Section
     14 of the Maharashtra Act and even hold the same to be tautologous in as much
     as it has never been shown as to what was the necessity for the legislature to
    protect the power under Section 21 of the Bombay General Clauses Act, to an
    order of detention made under the Maharashtra Act. The only logical and
G    harmonious construction of the provisions would be that in a case where an
     order of detention is issued by an officer under sub-section (2) of Section 3 of
     the Act, notwithstanding the fact that he is required to forthwith report the
     factum of detention together with the grounds and materials to the State
     Government and notwithstanding the fact that the Act itself specifically
H    provides for making a representation to the State Government under Section
                   STATE v. S.S. ACHARYA [PATTANAIK, J.]                      75
8( 1), the said detaining authority continues to be the detaining authority until   A
the order of detention issued by him is approved by the State Government
within a period of 12 days from the date of issuance of detention order.
Consequently, until the said detention order is approved by the State Govern-
ment the detaining authority can entertain a representation from a detenu and
in exercise of his power under the provisions of Section 21 of Bombay               B
General Clauses Act could amend, vary or rescind the order, as is provided
under Section 14 of the Maharashtra Act. Such a construction of powers
would give a full play to the provisions of Section 8 (!) as well as Section
14 and also Section 3 of the Maharashtra Act. This being the position, non-
communication of the fact to the detenu that he could make a representation
to the detaining authority so long as the order of detention has not been           c
approved by the State Government in a case where an order of detention is
issued by an officer other than the State Government under sub-section (2)
of Section 3 of the Maharashtra Act would constitute an infraction of a
valuable right of the detenu under Article 22(5) of the Constitution and the
ratio of the Constitution Bench decision of this Court in Kamlesh Kumar's           D
case (supra) would apply notwithstanding the fact that in Kamlesh Kumar's
case (supra) the Court was dealing with an order of detention issued under
the provisions of COFEPOSA.

       The counsel appearing for the State strongly relied upon the decision of
this Court in Veeramani v. State o.fTamil Nadu, (19941 2 Supreme Court Cases        E
337, wherein an order of detention had been issued under the provision of
Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-Offend-
ers, Forest-Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers
Act, 1982 (hereinafter referred to as "Tamil Nadu Act"). According to the
learned counsel for the State the provisions of the said Act are in pari-materia    F
with the Maharashtra Act with which we are concerned in the present appeals
and this Court in Veeramani (supra) had recorded a conclusion that the question
of detaining authority revoKing the order after such approval does not arise and
the power preserved by virtue of the provisions of General Clauses Act is no
more exercisable. In the aforesaid case the Court considered several earlier
decisions of the Court under the provisions of COFEPOSA and was of the view         G
that the observations made therein could not apply to cases arising under other
Preventive Detention Act including the Tamil Nadu Act. Veeramani (supra)
also relied upon the judgment of this Court in State o.f Maharashtra v. Sushi la
Mafatlal Shah, [ 1988 J 4 SCC 490, for the ultimate conclusion. In our consid-
ered opinion this decision does not assist the respondents in any manner            H
    76                   SUPREME COURT REPORTS               [2000] SUPP. 2 S.C.R.
A   inasmuch as the Court in Veeramani (supra) has considered the situation that
    emerged subsequent to the date of approval of the order of detention by the
    State Government and not prior thereto. As has been stated earlier, it may be
    difficult to contend that even after the approval of the order of detention by the
    State Government the detaining authority would still be competent to entertain
B   and dispose of a representation in exercise of the powers under Section 21 of
    Bombay General Clauses Act, but this decision cannot be said to be an author-
    ity to hold that even before the approval of the order of the detaining authority
    the detaining authority does not possess the power under Section 21 of the
    Bombay General Clauses Act. Such a conclusion would make the entire pro-
    vision of Section 14 of the Maharashtra Act redundant and otiose. Then again
c   the Court had fully relied upon the observations of this Court in State of
    Maharashtra v. Sushi/a M(lfatlal Shah (supra) and the judgment of Sushi/a
    M(lfatlal Shah (Supra) has been directly considered and overruled in the Con-
    stitution Bench decision in Kamlesh Kumar's case (supra). It would also be
    appropriate to notice that even in Raj Kishore Prasad v. State of Bihar, [1982]
D   3 Supreme Court Cases l 0, though the Court did not entertain the contention
    that detaining authority under the provisions of National Security Act has a
    right to consider the representation on the ground that the order of detention
    had been approved by the State Government yet it had been observed that
    constitutionally speaking a duty is cast on the detaining authority to consider
     the representation which would obviously mean that if such representation is
E
    made prior to the approval of the order of detention by the State Government.
    This being the position, it goes without saying that even under the Maharashtra
     Act a detenu will have a right to make a representation to the detaining
     authority so long as the order of detention has not been approved by the State
     Government and consequently non-communication of the fact to the detenu
F    that he has a right to make representation to the detaining authority would
     constitute an infraction of the valuable constitutional right guaranteed to the
     detenu under Article 22(5) of the Constitution and such failure would make the
     order of detention invalid. We, therefore, see no infirmity with the impugned
    judgment of the Full Bench of the Bombay High Court to be interfered with
G    by this Court. These appeals accordingly fail and stand dismissed.

    v.s.s.                                                       Appeals dismissed.