Police have power to revoke MPDA orders — HC

April 1: In a judgement expected to have widespread effect in matters of detention under the Maharashtra Prevention of Dangerous Activitie...

April 1: In a judgement expected to have widespread effect in matters of detention under the Maharashtra Prevention of Dangerous Activities (of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons) Act (MPDA), a full bench of the Bombay High Court at Nagpur recently declared that a detenue had every right to appeal against his detention to the detention authority. The appeal can be done within 12 days after the order is sent to the state government for approval, provided it is not confirmed by the state. This right not only flows from Article 22 of the Constitution, but its non-apprisal by the authority will also be illegal and “vitiate the order of the detention”, the judgement says.

Till now, the view held was that the representation was to be made only to the state government, which confirms such orders within 12 days of the order made by the detaining authority. This order explicitly states that not only does the detaining authority have the power to revoke the order, but should also inform the detenue of this right of appeal before the authority. Now, many detenues could be set free on the “non-intimation” clause alone.

The judgement by the bench presided over by Justice J N Patel and including Justice S G Mahajan and Justice S K Shah, was delivered on March 23 when deciding two petitions, one filed by Sunil aka Sadashiv Ghate, a Gawli aide and resident of Dagdi Chawl and another Zubir Gopalani.

Story continues below this ad

The petitions were referred to the full bench when there was a divergence of opinion between different benches of the Bombay High Court on the issue. While the Bombay bench held that there was no scope in the Act to allow for representation against the detention orders before the authority itself, the Aurangabad bench held that non-intimation of the right to make a representation before the detaining authority “invalidates the order”.

Under the MPDA, the power to detain persons is vested with the state government. Under sub-section 2 of section 8 of the Act, the powers are delegated to the district magistrate or the police commissioner of the area. The police commissioner, though has to report the order to the government and this order remains in force for only 12 days, unless it is confirmed by the government.

Section 8 of the Act says that the detaining authority has to tell the detenue, “within a period of five days from the date of detention, the grounds on which he has been detained, and afford him the earliest opportunity to make a representation against the order to the state government”. The bench observed that the section obliges the authority to inform the right of appeal to the detenue.

The state government had argued that the section is clear that the representation has to be made “before the state government,” alone. However, the bench observed that section 14 of the Act empowers the authority to revoke or modify the detention order as well as gives the state government the powers to do so.

Story continues below this ad

The bench also referred to the apex court orders in the Kamlesh Kumar Iswardas Patel and the Amanulla Khan cases, where the court held that the right of the detenue to an earliest chance for redressal stems from Article 22 and though it does not specify to whom the representation is to be done, “earliest opportunity” would mean the detaining authority itself. “This right of the detaining authority, (to revoke an order) is inherent in the power to make the order”.

“The mere use of the words state government in section 8 of the Act, does not exclude the detaining authority”, the Nagpur bench held. The bench declared that the view of the high court bench at Bombay in the Dagadibai Jadhao and others, case, holding that there was no right to represent before the detaining authority, was “not correct”.