Krishna Iyer, J. - (1.) The detenu, petitioner, challenges his detention on various grounds but Shri H. S. Marwah, appearing as amicus curiae has raised big contentions and small, some of which do not merit consideration and others need not be dealt with since, on a short point, the petition must succeed.
(2.) The scheme of the Maintenance of Internal Security Act, 1971 (Act No. 26 of 1971) (hereinafter called the MISA, for short) is in keeping with Article 22 of the Constitution and emphasizes the various stages at which there will be consideration of the need for the detention by different authorities, such as the District Magistrate, the State Government and ultimately the Central Government. For the effective exercise of this power a scheme has been built into the statute. We are concerned at present with the power vested in the Central Government under Section14(1)(b) to direct release of the detenu. We may extract the provision here: "14(1) Without prejudice to the provisions of Section 21 of the General Clauses Act, 1897, a detention order may, at any time, be revoked or modified - ********** (b) notwithstanding that the order has been made by State Government,or by the Central Government." With a view to posting the Central Government with the detention and the grounds " therefor. Section 3(4) provides thus: "3. Power to make orders detaining certain persons. ********** (4) When any order is made or approved by the State Government under this section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as in the opinion of the State Government have a bearing on the necessity for the order. " (emphasis, ours)
(3.) A fair reading of Section 3 indicates that the State Government may directly issue an order of detention or, if it is done by a lesser authority, approve of such detention order as provided in the statute. Sub-section (4) of Section 3, which we have extracted, obligates the State Government to communicate, within seven days of the order of detention it makes or it approves, that fact to the Central Government, together with the grounds on which the order has been made and other relevant particulars. Even assuming that the order is made by the District Magistrate and is approved by the State Government, the communication has to be made to the Central Government within the time specified. This procedural mandate is inviolable except on peril of the order being voided.;