1999 ALL MR (Cri) 1572
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

VISHNU SAHAI AND T.K. CHANDRASHEKHARA DAS, JJ.

Shri. Wakar Ahmed Siddiqui Vs. The State Of Maharashtra & Ors.,

Cri. W. P. No. 1707 of 1998

8th July, 1999

Petitioner Counsel: Ms. A. M. Z. ANSARI
Respondent Counsel: Mr. RAJIV PATIL, Additional Public Prosecutor

Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act (1981), S.3(1) - Delay in consideration of representation by detenu - Dy. Chief Minister (Home) received processed representation of detenu on 9-10-98 and till 15-10-98 he did nothing about it - On 15th he delegated powers to Addl. Chief Secretary who rejected the representation on the same day - 6 days delay unexplained because matter of delegation required no application of mind - No return filed by him explaining why he took six days to make delegation - Order is liable to be quashed.

AIR 1991 SC 1090 and AIR 1981 SC 431 Rel. on. (Para 12, 13)

Cases Cited:
Smt. Gracie Vs. State of Kerala, AIR 1991 SC 1090 [Para 8]
Smt. Shalini Soni Vs. Union of India, AIR 1981 SC 431 [Para 10]
Harish Pahwa Vs. State of U.P., AIR 1981 SC 1126 [Para 10,11,14]
Santosh Krishna Tandel Vs. Commissioner of Police, 1998 (6) LJ 536 [Para 14]


JUDGMENT

VISHNU SAHAI, J. :- Through this writ Petition preferred under Article 226 of The Constitution of India, the Petitioner who styles himself as the friend of the detenu Yamin Yasin Qureshi has impugned the detention order dated 25-8-1998 passed by the Second Respondent Mr. R. H. Mendonca, Commissioner of police, Brihan Mumbai detaining the detenu under sub - section (1) of section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (No. LV of 1981) (Amendment - 1996)

The detention order along with the grounds of detention also dated 25-8-1998, was served on the detenu on 30-8-1998. The true copies of the detention order and the grounds of detention are annexed as Annexures A and C respectively to this Writ Petition. Since, in our view for the decision of this Writ Petition, it is not necessary to refer to the prejudicial activities of the detenu, contained in the grounds of detention, we are not adverting to them.

2. Ms. Ansari learned counsel for the Petitioner has urged two grounds before us :-

She firstly urged the ground which has been pleaded as Ground no. 5(iv) in the petition.

She secondly urged the ground which has been taken as ground no. 5(vi) in the petition.

3. Ground no.5 (iv) in short is that the detenu in his statement dated 13-4-1998 categorically stated that he had studied up to 3rd standard and knew only Hindi language and signs only in Hindi as is borne out from the documents at pages 199, 208 and 217 which was placed before the Detaining Authority. In ground no. 5 (iv) it has also been mentioned that since the Detaining authority in place of Hindi translation of documents, supplied him the documents translated in English, his right to make an effective representation under Article 22 (5) The Constitution of India was impaired.

4. Ground no. 5 (iv) has been replied to in para 10 of the return of the Detaining Authority wherein he has categorically mentioned that since the detenu himself had given a statement and demanded the translation of documents in Urdu language, which language as per his statement he knew, he was supplied the documents in the said language and therefore his right to make an effective representation under Article 22 (5) of the Constitution of India was not impaired. To substantiate the averments contained in para 10 of the return of the Detaining Authority Mr. Rajiv Patil learned counsel for the respondents, placed before us the original file. On perusing the original file, we found that there was a statement of the detenu dated 30-8-1998 wherein he has stated that today. Sub - inspector Desai from the D. N. Nagar police station informed him that he was detained under the M.P.D.A Act and explained and served the detention order under the M.P.D.A. Act on him. He has also stated in the said statement that he had studied up to Vth standard in Urdu language and could read and write Urdu. He has also mentioned therein that he had requested the police to give him the translations of the original documents in the said language.

5. In view of the statement of the detenu contained in the original file and referred to above, We are implicitly satisfied that the averments contained in ground no. 5 (iv) are without merit and those contained in para 10 of the return of the Detaining Authority are correct and on account of the documents being furnished to the detenu in Urdu, his right to make an effective representation under Article 22(5) of the Constitution of India was not impaired.

6. Hence, we reject the first ground canvassed by Ms Ansari.

7. We now come to the second ground namely Ground no. 5 (vi). In short, the said ground is that the detenu submitted a representation dated 23-9-1998 to the Chairman, Advisory Board which was received by the Advisory Board on 24-9-1998 and was considered by the State Government on 16-10-1998. In Ground no. 5 (vi) it has been averred that there was a delay on the part of the State Government in considering the said representation. Ms. Ansari learned counsel for the Petitioner urged that since there was a delay on the part of the State Government in considering the detenu's representation, his continued detention has been rendered illegal.

8. That the State Government is under a legal obligation to consider a representation preferred by the detenu to the Advisory Board is no longer a grey area in view of the ratio laid down by the Supreme Court in para 9 of the decision reported in AIR 1991 Supreme Court 1090 Smt. Gracie V/s State of Kerala and ors. In all fairness, we wish to point out that Mr. Rajiv Patil learned counsel for the respondents, has also not taken a stand to the contrary.

9. Ground no. 5 (vi) has been replied to in para 2 of the return of Mr. M.B.Khopkar, Desk Officer Home Department (Special) Government of Maharashtra, Mantralaya, Mumbai -32. In the said para, Mr. Khopkar has averred that the detenu's representation dated 23-9-98 addressed to the Advisory Board was forwarded by the Advisory Board along with its report to the State Government on 8-10-1998 and on the same day, was received by the State Government, it was processed and submitted to the Dy. Chief Minister (Home) through the Officers concerned in the Home Department for his consideration on 9-10-1998. on 15-10-1998 the Dy. Chief Minister (Home) delegated his powers to the Additional Chief Secretary (Home) who after considering it, rejected it the same day, and on 16-10-1998 vide Government letter dated 16-10-1998, the detenu was apprised of the said rejection.

Mr. Rajiv Patil learned counsel for the respondents strenuously urged that in the factual matrix referred to in the preceeding paras, the rejection of the detenu's a representation was made at the earliest opportunity and there is no infraction of his fundamental right under Article 22{5) of The Constitution of India.

10. We have reflected over the submission canvassed by Mr. Rajiv Patil and we are constrained to observe that we do not find any merit in it.

Article 22 (5) of The Constitution of India gives the detenu a right to make a representation against a preventive detention order at the earliest opportunity. The Supreme Court in the case of Smt. Shalini Soni Vs. Union of India and other reported in AIR 1981 Supreme Court 431 has held in para 4, in the detenu's right to make a representation at the earliest opportunity, is inherent obligation on the authority to which the representation is made to dispose off the same at the earliest opportunity.

The Supreme Court in the case of Harish Pahwa V/a State of U.P. reported in AIR 1981 Supreme Court 1126 in para 3 has held in the context of the question of delay in the disposal of the representation that : -

" It is the duty of the State to proceed to determine representations of the character above mentioned with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu".

11. A perusal of the observations extracted from AIR 1981 Supreme Court 1126 supra, would show that the representation has to be dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu. To our regret, the said ratio of the Apex Court has not been followed by the Dy. Chief Minister (Home) A perusal of para 2 of the return of Mr. M. B. Khopkar, referred to above would show that the Dy. Chief Minister (Home) received the processed representation of the detenu on 9-10-1998 and till 15-10-1998 he did not attend to it. 0n 15-10-1998, he delegated the powers to the Additional Chief Secretary (Home) who, rejected it the same day.

12. We are at our wit's end that if at all the Dy. Chief Minister (Home) had to make a delegation to the Additional Chief Secretary (Home) then, why it took him 6 days to make such a delegation. After all, in the matter of delegation, no application of mind was required. In our view, that it took the Dy. Chief Minister (Home) 6 days to make the delegation shows that in his view, the representation of the detenu was not required to be disposed off at the earliest opportunity.

13. In the instant case, neither any return has been filed by the Dy. Chief Minister (Home) stating therein as to why it took him 6 days to make a delegation nor Mr. Khopkar in his return has mentioned as to why it took the Dy. Chief Minister (Home) such a long time to make a delegation.

14. In the instant case, on account of 6 days delay on the part of the Dy. Chief Minister (Home) in making the delegation to the Additional Chief Secretary (Home) the ratio laid down in AIR 1981 supreme Court 1126 supra extracted above, in terms that the representation has to be dealt with continuously, has been given a go - by.

In the circumstances, of the present case, it cannot be said that the representation of the detenu was disposed off at the earliest opportunity as it should have been, in view of the provisions contained in Article 22(5) of The Constitution of India.

It would be appropriate to refer to the Division Bench decision of this Court reported in 1998 (6) LJ. 536 Santosh Krishna Tandel v/s commissioner of Police & anr to which one of us (Vishnu Sahai, J) was a party. In the said case, the file duly processed and scrutinised was submitted to the Dy. Chief Minister (Home) for his consideration on 17-12-1997 and on 24-12-1997, he delegated his powers to the Additional Chief Secretary (Home) who, on the said date rejected the detenu's representation. This Court held that the period of one week's time, taken by the Dy. Chief Minister to make a delegation was unduly wrong and had resulted in the representation of the detenu not being disposed off at the earliest opportunity. Consequently, it held the detenu's continued detention vitiated in law and quashed the impugned detention order.

15. It should be borne in mind that preventive detention is a draconian piece of legislation. The law may permit it when the prejudicial activities of a person cannot be curbed under the ordinary law of land but, it should always be borne in mind that strict procedural safeguards guaranteed by Article 22(5) of the Constitution of India, must be adhered to by the authorities and one such safeguard is the right of the detenu to make a representation at the earliest opportunity in which right, as held in AIR 1981 Supreme Court 431 supra, is implicit an obligation on the authority to which the representation is preferred to dispose off the same at the earliest opportunity.

16. In our view, on account of the delay in the disposal of the detenu's representation, his continued detention has been rendered illegal.

17. In the result, this petition is allowed. The impugned detention order is quashed and the detenu Yamin Yasin Qureshi is directed to be released forthwith unless wanted in some other case.

Rule is made absolute.

Petition allowed