2001 ALL MR (Cri) 1333
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

VISHNU SAHAI AND A.S. AGUIAR, JJ.

Suman Bhanwarlal Somani Vs. The State Of Maharashtra & Ors.

Criminal Writ Petition No.565 of 1999

2nd May, 2001

Petitioner Counsel: Mrs.A.M.Z.ANSARI
Respondent Counsel: Mr. B.R.PATIL, Mr. H.V.MEHTA

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (1988), S.3(1) - Detention - Consideration of detenu's representation - Detaining authority to consider detenu's representation independently and uninfluenced by the report of Advisory Board.

(1982) 1 SCC 422 - Followed. (Para 2)

Cases Cited:
Mrs.Nafisa Khalifa Ghanem vs. Union of India, (1982) 1 SCC 422. 4 & 5


JUDGMENT

VISHNU SAHAI, J.:- Through this writ petition preferred under Article 226 of the Constitution of India the petitioner who styles herself as the wife of the detenu-Bhanwarlal Hiralal Somani has impugned the order dated 2.4.1998 passed by the 2nd Respondent Mr.G.S.Sandhu, the Secretary to the Government of Maharashtra, Home Department(Preventive Detention) and Detaining Authority, Mantralaya, Mumbai - 400 032 detaining the detenu under section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (46 of 1988).

It is pertinent to mention that in prayer clause (c) the petitioner has also prayed that direction or order be passed for quashing and setting aside the freezing order bearing F.No.CA/MUM/III/PITNDPS/99/530 dated 9.2.2000 passed by Shri Maheshwar Prasad, the Competent Authority against the detenu but counsel for the petitioner has not pressed this prayer.

The detention order along with grounds of detention was served on the detenu on 7.4.1998 and their true copies are annexed as annexures A and B respectively to this petition.

2. We have heard the learned counsel for the parties. Since in our judgment a reference to the prejudicial activities of the detenu stipulated in the grounds of detention, prompting the 2nd Respondent to pass the impugned order is not necessary for deciding ground 5(ix) pleaded in the petition on which ground alone in our view, this petition deserves to succeed, we are not adverting to them. Ground No.5(ix) in short is that the detenu at the time of hearing before the Hon'ble Advisory Board on16.6.1998, submitted three copies of his representation addressed to the Advisory Board. The Detaining Authority and the State Government rejected his representation on 4.8.1998 and 7.8.1998 respectively and they were under an obligation to consider the same independently, unifluenced by the report of the Advisory Board and they should satisfy this Court whether the same was done by them and in case it was not done the impugned detention order would be rendered bad in law.

3. Ground No. 5(ix) has been replied to in two returns viz. those of the Detaining Authority and of Mr.B.S.Wankhede, Under Secretary to the Government of Maharashtra, Home Department (Special), Mantralaya, Mumbai - 400 032.

In para 12 of his return the Detaining Authority has averred that the detenu's representation was expeditiously considered by the Detaining Authority as well as the State Government and he craves leave to refer to and rely upon the affidavit filed on behalf of the State Government in this regard.

Ground No.5(ix) has been replied to in para 4 of the return of Mr.B.S.Wankhede. A perusal of the said para would show that the report/opinion of the Advisory Board was received in the Home Department on 31.7.1998. On 3.8.1998 parawise comments on the points raised in the representation were made by the concerned Assistant and the said comments, report/opinion of the Advisory Board, and detenu's representation along with other material on record was processed through the Section Officer on 3.8.1998 itself and by the Under Secretary on 4.8.1998 who submitted the same on the very day to the Detaining Authority who on that very day (4.8.1998) considered and rejected the detenu's representation.

4. Mrs.Ansari, learned counsel for the petitioner strenuously urged that para 4 of the return of Mr.Wankhede makes it explicit and manifest that the Detaining Authority did not independently consider the detenu's representation but in considering the same he was primarily influenced by the report of the Advisory Board. We have reflected this and on the face of the averments contained in para 4 of the return of Mr.Wankhede find it difficult to repel Mrs.Ansari's submission.

Mrs.Ansari urged that since the detenu's representation was not independently considered by the Detaining Authority and its rejection was influenced by the report of the Advisory Board the impugned detention order would be rendered illegal in view of the ratio laid down by the Supreme Court in the case of Mrs.Nafisa Khalifa Ghanem Vs. Union of India and Others . (1982) 1 SCC 422. Mrs.Ansari specifically invited our attention to the following lines of para 7 of the said judgment :

"7........ ......... ........ ....... ....... This Court has held that the detenu has an independent constitutional right to have the representation considered by the detaining authority irrespective of whatever the Advisory Board may do. In the instant case, though the respondents do not admit that they awaited the decision of the Advisory Board, the facts put together lead to the irresistible inference that the detaining authority waited for the opinion of the Advisory Board."

5. In view of the ratio laid down in (1982) 1 SCC 422 (supra) the impugned detention order would have to be quashed. In the circumstances we quash it and direct that the detenu Bhanwarlal Hiralal Somani be released forthwith unless wanted in some other case.

Rule made absolute in the said terms.

Petition allowed.