Quashed

Madhukar Ramkrushna Patil v. District Magistrate and Ors.

Bombay HC5 May 2014WP/731/2014

Case brief

AI extract

What is this about?

The High Court of Bombay quashed a detention order under the MPDA Act, 1981. The court held that the failure of the Additional Chief Secretary (Home) to consider the petitioner's representation dated 3.2.2014 violated the mandatory requirement of Article 22(5) of the Constitution to dispose of representations 'as soon as may be'. The unexplained delay and non-consideration vitiated the detention o

What did the court decide?

The detention order dated 02.09.2013 issued under Section 3(2) of the MPDA Act is quashed and set aside, and the detenu is released forthwith.

Madhukar Ramkrushna Patil Vs District… — Pension and Retirement Benefits | Bombay HC (2014)

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108-Cri.WP-731.14 (judg)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO.731 OF 2014

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Madhukar Ramkrushna Patil .. Petitioner vs. District Magistrate and ors. .. Respondents

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Mr.U.N. Tripathi for Petitioner.

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Mr. S.K. Shinde, PP a/w. Mr. J.P. Yagnik,APP for State.

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CORAM : A. S. OKA & M. S. SONAK, JJ. 5TH MAY 2014

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JUDGMENT. :- (PER M.S. SONAK,J.)

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1] This petition under Article 226 of the Constitution of India takes exception to the detention order passed by the District Magistrate, Jalgaon, in exercise of powers under 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 (MPDA) with a view to preventing the Petitioner from acting in any manner prejudicial to the maintenance of public order.

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2] In the petition, although several grounds have been raised to question the impugned detention order, Mr. U.N. Tripathi, learned counsel appearing for the petitioner emphasized that in this case

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there has been failure to consider the petitioner's representation dated 3.2.2014 addressed to the Additional Chief Secretary (Home), State of Maharashtra (Prevention Detention), Home Department (Spl) Mantralaya, thereby frustrating mandate of Clause (5) of Article 22 of the Constitution of India. Relying upon the decision of this Court in the case of Vilas Shankar Dhande vs. The Commissioner of Police & ors.¹ , Mr. Tripathi submitted that unexplained delay or failure to consider representation violates Clause (5) of Article 22 of the Constitution of India and consequently vitiates the detention of the petitioner.

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3] There is considerable merit in the aforesaid submission of Mr. Tripathi.

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4] There is no dispute that the petitioner addressed his representation dated 3.2.2014 to the Additional Chief Secretary, Government of Maharashtra (Preventive Detention) through his lawyer. In the return filed by Mr. B.D. Umate, Deputy Secretary, Government of Maharashtra, Home Department (Special), it is admitted that such representation was received at the MPDA desk on 5.2.2014. The concerned Assistant thereafter submitted the file to the Section Officer on the same day. The Section Officer made

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1 2012 ALL MR (Cri.) 1118

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his endorsement there on 6.2.2014 and forwarded the same to the Deputy Secretary on the same day. The Deputy Secretary made his endorsement on 6.2.2014 and forwarded the same to the Additional Chief Secretary (Home) on the same day. The Additional Chief Secretary (Home) called for remarks from the District Magistrate, Jalgaon, Detaining Authority on 18.2.2014. This instruction was received by the Detaining Authority on 20.2.2014. The Detaining Authority was requested to submit remarks by 27.2.2014. As the same were not received by the said date, two reminders dated 28.2.2014 and 14.3.2014 came to be addressed to the Detaining Authority. Ultimately, the remarks of the Detaining Authority were received in the office of Additional Chief Secretary (Home) on 24.3.2014. The return, however, proceeds to state that “ as remarks were not satisfactory” , the Detaining Authority was requested to submit proper remarks vide letter dated 24.3.2014. The return was filed on 29.3.2014 and therein it is stated that the remarks from the Detaining Authority were still awaited in the office of the Additional Chief Secretary (Home).

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5] The Detaining Authority has also filed his return on 5.4.2014. In response to ground 7(d) of the writ petition, which concerns delay for non-disposal of representation by the State Government, the

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108-Cri.WP-731.14 (judg)

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Detaining Authority has offered no comments.

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6] From the aforesaid, it is clear that there is no consideration whatsoever of the representation dated 3.2.2014 made by the petitioner. There is no explanation whatsoever for the delay between 18.2.2014 to 24.3.2014 and even thereafter in the matter of consideration of the petitioner's representation. The Additional Chief Secretary (Home) may be justified in seeking remarks from the Detaining Authority. However, the circumstance that such remarks were unsatisfactory or were not forthcoming does not relieve the Additional Chief Secretary (Home) from discharging his duty to expeditiously consider and dispose of the petitioner's representation. Even de hors the remarks from the Detaining Authority, the Additional Chief Secretary (Home) was duty bound to consider and dispose of the petitioner's representation with utmost despatch. Ultimately, the liberty of the petitioner was at stake.

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7] The Supreme as time and again observed that there is a constitutional mandate commanding authority to whom the detenue submits his representation to consider and dispose of the same as expeditiously as possible. The use of words “ as soon as may be” in Art.22(5) is important. It reflects the anxiety on the part of the

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framers of the Constitution to enable the detenu to know the grounds on which the order of his detention has been made so that he can make an effective representation against it at the earliest. The ultimate objective of this provision can only be the most speedy consideration of his representation by the authorities concerned, for, without its expeditious consideration with a sense of urgency the basic purpose of affording earliest opportunity of making the representation is likely to be defeated. This right to represent and to have the representation considered at the earliest flows from the constitutional guarantee of the right to personal liberty – the right which is highly cherished in our Republic and its protection against arbitrary and unlawful invasion.²

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8] It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of the detenu as early as possible. The appropriate Government itself is bound to consider the representation as expeditiously as possible. The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his

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2 Rashid Sk. V. State of W.B. (1973) 3 SCC 476

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representation considered and it is imperative that when the liberty of a person is in peril, immediate action should be taken by the relevant authority.³

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9] The facts of the present case, indicate that there is virtual non-consideration of the detenu's representation by the Additional Chief Secretary (Home). As observed earlier, even delay in consideration of representation, would render the detention unconstitutional. The representation must be taken up for consideration as soon as it is received and unless it is absolutely necessary to wait for assistance from some other source, it must be dealt with expeditiously and the final decision communicated to the detenu. In matters of preventive detention, there is a dual obligation upon the Government and corresponding dual rights in favour of a detenu, namely :(1) to have his representation independently considered by the Government, and (2) to have that representation in the light of all facts and circumstances of the case considered by an Advisory Board. The fact that Article 22(5) enjoined upon the Detaining Authority to afford the detenu the earliest opportunity to make a representation must implicitly mean that such a representation must, when made, be considered and disposed of as

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3 Jaynarayan Sukul v. State of W.B.- (1970) 1 SCC 219

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expeditiously as possible.⁴

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10] In the case of Kundanbhai D. Shaikh v. Distt. Magistrate, Ahmedabad⁵ , the Supreme Court deprecated the lethargy on the part of the Executive in matters of disposal of representations made by the detenues, by observing thus:

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“The representation has to be disposed of at the earliest and if there has been any delay in the disposal of the representation, the reasons for the delay must be indicated to the court or else the unexplained delay or unsatisfactory explanation in the disposal of the representation would fatally affect the order of the detention, and in that situation, continued detection would become bad.

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In spite of law laid down by the Supreme Court repeatedly over the past three decades, the Executive, namely, the State Government and its officers continue to behave in their old, lethargic fashion and like all other files rusting in the Secretariat for various reasons including red-tapism, the representation made by a person deprived of his liberty, continue to be dealt with in the same fashion. The Government and its officers will not give up their habit of maintaining a consistent attitude of lethargy. So also, the Supreme Court will not hesitate in quashing the order of detention to restore the “liberty and freedom” to the person whose detention is allowed to become bad by the Government itself on account of his representation not being disposed of at the earliest.”

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11] In the facts and circumstances of the present case, as observed earlier, there is no consideration at all, much less disposal of the representation made by the detenu – petitioner. This is

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4 Ranjit Dam v. State of W.B.-(1972) 2 SCC 516

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5 (1996) 3 SCC 194

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sufficient to vitiate the continued detention of the petitioner.

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12] Accordingly, we pass the following order.

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ORDER

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(A) Rule is made absolute in terms of prayer clause (b), which reads thus:

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“(b) That the order of detention being No.DP4/CB/645/2013 dated 02.09.2013 issued under Section 3(2) of M.P.D.A. Act, 1981 by the Respondent No.1 against the detenu, abovenamed be quashed and set aside and on quashing the said order of detention the detenu be released forthwith;”

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(B) All concerned to act upon an authenticated copy of the operative part of this judgment and order.

(M. S. SONAK, J.)

(A. S. OKA, J.)

Dinesh

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Madhukar Ramkrushna Patil v. District Magistrate and Ors.

Case brief

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What did the court decide?

Madhukar Ramkrushna Patil v. District Magistrate and Ors.

Case brief

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