Allowed

Khurshid Liyakat Khan (Illiyas Gulab Shaikh Detenu) v. the State of Maharashtra and Ors.

Bombay HC19 Mar 2021WP/291/2021

Case brief

AI extract

What is this about?

In a writ petition, the court addressed the detention of a prisoner under the MPDA Act. The court found that the significant delay in forwarding the detainee's representation to the authority and the subsequent failure to process it with expedition violated Article 22. Consequently, the detention order was deemed fatal and set aside.

What did the court decide?

The detention order dated 22.06.2020 was set aside, and the detenue was directed to be released forthwith.

Khurshid Liyakat Khan (Illiyas Gulab Shaikh… — Pension and Retirement Benefits | Bombay HC (2021)

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(910)-WP-291-21.doc.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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WRIT PETITION NO.291 OF 2021

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Khurshid Liyakat Khan (Sister of the detenue) Illiyas Gulab Shaikh (detenue)

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..Petitioner

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Versus

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The State of Maharashtra & Ors.

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..Respondents

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Mrs. Aisha Z. Ansari a/w Mrs. Nasreen Ayubi, for the Petitioner. Mrs. M. H. Mhatre, APP for the Respondent - State.

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CORAM : S. S. SHINDE & MANISH PITALE, JJ.

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RESERVED ON : 22^nd FEBRUARY, 2021 PRONOUNCED ON : 19^th MARCH, 2021.

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Judgment (Manish Pitale, J.)

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Rule. Rule made returnable forthwith. Heard fnally.

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By this writ petition the petitioner who is sister of one Illiyas Gulab Shaikh has challenged order dated 22.06.2020 passed by the respondent No.2. i.e. Commissioner of Police, Nashik City under the provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drugofenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons Engaged in Black-Marketing of Essential

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Commodities Act, 1981 (“MPDA Act”), whereby the said Illiyas Gulab Shaikh (hereinafter referred to as “the detenue”) has been detained. The detention order and the grounds of detention along with documents were served upon the detenue. It is the case of the detenue that he had preferred a representation on 02.09.2020 addressed to the State Government through the Superintendent of Nashik Road, Central Prison. The said representation of the detenue stood rejected on 18.09.2020 and it was communicated to the detenue on 21.09.2020.

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In the present writ petition, various grounds of challenge have been raised against the said detention order dated 22.06.2020. But the learned counsel appearing for the petitioner while challenging the impugned detention order has placed specifc reliance upon one particular ground, which pertains to delay in consideration and disposal of representation made by the detenue.

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While raising the specifc ground of challenge, learned counsel appearing for the petitioner invited attention of this Court to a few dates. It was brought to the notice of this

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Court that while the representation of the detenue was moved on 02.09.2020, it was rejected on 18.09.2020, which was later communicated to the detenue as late as on 21.09.2020. According to the learned counsel for the petitioner, aforesaid delay in consideration and rejection of the representation in the present case was sufcient ground for setting aside the order of detention. It was submitted that there was inordinate delay in consideration of the representation and the process of calling for parawise comments from the detaining authority and other such proceedings took far too long, thereby justifying the prayer of the detenue for setting aside the detention order only on the aforesaid ground. In support of the said contention, learned counsel for the petitioner placed reliance upon judgments of the Hon’ble Supreme Court in the case of Harish Pahwa Vs. State of U. P., AIR 1981 SC 1126 and Solomon Castro Vs. State of Kerala, (2000) 9 SCC 561 .

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On the other hand, Mrs. M. H. Mhatre, learned APP appearing on behalf of the respondents submitted that the aforesaid ground of challenge raised on behalf of the detenue was without any substance because the afdavits in reply fled on behalf of the detaining authority as well as the State BGP. 3 of 9

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Government placed detailed facts on record to indicate that there was no delay in considering and disposing of the representation of the detenue. On this basis, it was submitted that the said ground was not sufcient for setting aside the order of detention. Learned APP placed reliance on judgments of the Hon’ble Supreme Court in the case of Noor Salman

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Makani Vs. Union of India, 1994 Cri. L. J. 602 and Union of India Vs. Saleena, (2016) 3 SCC 437 .

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We have considered the contentions raised on behalf of the rival parties. The ground of challenge raised on behalf of the detenue concerns the alleged delay in consideration and disposal of the representation moved by the detenue against the detention order. There is no doubt about the fact that settled position of law indicates that since liberty of an individual is involved in such cases, it is extremely necessary for the State Government to consider and dispose of representations made against detention orders at the earliest and with utmost promptness. This is because a detention order curtails the liberty of an individual without the usual process of law being followed. In such circumstances, every aspect dealing with the rights of the detenue has been considered BGP. 4 of 9

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valuable. The Hon’ble Supreme Court has repeatedly emphasized on this aspect of the matter and by referring to Article 22 of the Constitution of India, it has been emphasized that representations made by detenues ought to be considered and disposed of immediately.

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Keeping this position of law in mind, we need to consider the facts of the present case. The petitioner claims that the detenue had moved the representation on 02.09.2020, which was eventually rejected on 18.09.2020 and it was communicated to the detenue on 21.09.2020. The question for consideration is, as to whether in the facts of the present case, it could be said that the delay in consideration and disposal of the representation was such that it became fatal for the detention order.

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In response to the said specifc ground raised on behalf of the detenue, the respondent – State Government in its reply has specifcally stated in para 2 that the representation of the detenue was dated 03.09.2020, but it was received in the Special Branch on 11.09.2020 through the Superintendent, Nashik Road Central Prison with forwarding letter dated

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03.09.2020. It is then explained that remarks were called from the detaining authority i.e. respondent No.2, Commissioner of Police. Such remarks of the detaining authority were received on 17.09.2020. The fle was then put up with the remarks of the detaining authority along with the representation of the detenue before the Deputy Secretary, who endorsed it and forwarded it to the Additional Chief Secretary (Home) on the same day. It is then stated that the Additional Secretary (Home) considered the representation along with the remarks of the detaining authority and rejected the representation on 18.09.2020 itself. The rejection of the representation was communicated to the detenue on 21.09.2020 as 19.09.2020 and 20.09.2020 were Saturday and Sunday.

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The respondent No.2 – detaining authority in its reply with respect to the said aspect of the matter has stated that the representation of the detenue along with letter from State Government asking for parawise comments was received on 11.09.2020. The parawise comments were prepared and scrutinized by the ACP (Crime) and DCP (Crime). Thereafter, the same were forwarded to the detaining authority on 15.09.2020 and then the said authority forwarded the parawise

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comments on 17.09.2020 to the Additional Chief Secretary, Home Department. On the basis of such details regarding dates provided by the aforesaid respondents, it was claimed by the learned APP that there was hardly any delay in consideration and disposal of the representation of the detenue.

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A perusal of the specifc ground raised on behalf of the detenue and the factual averments made in that regard in the replies fled on behalf of the respondents, shows that while the representation was submitted by the detenue on 02/03.09.2020, it was rejected on 18.09.2020 and the same was communicated to the detenue on 21.09.2020. As per the position of law laid down by the Hon’ble Supreme Court in a series of judgments, including the aforesaid judgments in the cases of Harish Pahwa ( supra ) and Solomon Castro ( supra ), it has been specifcally emphasized that when a representation is made by the detenue in respect of a detention order, the same has to be processed and considered with utmost expedition. The requirement of law is that the authorities have to act in a swift manner so as to ensure that the representation is considered and disposed of at the earliest possible date. This BGP. 7 of 9

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is because the right guaranteed under Article 22 of the Constitution of India is zealously protected by the Constitutional Courts.

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In the present case, the admitted facts show that when the representation was made on 02/03.09.2020, it reached the concerned authority as late as on 11.09.2020. This fact is admitted in replies fled on behalf of the respondents. Thereafter, the parawise comments were received from the detaining authority after lapse of about seven days on 17.09.2020. Thereafter, the representation stood rejected on 18.09.2020 and the rejection was communicated to the detenue on 21.09.2020. It is surprising that in modern times of today a representation preferred by the detenue on 02/03.09.2020 reached the concerned authority as late as on 11.09.2020. The representation was dispatched by the Superintendent of Nashik Road Central Prison and it took a period of as many as about eight days for the representation to reach the concerned authority. Even thereafter the process of calling for parawise comments and eventually rejection of the representation did not demonstrate any sense of urgency on the part of concerned authorities. This has been deprecated

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repeatedly by the Hon’ble Supreme Court of India and also in judgments of this Court.

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In so far as the judgments relied upon by the learned APP are concerned, they can be distinguished on facts, because it was found that delay in forwarding representation in those cases did not sufer from major delay, particularly when there were holidays in between. Such is not the case in the facts and circumstances concerning the present matter. Therefore, we are of the opinion that aforesaid delay in consideration of representation of the detenue proves to be fatal to the detention order.

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Accordingly, we allow the present writ petition and set aside the impugned detention order dated 22.06.2020. Consequently, the detenue Illiyas Gulab Shaikh is directed to be released forthwith, unless required in any other case.

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Rule made absolute in above terms.

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Balaji G. Panchal

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Digitally signed by Balaji G. Panchal Date: 2021.03.20 11:45:34 +0530

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[MANISH PITALE, J] [S. S. SHINDE, J]

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Khurshid Liyakat Khan (Illiyas Gulab Shaikh Detenu) v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Khurshid Liyakat Khan (Illiyas Gulab Shaikh Detenu) v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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