Bapurao Shankar Chavan vs M.N. Singh, Commissioner Of ...
2001 Latest Caselaw 43 Bom

JUDGMENT

T.K. Chandrashekhara Das, J.

1. Heard counsel for the petitioner and the Additional Advocate General.

2. The petitioner is claimed to be a friend of detenu ShriUttam Apparao Davre who was detained under the provisions of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers. Drug Offenders and Dangerous Persons Act, 1981, by order dated 4th August 2000 passed by the Commissioner of Police, Brihan Munibai. He challenges the order of detention by way of this writ petition.

3. The aforesaid writ petition has been amended and the respondent also filed two affidavits in reply in the writ petition and the additional ground (k) has been added to the writ petition. The ground (k) states as follows:-

"The petitioner says and submits that two representations dated 19.10.2000 were submitted to the State Government addressed to the Honourable Chief Minister and Dy. C. M. by the wife of the detenu for their consideration and revocation of the detention order. The petitioner submits that so far no communication as regards to the decision taken by the State Government on the representation of the detenu has been communicated by the said authority, thereby the State Government has delayed in considering the representation of the detenu. Law is well settled that any representation of a detenu forwarded to any Competent Authority for consideration, the said authority is bound to consider the same expedltiously, diligently and independently. The State Government is called upon to explain the said delay in consideration of the representation of the detenu. The continued detention is illegal and bad in law since the right of the detenu has been infringed. The order of detention is illegal and bad in law, ought to be quashed and set aside."

4. It is curiously enough to note that when the said ground mentioned about the wife of the detenu and even the name of the wife has not been mentioned there. If the petitioner claims to be a close friend of the detenu, we are at lost to understand as to why the petitioner did not mention the name of the wife. So the bona fide of the writ petition itself has to be viewed suspiciously.

5. Apart from that as laid down in the ground mentioned above, and that the only ground pressed before us. It is tried to make out that the so called representation made by the wife of the detenu has not been expediliously disposed of and therefore the order of detention clamped on the detenu, was liable to be set aside.

6. Since the learned counsel for the petitioner pressed before us only the ground (k) we do not think it necessary to deal with the other grounds taken in the writ petition for the purpose of this judgment. After the amendment, an affidavit was filed by Shri B. S. Wankhede. Under Secretary, Home Department (Special). Government of Maharashtra. Mantralaya, in which it is contended that the allegation of the petitioner that the detenu's wife had sent a representation to the Hon'ble Chief Minister and the Deputy Chief Minister, has not received so far by the concerned officer in the Home Department. No rejoinder has been filed by the petitioner against that statement. The affidavit in-reply further shows that when the detenu was served with the order of detention, the order specifically stated that if he wants to make a representation, he can do so to the Secretary, Government of Maharashtra. The affidavit further discloses that in fact the detenu made a representation through his lawyer in time to the Secretary. Home Department, and the same has been disposed of expeditiously by rejecting the representation.

7. The case that tried to argue by the learned counsel for the petitioner is that inspite of the fact that the detenu has made a representation and the same has disposed of by the authority and that will not preclude him from making any other representation through any other close relative like brother or friends and such representation also should be considered in view of Article 22(5) of the Constitution of India. As we pointed out earlier the representation from the wife has not been received by the Chief Minister or Dy. Chief Minister, this argument by the learned counsel, is not relevant. However the learned Counsel for the Petitioner Mr. Tripathi tried to impress upon us and showed the materials which established that the representation has been sent and received by the Chief Minister and the Dy. Chief Minister. Assuming for the argument that such representation had in fact been received by the department, still we cannot agree to the submission made by the counsel for the petitioner that such representation should have been considered by the Chief Minister or Dy. Chief Minister expeditiousiy and orders are to be passed. From the arguments advanced by the counsel for the petitioner, the following points were emerged for our consideration.

8. It is not necessary that the detenu has to make a representation to the officer mentioned in the detention order because relevant section 8 only mentions that the representation shall be sent to the Government. According to the learned counsel for the petitioner relying on the rules of business of the Government, the Chief Minister, Dy. Chief Minister, who

is holding the portfolios Home and also the Secretary, Home are bound to consider the representation. He further submits that the Chief Minister or Home Minister after receiving the representation, either they should lake up the responsibility of considering themselves or they can delegate to the Secretary or to the concerned department. According to the counsel for the petitioner neither of this has been done in this case. In order to bring home his argument, he cited two decisions, one is of Supreme Court and another of this Court.

9. The learned Counsel has relied upon a decision in Raverdy Mare Germain Jules v. State of Maharashtra and others. With great respect, we find no relevancy of this judgment to the facts of this case. Of course that decision had relied on the rules of business of the Government and held that even though the detention order passed by the Home Secretary, it is incumbent on the Home Minister to consider such representation cxpcdiliously and should be disposed of. This however is not applicable in this case at all.

10. Another decision cited by the learned counsel for the petitioner is of a Division Bench of this Court rendered in Criminal Writ Petition No. 1116 of 2000 dated 18.1.2001. It is a case where the detention order stipulates that the representation if any to be made in cosonance with the Article 22(5) of the Constitution of India, to the Secretary, Government of Maharashtra, (Prevention Detention), Home Department, Mantralaya, and in fact representation was sent to Home Minister. On going through the judgment, we find that this Court has held that there is nothing illegal in considering the representation of the detenu by the Home Minister though the order shows that the representation should be sent to the Secretary. The writ petition was allowed on the ground that on facts it was revealed that there was inordinate delay in dealing the representation. We are afraid that the facts of that case is hardly applicable to the facts of this case before us.

11. The learned Addl. Advocate General Mr. Janardhanan has contended that exactly similar situation that has been emerged in this case was decided in a decision of this Court in Sameer Mohd, IIIiyas Dhangire v.R.H. Mendonca and others, (one of us T. K. C. Das J. Is a party). In that case the detention order stipulates that the representation should be made to the Government of Maharashtra (Preventive Detention), Home Department, but the representation was in fact made to the Deputy Chief Minister, Maharashtra and this Court held that the representation made by the petitioner has already been disposed of and the representation made by the father of the detenu addressed to the Chief Minister has belatedly disposed of. This Court did not intervene in that detention order, because right under Article 22(5) has already been availed by the detenu.

12. The learned counsel for the petitioner further submits that even though the representation sent on behalf of the detenu has been rejected, there is no illegality in sending the representation by the wife or other relatives and the authorities arc bound to dispose of the representation as diligently and expeditiously as mandated by the Constitution of India. We cannot agree to the submission, Article 22(5) offorded an opportunityl

to the detenu to make a representation to the Government, so that the case of the detenu can be reappraised by the Government and the Government can scrutinise the legality or otherwise of the detention order. But that opportunity cannot be repeated by the detenu or any other close relative of detenu as contended by the Counsel for the petitioner, by any number of heirs. If that be so that will be an endless process. In fact this sort of argument has been rejected by the Full Bench of Patna High Court in Vikas Chandra v State of Bihar. The Full Bench has noted that clause (5) of Article 22 stipulates the constitutional right of making a representation against an order of detention is correlated to the constitutional obligation of the authority to communicate the grounds upon which the order rests and Full Bench has also noted that this right of the detenu and obligation of the State Government which are not to be isolated or separated from each other or to be construed in a vacuum. In paragraph 14 the Full Bench has observed thus :

"Thus it seems to follow on principle, the language of the Statute and from the precedents that the word "representation" in Cl. (5) of Art. 22 of the Constitution (and the States corresponding to the same ) has now come to acquire the status of a term of art. We are here concerned stricto sensu with the specific right of representation conferred bythe Constitution on the detenu and not with any and every complaint or representation made by any one of his relations and friends to protest against such detention. Therefore for reasons of terminological exactitude, it is necessary to notice that in this context it means specifically the representation originally made by the detenu himself after the service on the grounds of detention and challenging the same. This right is afforded in terms to "him", that is to the detenu. Though this may not be conclusive, it deserves notice that the Statute does not say that such representation may be made by any one of his friends or relatives. This appears to be so because, as noticed earlier, since the right is correlated to the grounds of detention and the detenu alone is entitled to be served with such grounds and not any of his friends or relatives. To put it negatively, a person who has not been served with the grounds of detention has no corresponding right to make this representation. Consequently, friends and relatives in their own right are not visualized and would not have the privilege of making the Constitutional or Statutory representation, to which alone the mandate of expeditious disposal attaches, Equally it calls for notice that the Statute entitles the "making a representation against the order". This cannot be extended to making a series of unlimited representations either by the detenu himself or his friends and relatives in their own right on the other."

13. In view of this we find no merit in this writ petition. The representation made by the detenu has already been disposed of by the authority, which is not in dispute. Therefore we are not satisfied by the contention raised by the learned Counsel for the Petitioner that the representation of the wife of the detenu was not properly and expeditiously dealt with. Moreover in this case the fact is that any such representation has been sent by wife, itself is in controversy.

14. In the result the writ petition is dismissed. Rule is accordingly discharged.

15. No order as to costs.

16. Certified copy expedited.