Smt. Rekha Pradeep Nandoskar vs Shri R.H. Mendonca, Commissioner ...
2001 Latest Caselaw 226 Bom

JUDGMENT

Vishnu Sahai, J.

1. Through this writ petition preferred under Article 226 of the Constitution of India, the Petitioner who styles herself as the wife of the detenu Pradip @ Bandya Dayal Nandoskar, has impugned the detention order dated 17.3.2000 passed by the 1st Respondent Mr. R. H. Mendonca. Commissioner of Police, Brihan Mumbai, detaining the detenu under subsection 1 of Section 3 of 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 which are also dated 17.3.2000 was served on the detenu 29.3.2000 and their true copies are annexed as Annexures A and B respectively to this petition.

2. A perusal of the grounds of detention shows that the impugned order is founded on two C.Rs. viz. (i) C.R. No. 264/99 under Sertions 452 and 324 of the I.P.C. registered at R.A.K. Police Station on the basis of a complaint dated 25.9.99 filed by one Sanjay Salunke and (ii) C.R. No. 266/99 under Sections 324 and 504 of the I.P.C. registered at R.A.K. Police Station on the basis of & complaint dated 26.9.99 filed by one, Darpan Thale, one L.A.C. viz. L.A.C. No. 5082/99 under Sections 4, 25 of the Arms Act read with Section 37(a)(I) and 135 of the Bombay Police Act registered at R.A.K. Marg Police Station and two in camera statements viz. of witnesses viz. A and B. which were recorded on 14.1.2000 and 15,1.2000 respectively.

3. We have heard learned counsel for the parties. Since in our view a reference to the prejudicial activities of the detenu contained in the aforesaid C.Rs., L.A.C. and the in camera statements is not necessary for adjudicating upon the solitary ground pressed by learned counsel for the Petitioner viz. ground 9A, we are not adverting to them.

4. We may straight away mention that this is a second Writ Petition against the impugned detention order; the first having been dismissed by a Division Bench of this Court comprising of G. D. Patil and R. N. Lodha, JJ. vide their judgment dated 28.8.2000. Since ground 9A was not subsisting on the date on which the first Writ Petition was dismissed we have entertained this Writ Petition.

5. Ground 9A in short is that the Petitioner sent a representation, dated 11.12.2000, telegraphically to the State Government and so far she has not received any communication regarding the fate of the said representation and since the said representation has not been considered expeditiously the continued detention of the detenu is illegal and bad in law.

6. Ground 9A has been replied to in para 2 of the return of Mr. M. B. Khopkar, Desk Officer. Home Department (Spl.) Mantralaya, Mumbai. In short it has been averred in the said paragraph that the detenu had been informed that he had a right to make a representation to the State Government and if he wished to make a representation it should be addressed to the Secretary to the Government of Maharashtra (Preventive Detention), Home Department. Mantralaya, Mumbai 32 but with mala fide intention the said representation has been addressed to the Governor of Maharashtra. It has also been averred in the said paragraph that the said representation (telegram) dated 11.12.2000 was received by the concerned department in Mantralaya on 14.2.2001: on 15.2.2001 the remarks of the Detaining Authority were called for; from 16.2.2001 to 19.2.2001 there were holidays; the remarks from the Detaining Authority were received on 20.2.2001; thereafter the representation was scrutinized and processed through the Desk Officer, to the Deputy Secretary; the Deputy Secretary forwarded it to the Principal Secretary (Preventive Detention) on 21.2.2001, who on 23.2.2001 forwarded it to the Additional Chief Secretary (Home), who under the rules of business of Government of Maharashtra was empowered to consider it; and on 24.2.2001 the Additional Chief Secretary (Home) carefully considered and rejected the said representation. It has also been averred in the said paragraph that 25.2.2001 was a holiday, being Sunday: the file was received back in the department on 26.2.2001; and the rejection reply was given to the detenu and his wife vide Government letter dated 26.2.2001.

6A. In para 2 of Mr. M. B. Khopkar's affidavit it has also been averred that the Office of the Governor of Maharashtra receives thousands of letters/applications/telegrams and other correspondence every day and it is routinely sorted out into various categories depending on the noting on the said correspondence i.e. 'immediate, most urgent, urgent, time bound' etc. It has further been averred in the said paragraph that the detenu's representation was sorted out through routine course. Thereafter it was processed by various personnel and when it transpired that the concerned Department was in Mantralaya, it was forwarded to Mantralaya.

In addition it has been mentioned in paragraph 2 that the staff in the office of the Secretary to the Government of Maharashtra (Preventive Detention) Home Department (Special). Mantralaya, Mumbai has been specifically trained in the procedure relating to representations of the detenu and had the representation been addressed to the Secretary of the said department it would have been processed expeditiously.

7. Mr. U. N. Tripathi learned counsel for the Petitioner strenuously urged that since the Supreme Court in its decision in Rumana Begum v. State of Andhra Pradesh and Anr., has held that a representation to the Governor must be treated as one being made to the State Government and since at the level of the Governor there was a delay of two months and two days in the representation being forwarded to Mantralaya, which delay in his contention was inordinate and in total disregard of the promptitude with which a preventive detention representation should have been forwarded to Mantralaya, the impugned detention order warrants to be quashed.

8. Mrs. Tahilramani, learned Public Prosecutor does not dispute the ratio laid down in Rumana Begum's case (supra) but she made a dual submission before us.

9. She firstly contended that the delay in the representation being transmitted from the Governor's office to Mantralaya has been plausibly explained in para 2 of the affidavit of Mr. M. B. Khopkar.

After perusing the original file of Governor's office Mrs. Tahilramani stated before us that the Petitioner's representation dated 11. 12.2000 was received in the Governor's office on 16.12.2000. She urged that, as mentioned in Mr. Khopkar's return, it was received in Mantralaya on 14.2.2001. She made no bones in admitting that from the file of the Governor's office it is not manifest as to when it was sent to Mantralaya,

10. Mrs. Tahilramani contended on the basis of the averments made in para 2 of the return of Mr. M. B. Khopkar that the delay in the representation being transmitted from the Governor's office to Mantralaya should be examined in the background that the detenu had been informed that in case he wished to make a representation he should address it to the Secretary to the Government of Maharashtra (Preventive Detention) Home Department (Special), Mantralaya, Mumbai, but instead with the oblique motive of ensuring delay in the consideration of the representation the Petitioner deliberately sent it to the Governor's office. She also urged that the said delay should be examined in the background of the fact that unlike the staff of the Secretariat of the Government of Maharashtra (Preventive Detention) Home Department (Special) Mantralaya, Mumbai, that of the

Governor's office was not trained in dealing with the procedure relating to representations of the detenu.

We make no bones in observing that if the averments made in para 2 of Mr. Khopkar's affidavit are examined in this perspective there has been no inordinate and callous delay on the part of the Governor's office in transmitting the said representation to Mantralaya. As we have seen earlier Mr. Khopkar in para 2 of his affidavit has stated that the office of the Governor of Maharashtra receives thousands of letters/applications/telegrams and other correspondence etc., every day and the same is sorted out into various categories, depending on the noting on the said correspondence i.e. 'immediate, most urgent, urgent, time bound' etc.

Since, as urged by Mrs. Tahilramani, the Governor's office could not have conceived that a preventive detention representation could have been sent to it, it was oblivious to the urgency with which it was required to be forwarded.

10A. We find merit in the first submission of Mrs. Tahilrarnani.

11. Secondly Mrs. Tahilrarnani contended that the representation sent by the Petitioner was a nullity in law and consequently, even assuming that there has been some delay in its being dispatched from the Governor's office to Mantralaya, the continued detention of the detenu would not be vitiated.

Mrs. Tahilrarnani based her submission on two decisions viz. those rendered in P. M. Abdul Kadar v. The Union of India and Ors., by a Division Bench of this Court and that of a Division Bench of the Allahabad High Court in Asfaq v. State of U. P. and Ors., respectively.

She urged that the ratio laid down in them is that either the detenu should exercise the right to make a representation himself or in case he chooses to delegate it to someone else, the latter person in the representation should specifically mention that it is at the behest of the detenu that he/she is making the representation.

In P. M. Abdul Kadar's case (supra) one of us (Vishnu Sahal, J.) was a party. Mrs. Tahilrarnani invited our attention to paras 8 and 26 of the said decision. She urged that it is manifest from a perusal of para 8 that the representation dated 12th January, 1994 was addressed to the State Government for revoking the order of detention but the same was not considered on the ground that the authorities concerned took the view that the Petitioner had not been authorized by the detenu to make the representation on his behalf.

Thereafter Mrs. Tahilramani took us through para 26 wherein this Court held that if a person makes a representation claiming to be a friend or a relation of the detenu and has not been authorized by him, then the authorities are not bound to consider it because the law does not enjoin that they should consider representation made by any Tom, Dick and Harry.

In Asfaq's case (supra) Mrs. Tahilramani took us through para 7. The said paragraph reads thus :

"7. Learned counsel then submitted that apart from the representation dated 18.9.1983 made by the Petitioner, his father also had made another representation on 17.10.1983. A copy of the representation made by Petitioner's

father has been filed as Annexure 'VI' to the writ petition. According to the Petitioner, the representation made by the father was never considered by the State Government and this omission on the part of the State Government renders his continued detention invalid. In the case of Awadh Kumar Shukla v. Adhikshak, Kendriya Karagar, Nairn, Allahabad, 'a Division Bench of this Court has, after noticing the scheme underlying the National Security Act, 1980, observed that the provisions contained therein do not carry any such implication that the Central or the State Government, as the case may be, is bound to take into consideration the representation made by any person other than the detenu and to dispose of the same expeditiously, Reading of any such implication in the section is likely to make the task of the Government difficult and it may be flooded with all types of representations made by so many unconnected persons and the detenu would get an advantage even if there is some delay on the part of the Government in considering any of such representations. It was, however, clarified that for the purpose of the Act a representation can be said to have been made by a detemi not only when he makes the same personally but also when somebody makes it under his instructions and on his behalf. In the Instant case, there is nothing in the representation made by the Petitioner's father to show that the said representation had been made by him either under instructions from the Petitioner or on his behalf. In the circumstances. Petitioner's continued detention does not get vitiated merely because the State Government has not proceeded to dispose of the said representation expeditiously."

Mrs. Tahilramani urged that a perusal of the said paragraph makes it explicit that where a representation is not made by the detenu himself but is made by another person and the representation does not mention that it has been made at the behest of or on instructions of the detenu the authority to whom the representation is made is under no obligation to consider it.

12. The thesis of Mrs. Tahilramani's submission is that since the representation dated 11.12.2000 was not made by the detenu and in the same it has not been mentioned that it was made at the behest or instructions of the detenu the said representation was a nullity in law and the circumstance that it was transmitted from Governor's office to Mantralaya after an inordinate delay would not vitiate the continued detention of the detenu.

13. Mr. Tripathi, learned counsel for the Petitioner, on the converse strenuously urged that a perusal of the representation dated 11.12.2000 irresistibly leads to the inference that it was sent by the Petitioner, who is the wife of the detenu, at the behest of the latter. Mr. Tripathi urged that such an inference is probabilised by the contents of the representation itself. A true copy of the said representation" is annexed as Annexure "F" to the Petition and we are extracting it verbatim below :

"11 December, 2000.

To

    Hon'ble Governor

    State of Maharashtra

    Raj Bhavan, MUMBAI.

Subject : Representation against the Order of detention dt. 17.3.2000 under M.P.D.A. Act in respect of my husband Shri Pradeep @ Bandya Nandoskar who is kept at Nasik Central Prison.

Respected Sir,

1. With due honour and respect I submit following for consideration and order for revocation of detention order.

2. My husband has been falsely implicated in criminal cases by Bombay Police. Please order for inquiry to know the truth. The allegations made in the grounds of detention and in camera statements arc false.

3. My husband has been already in custody for more than 8 months. The Judicial Authority has not considered the Petition properly and rejected.

4. I am suffering since living along with children and with financial trouble.

5. The Detaining Authority in passing the Order and the State Government in confirming the Order has not applied mind to the case.

6. Kindly consider the case and order for release of my husband abovenamed detenu.

Yours faithfully,

Sd/-            

(Mrs. REKHA P. NANDOSKAR) Wife of Detenu.

From

Mrs. Rekha Pradeep Nandoskar,

Residing at Navhind Jagruti Mandal,

House No. 869, Wadala,

Mumbai."

Mr. Tripathi urged that the mention of the date of the detention order, the circumstance that the representation related to a detention under the M.P.D.A. Act, the circumstance that in it, it has been mentioned that the averments in the grounds and the in camera statements are false and it was in respect of the husband of the Petitioner Pradeep @ Bandya Nandoskar (detenu) show that the detenu must have asked the Petitioner to make it.

14. We now propose examining the second submission canvassed by Mrs. Tahilramani and the submissions made by Mr. U. N. Tripathi, learned counsel for the Petitioner to counter it.

Article 22(5) of the Constitution of India reads thus :

"22(5). When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order."

A perusal of the said Article 22(5) would show that the right to make a representation at the earliest opportunity against a detention order is vested in the detenu.

Since by virtue of the said provision the right to make a representation at the earliest opportunity is vested in the detenu it follows a logical imperative that if the detenu delegates it or assigns it to some other persons then it should be manifest from the representation made by such person that he/she is preferring the representation at the behest or instance of the detenu.

15. We make no bones in observing that in the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers. Drug Offenders and Dangerous Persons Act, 1981, there is no provision which warrants that the State Government is bound to take into consideration a representation made by any person other than the detenu and to dispose of the same expeditiously.

16. In our view when the requirement of law is that either the detenu should himself make a representation or if it is made by someone else on his behalf it should be reflected in the representation itself that it has been made at the instance of the detenu, and in a case such as the instant, where the representation is said to have been made on behalf of the detenu and it has not been mentioned therein that it has been made at the behest of the detenu no inference, that it was made at the instance of the detenu can be drawn.

17. For the said reasons in our view the representation made by the petitioner (wife of the detenu) is a nullity in law and that being so the Slate Government was under no obligation to consider it.

18. The mere circumstance that it has been considered belatedly would not vitiate the continued detention of the detenu. The same in our judgment would only be vitiated by a valid representation; a representation which is permitted by law and is in consonance with law.

19. The view which we have taken is vindicated by the two decisions cited by Mrs. Tahilramani, referred to by us earlier.

20. Mr. Tripathi also urged that the submission of Mrs. Tahilramani that the representation was a nullity in law is an after thought and has been canvassed because there has been an inordinate delay in its disposal. He contended that if the authorities actually thought it to be so they should not have considered the same.

We make no bones in observing that we do not find any merit in this submission. In our view a legal contention; especially one which goes to the root of the matter, can be raised at any time. And the circumstance that it has been raised belatedly would be no impediment in the way of the Court accepting it, if it finds it to be plausible.

21. For the said reasons we find merit in the submission of Mrs. Tahitramani and in our view ground 9A is devoid of substance.

22. Since ground 9A is the only ground, which has been pressed by the counsel for the Petitioner, and we find no merit in the same we dismiss this Writ Petition and discharge the rule.

Issuance of certified copy is expedited.