Shri Mastan Kasim Shaikh vs The State Of Maharashtra Through ...
2001 Latest Caselaw 393 Bom

JUDGMENT

Vishnu Sahai, J.

1. Through this writ petition preferred under Article 226 of the Consti-tulion of India, the petitioner who describes himself as father of the detenu Mukhtar Mastan Shaikh, has impugned the order dated 28.6.2000 passed by the second respondent Mr. M. N. Singh, Commissioner of Police. Brihan Mumbat detaining the detenu under sub-section (1) of section 3 of the 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 28.6.2000 served on the detenu on 5.12,2000 and their true copies are annexed as Annexures A and B respectively to this petition.

2. A perusal of the grounds of detention would show that the impugned order is founded on one C. R. namely C. R. No. 83/2000 under sections 387. 504, 34 of the I.P.C. registered on the basis of a complaint dated 26.2.2000 filed by Salim Makarani at Dindoshl Police Station, Mumbal and incamera statements of two witnesses namely A and B which were recorded on 25.4.2000 and 28.4.2000 respectively.

Since in our view, a reference to the prejudicial activities of the detenu contained in the said C. R. and the in camera statements is not necessary for the adjudication of ground No. 5(vi) pleaded in the petition, on which ground alone, in our view, this petition deserves to succeed, we are not adverting to them.

3. Ground No. 5(vi) in short is that on 10.1.2001, the detenu sent a representation, addressed to the Secretary to the Government of Maharashtra, on behalf of (he State Government through the Superintendent of Mumbai Central Prison which was considered and rejected by the State Government, the rejection letter having been sent on 31.1.2001, and the State Government should satisfy this Court as to whether the said representation was considered expcditiously and independently by the State Government uninfluenced by the opinion of the Honourable Advisory Board and whether the reply was communicated to the detenu without any loss of time. In the said ground, it has been pleaded that in the event of the failure of the State Government in so satisfying this Honourable Court on the aforesaid counts, the impugned detention order would be rendered violative of Article 22(5) of the Constitution of India.

4. Ground No. 5(vi) has been replied to in two returns namely those of the Detaining Authority and of Mr. M. B. Khopkar, Desk Officer, Home Department, Government of Maharashtra, Mantralaya, Mumbai.

In para 12 of his return, the Detaining Authority has stated that the contents of the said ground pertain mainly to the State Government and he had no comments to offer.

In para 9 of his return. Mr. Khopkar has furnished a reply to the said ground. He stated that the detenu's representation dated 10.1.2001 addressed to the Secretary, Government of Maharashtra. (Preventive Detention. Home Department (Special) Mantralaya, Mumbai which was forwarded by the Superintendent, Mumbai Central Prison. Murnbai vide his letter dated 10.1.2001 was received in the department on 10.1.2001. After it was scrutinised, remarks of the Detaining Authority were called for on 11.1.2001 which were received vide letter of the Detaining Authority dated 23.1.2001. On 24.1.2001. the detenu's representation, along with the remarks of the Detaining Authority, was processed by the Desk Officer who on that very date, forwarded it to the Deputy Secretary and the latter forwarded it to the Principal Secretary (Preventive Detention) for his consideration on 25.1.2001 who on 29.1.2001 forwarded it to the Additional Chief Secretary, Home Department, Mantralaya, Mumbai (26,27 and 28th January. 2001 were holidays) who rejected the same on 30.1.2001 and on 31-1-2001, the detenu was apprised by the State Government that his representation had been rejected. Thereafter, it has been averred in the said para that the consideration of the detenu's representation was uninfluenced by the opinion of the Advisory Board.

5. Ms. Ansari, learned counsel for the petitioner, strenuously urged that a perusal of para 2 of the return of Mr. Khopkar makes it manifest that the representation of the detenu addressed to the Secretary, Government of Maharashtra (Preventive Detention) was not disposed off at the earliest opportunity as is implicit in Article 22(5) of the Constitution of India but. there has been latches in its disposal. She contended that the said para shows that remarks from the Detaining Authority were called for on 11.1.2001 but, the said remarks were received after an inordinate delay of 12 days i.e. on 23.1.2001.

Ms. Ansari contended that both the offices of the Detaining Authority and the Secretary to the Government of Maharashtra (Preventive Detention) are located in Mumbai and are situated within a radius of one Kilometre

from one another. She urged that the Detaining Authority had formulated the grounds of detention and the detention order, and there could be no justification on his part to have taken 12 days in sending his comments. She contended that this delay on his part shows that he was oblivious to the promptitude with which a representation in preventive detention matter had to be dealt with.

6. We have reflected over Ms. Ansari's contention and that of Ms. Kamath, appearing for the respondents, in whose contention, a period of 12 days delay at the hands of the Detaining Authority would not be fatal to render the detention order illegal on the ground of delay in consideration of the detenu's representation. We are constrained to observe that we do not find any merit in Ms. Kamath's contention. In our view, there was no justification for the Detaining Authority to have taken 12 days time in sending his comments.

7. In our judgment, on account of the said delay of 12 days on the part of the Detaining Authority in sending his comments, the detenu's fundamental right. Implicit in Article 22(5) of the Constitution of India, that his representation had to be disposed off at the earliest opportunity has been violated and the continued detention of the detenu has been rendered bad and illegal in law.

8. In the circumstances, we quash and set aside the impugned detention order and direct that the detenu Mukhtar Mastan Shaikh be released forthwith unless wanted in some other case and make the rule absolute.