Arjundev Khemchand Dureja An ... vs The State Of Maharashtra, Through ...
2002 Latest Caselaw 972 Bom

JUDGMENT

D.G. Deshpande, J.

1. Petitioner is the father of the detenu. Detenu is detained under COFEPOSA. Order of detention is dated 23.01.2002. It was served on the detenu on 22.02.2002. In the petition number of grounds have been taken for challenging the detention. However, we are considering only one submission of Mr. Maqsood Khan appearing for the detenu to allow this petition and hence we are not considering the other submissions made by him.

2. First contention that was raised by Mr. Maqsood Khan is as per amended ground (XIII) i.e. the representation of the detenu dated 6.4.2002 was not forwarded by the State Government to the Central Government and this has resulted in denying the detenu his rights under Article 22(5) of Constitution of India. Mr. Maqsood Khan relied upon following judgments of the Supreme Court :-

(1) [Amir Shad Khan v.

L. Hmingliana and others];

(2) 1993 Supp (2) SCC 341 [Rumana Begum v.

State of Andra Pradesh and another];

(3)2001 SCC (Cri) 289 [R. Keshava v.

M.B. Prakash and others]

3. In Amir Khans case the detenu was detained under COFEPOSA Act. He was informed that he can send representation to various authorities through jail. The detenu made a representation to the detaining authority and made a prayer to make copies of his representation and sent it to the State Government and Central Government. The representation was not considered by the State Government and rejected and, about not sending the representation to the Central Government as requested by the detenu, the Supreme Court held that on account of the approach of the detaining authority and the State Government the detenu is robbed of his right to have his representation considered by the Central Government and, therefore, the detention order was quashed.

4. In Rumana Begums case there was a delay in disposing of the representation of detenu. The delay was unexplained and unreasonable and, therefore, the detention was quashed. This judgment is not applicable to the present case because no ground of delay is raised nor does it arise.

5. In R. Keshavas case the detenu was apprised of his right to make representation to the different authorities. The detenu did not make any request to the Advisory Board to send the representation along with its report to the Government and, therefore, the Supreme Court held that Board was not oblige to furnish the representation and whole record along with the report to the Government. The Supreme Court, in para-6, has also observed and held as under :-

"Where despite intimation, the detenu omits to exercise his constitutional right, he cannot, thereafter, allege its violation on the ground that the authorities should have made an inquiry to ascertain as to whether he had made any representation to any person, authority or the Board."

6. As against this it was contended by Ms. Kamat, the learned APP appearing for the State, that in the instant case, in the grounds of detention itself, the detenu was made aware of his rights to make representation to different authorities as per Paras 11, 12 and 13 of the grounds of detention. The addresses of the authorities were also given and the detenu was specifically informed in para-11 about his right to make representation to the detaining authority; to the State Government in para-12 and; to the Central Government in para-13. But the detenu deliberately and intentionally did not send any representation to the Central Government and, therefore, now he cannot be permitted to make any grievance out of his own fault.

7. As against this, it was submitted by Mr. Maqsood Khan that in the representation sent by the detenu to the Advisory Board; to the Additional Chief Secretary, Home Department, Mantralaya, Mumbai; to the Principal Secretary to the Government of Maharashtra and; to the detaining authority. There was prayer that the State Government should forward a copy of this representation to the Central Government for its consideration and revocation and, therefore, when the prayer is made it was obligatory upon the Statement Government to forward the copy of the representation to the Central Government and, since this has not been done the detention order is liable to be vitiated.

8. Mr.Maqsood khan also contended that in para (x) of the said joint representation sent by the detenu to the three authorities mentioned above, the detenu has given an explanation why he was not able to send the representation to the Central Government and in view of this explanation it was still more obligatory on the State Government to send the copy of this representation to the Central Government.

9. As against this, Ms. Kamat, learned APP, contended that firstly, the explanation in para (x) does not say anything about inability of the detenu to send the representation to the Central Government. Secondly, she contended that if the detenu could send the joint representation to the three authorities mentioned above, nothing prevented him from sending the representation to the Central Government separately. But this is not done deliberately by the detenu to take advantage of his wrong. Lastly she contended that the so called explanation in para (x) is totally false and was liable to be rejected and, as such consequently the State Government was not under obligation to send the copy of the representation to the Central Government.

10. We have given our anxious consideration to the submissions made by Mr. Maqsood Khan and learned APP Ms. Kamat. In para (x) of the joint representation the detenu has stated that he was unable to send the said representation earlier through the Superintendent of Prison as directed in the grounds of detention because the petitioner was not able to contact his relatives to take legal advice in the matter from the prison.

11. In the grounds of detention in para-11; 12 and 13, which was served upon the detenu on 22.02.2002, the detenu was specifically informed of his right to make representation to the different authorities separately. The detenu was informed that instead of sending his representation to the different authorities through Superintendent of jail, directly hand over the joint representation to the Advisory Board on 6.4.2002 i.e. after about one and half months. The explanation given by him in para (x) is about delay and nothing-else. From the joint representation, copy of which was made available to us by Mr. Maqsood Khan, it is clear that the representation is got prepared by the detenu through the legal aid i.e. through his advocate. Therefore, the explanation for the delay that the detenu was unable to contact his relatives to take legal advice in the matter from the prison is appeared to be imaginary and false. In fact, the question of delay in sending the representation is irrelevant for this petition. The facts remains that not a word is stated by the detenu in his so called explanation in para (x) as to why he was not able to send that representation separately to the Central Government.

12. From the representation it is clear that the detenu was aware that he has to make representation to different authorities. He has prepared joint representation for the Advisory Board; for Additional Chief Secretary and for the detaining authority. But nothing is stated anywhere in the said representation by the detenu as to why he is not sending the representation separately to the Central Government.

13. As against this, Ms. Kamat also placed reliance upon R. Keshavas case reported in 2001 SCC (Cri) 289, particularly para-6; 12; 14 and 17, and contended that when the detenu was made aware of his constitutional right to make representation and was also informed about the authorities to which he could make representation as per para-11, 12 and 13 of the grounds of detention and the detenu deliberately and intentionally omits to send the representation to the Central Government, then he has no right to challenge the detention order on the ground of non-consideration of his representation by the Central Government. Secondly she contended that the joint representation was addressed to three authorities which clearly shows that the detenu was aware as to the authorities to which the representation was required to be made, even then he chose not to send any representation to the Central Government. Thirdly, she contended that even though the detenu was required to send the representation through Superintendent of jail, he did not do so, but hand over the representation to the Advisory Board directly. And lastly, she contended that when the detenu deliberately avoided to send the representation or addressed to the Central Government, the State Government was not bound to send the representation to the Central Government and, according to her, the judgment of the Supreme Court in [Amir Shad Khan v. L. Hmingliana and others] is of no help.

14. However the fact remains that in his joint representation the detenu has made a prayer that his representation be sent to the Central Government and, therefore, it was obligatory on the State to send said representation to the Central Government. No doubt that the detenu has deliberately and intentionally avoided to send his representation to the Central Government. But in view of the judgment of the Supreme Court in [Amir Shad Khan v. L. Hmingliana and others] relied upon by Mr. Maqsood Khan and referred to above the continued detention of the detenu has to be rendered illegal and liable to be quashed and set aside. Hence we pass the following order.

ORDER

Petition is allowed. Continued detention bearing No. PSA 1101/45/SPL 3(A) dated 23rd January 2002 issued by Ranjana Sinha, the Secretary (Preventive Detention) to the Government of Maharashtra, Home Department, Mantralaya, Mumbai 400 032 against the detenu Nareshkumar Arjundev Dureja under Section 3(1) of the COFEPOSA Act is rendered illegal. Detenu be released forthwith, if not required in any other case. Rule disposed of accordingly.