Bombay High Court
Chandrakant Alias Chandar Basu ... vs The Commissioner Of Police And Ors on 21 November, 2022
Bench: A.S. Gadkari, Prakash Deu Naik
Osk 48-Wp-1901-2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1901 OF 2022
Chandrakant Alias Chandar Basu Chavan ... Petitioner
V/s.
The Commissioner Of Police & Ors. ... Respondents
Mr. Hitesh P. Shah for Petitioner.
Mr. J. P. Yagnik, A.P.P. for Respondents-State.
CORAM : A. S. GADKARI AND
PRAKASH D. NAIK, JJ.
DATE : 21st November 2022.
ORAL JUDGMENT (Per : A. S. Gadkari, J.)
1. By the present Petition under Article 226 of the Constitution of
India, the Petitioner has prayed that, the Order of Detention bearing No.
O.W.No./Crime PCB/DET/Chavan/87/2022, dated 14th March 2022 issued
under Section 3(2) of The Maharashtra Prevention of Dangerous Activities of
Slumlords, Bootleggers, Drug Offenders, Dangerous Persons, Video Pirates,
Sand Smugglers and Persons engaged in Black-marketing of Essential
Commodities Act, 1981 (for short, "M.P.D. Act") be quashed and set-aside.
2. Heard Mr.Shah, learned Advocate for Petitioner and Mr.Yagnik,
learned A.P.P. for Respondents-State. Perused record.
Osk 48-Wp-1901-2022.odt
3. Record reveals that, by an Order dated 14th March 2022 passed by
Respondent No.1, i.e. Detaining Authority, under Section 3(2) of M.P.D. Act,
the Petitioner has been preventively detained at Nagpur Central Prison. Along
with the Detention Order, Committal Order and the Grounds of Detention of
even date, so also necessary documents have been served upon the Petitioner.
4. Though the Petitioner has taken several grounds in the Petition,
the learned Advocate for the Petitioner submitted that, the ground No.5(b) of
the Petition involves violation of Article 22(5) read with Article 21 of the
Constitution of India and the said ground be considered for deciding present
Petition. In the said ground it is stated that, the representation dated 17 th
March 2022 made by the mother of Petitioner with the Respondent No.2 i.e.
State, has not been decided within reasonable period. He submitted that, as a
matter of fact it was not decided till the date of filing of present Petition.
5. In the grounds of detention vide para Nos.11 & 12 itself, the
Petitioner was informed about his right to make representation with two
different authorities, i.e. the Commissioner of Police, Pune i.e. Respondent
No.1 and the Additional Chief Secretary, Government of Maharashtra (Home),
Government of Maharashtra, Home Department (Special), Mantralaya,
Mumbai i.e. Respondent No.2. The said two paragraphs from grounds of
detention reads as under.
Osk 48-Wp-1901-2022.odt
11. I further inform you that pending approval of this detention
order under Section 2(3) of the said Act by the State
Government, you have a right to make representation to the
Detaining Authority i.e. the Commissioner of Police, Pune, 2,
Sadhu Vaswani Road, Camp, Pune through the Superintendent
of the Jail, where you are detained. On approval of the
detention order by the State Government under Section 3(3)
of the said Act the right of representation to the Detaining
Authority automatically extinguishes.
12. You are informed that you have a right to make representation
to the State Government against the detention order and that
you shall be afforded the earliest opportunity to make such
representation. If you wish to make such representation, you
should address it to The Additional Chief Secretary (Home),
Government of Maharashtra, Home Department (Special),
Mantralaya, Mumbai - 400032 and submit it through the
Superintendent of the Jail, where you have been detained.
6. The Petitioner therefore apart from making representation to the
Respondent No.1 also made representation on 17 th March 2022 with
Additional Chief Secretary, Home Department, Maharashtra, Pune. As noted
above, it is the precise contention of the Petitioner that, the Respondent No.2
till the date of filing of the present Petition i.e. 26 th April 2022 had not
decided the said representation and therefore a specific ground No.5(b) has
been taken in the Petition to that effect.
Osk 48-Wp-1901-2022.odt
7. Mr.Shirish N. Mohod, Deputy Secretary, Government of
Maharashtra, Home Department, Mantralaya, Mumbai, has filed Affidavit-in-
Reply dated 18th July 2022 and has affirmed that, the representation made by
the mother of the detenu dated 17th March 2022 was received by his office on
21st March 2022. The pleadings in para No.2 or otherwise also, in the said
affidavit, are absolutely silent about the fact as to whether the Respondent
No.2 infact has decided the representation of the Petitioner and has
communicated its decision to him or not. It clearly appears from record that,
the representation dated 17th March 2022 made by the mother of the detenu
with Respondent No.2 has not been decided till the date of filing of the
present Petition.
8. It is the settled law and as has been held by the Hon'ble Supreme
Court in the case of Rashid Kapadia Vs. Medha Gadgil & Ors, reported in
(2012) 11 SCC 745, that the right of a person, who is preventively detained to
make a representation and have it considered by the authority concerned as
expeditiously as possible is a constitutional right under Article 22(5). That any
unreasonable and unexplainable delay in considering the representation is
held to be fatal to the continued detention of the detenu.
9. In the present case record clearly indicates that, there is
unreasonable and unexplained delay in considering the representation made
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by the mother of the Petitioner with the Competent Authority and it is fatal to
the continued detention of the detenu. In view of the above, we have no
option but to arrive at a safe conclusion that, the Detention Order bearing No.
O.W.No./Crime PCB/DET/Chavan/87/2022, dated 14 th March 2022 cannot be
sustained in the eyes of law on the above mentioned ground alone and is
accordingly required to be set-aside.
10. In the circumstances and in view of the above, we quash and set-
aside the Detention Order bearing No. O.W.No./Crime
PCB/DET/Chavan/87/2022, dated 14th March 2022 and direct that the detenu
be released from jail forthwith on production of authenticated copy of the
present Order, unless required in any other case.
11. Writ Petition is allowed and Rule made absolute accordingly.
[ PRAKASH D. NAIK, J. ] [ A.S. GADKARI, J. ]
Digitally signed
by OMKAR
OMKAR SHIVAHAR
SHIVAHAR KUMBHAKARN
KUMBHAKARN Date:
2022.11.22
15:10:32 +0530
