Bombay High Court
Minakshi Amol Gedam (Wife Of Detenu) vs The District Magistrate, Wardha And ... on 30 November, 2023
Author: M.W.Chandwani
Bench: Vinay Joshi, M.W. Chandwani
2023:BHC-NAG:16614-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.591 OF 2023
Mrs. Minakshi Amol Gedam
Age 28 years, Occupation - Nil
(Wife of the Detenu)
R/o behind Sarkari Hospital,
Itwara Bajar, Wardha,
Maharashtra - 442401 ...PETITIONER
...V E R S U S...
1. The District Magistrate, Wardha.
2. The State of Maharashtra,
Through Additional Chief Secretary
to Government of Maharashtra,
Mantralaya, Home Department,
Mantralaya, Mumbai.
3. The Superintendent,
Central Jail, Amravati. ... RESPONDENTS
-----------------------------------------------------------------------------------------------
Mrs.Jayshree Tripathi, Adv. h/f Shri R.R.Vyas, Advocate for petitioner.
Shri S.S. Doifode, APP for respondents.
-----------------------------------------------------------------------------------------------
CORAM :- VINAY JOSHI AND
M.W. CHANDWANI, JJ.
ARGUMENTS WERE HEARD ON : 27.10.2023.
JUDGMENT PRONOUNCED ON : 30.11.2023.
JUDGMENT (PER : M.W.CHANDWANI, J.):
. Rule. Rule made returnable forthwith. Heard finally by
consent of the learned counsel for the parties.
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2. The petitioner challenges detention order of her son dated
02.06.2023 passed by the respondent no.1- District Magistrate,
Wardha under section 3 of the Maharashtra Prevention of Dangerous
Activities of Slumlords, Bootleggers, Drug-offenders, Dangerous
persons, video Pirates, Sand Smugglers and Persons engaged in Black
Marketing Essential Commodities Act, 1981 (Amendment of 2015)
(for short, 'MPD Act'). The petitioner also lays to challenge the order
dated 17.07.2023 passed by the respondent no.2- State of
Maharashtra.
3. Necessary facts which gives rise to present petition can be
stated as under:
A proposal was initiated to detain the detenu by invoking
provisions of Section 3(2) of the MPD Act alleging, inter alia, that the
petitioner was a dangerous person in the area falling within the
jurisdiction of Police Station, Wardha City. The detenu is involved in
dangerous criminal activities. Number of criminal cases have been
registered against him at Police Station, Wardha City from 2012 till
2021. After considering the criminal cases registered for last five
years and in-camera statement 'A' and 'B", the learned Sub-District
Magistrate held that he was subjectively satisfied that despite of
preventive actions against the detenu he is continuously indulged in
committing heinous crime and breach of orders and ultimately
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disturb the public peace and order; and held him as a 'dangerous
person' as defined under the provisions of MPD Act and passed
impugned order of detention, which is under challenge in this
petition.
4. Though, there are other grounds raised in the petition,
Mrs.Tripathi learned Counsel for the petitioner mainly relied on the
ground that the petitioner's representation was not considered by
Respondent no.1, the State Government, expeditiously, thereby
infringed his fundamental right guaranteed under Article 22(5) of the
Constitution of India. The detenu has independent constitutional
right to make his representation under Article 22(5) of the
Constitution of India requesting for his release. It was imperative on
the respondent no. 1, to consider the said representation within
reasonable dispatch and to dispose the same as expeditiously as
possible. But, in the present case, though the representation was
made on 04.07.2023 to the Superintendent of Jail, Amravati but the
State Government did not dispose of within reasonable dispatch.
There is an inordinate and unexplained delay caused by the State in
considering and deciding the representation of the petitioner dated
04.07.2023. Therefore, according to her, the detention order was
vitiated and was liable to be set aside.
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5. Per contra, Shri Doifode, learned APP appearing on behalf of
State vehemently submitted that the representation made by the
detenu dated 04.07.2023 to the Jail Authority, Amravati has been
forwarded to the State Government. The Advisory Board has given
opinion and said opinion of Advisory Board has referred to the State
Government. The Advisory Board issued notice to the detenu and
heard him through Video Conferencing and after receipt of the
confirmation order of the State Government on 17.07.2023
representation of the detenu has been rejected. According to learned
APP Shri Doifode, the representation of the petitioner was duly
considered by the State Government within possible time and
rejected it. Hence, he submitted that the petition has no merit and
required to be dismissed.
6. Since the ground of delay in considering the representation of
the detenu by the State Government is raised, therefore, few dates
are relevant for deciding the present petition. The detention order
was passed by the authority on 02.06.2023 i.e. within five days from
the date of actual detention. The order was approved by the
Government on 03.06.2023. Reference was made to the Advisory
Board on 12.06.2023. The order of detention was confirmed by the
Government on 17.07.2023. In the meantime, the detenu made a
representation dated 04.07.2023 to the Government through the
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Superintendent of Jail. The District Magistrate sent the
representation to the State Government on 10.07.2023. The
representation was decided by the State Government on 26.07.2023.
Thus, there is delay of 16 days in deciding the representation by
Respondent no.1.
7. We shall now examine the preposition of law relating to delay
in consideration and disposal of the representation of a detenu with
reference to the judicial pronouncements. There is line of the
decisions of the Supreme Court dealing with in this aspect of law,
which shall make reference to few.
8. In a decision in the case of Rama Dhondu Borade Vs. V.K.
Saraf, Commissioner of Police and others 1 the Supreme Court in para
19 has held under :
"19: The propositions deducible from the various
reported decisions of this Court can be stated thus:
The detenu has an independent constitutional right to
make his representation under Article 22(5) of the
Constitution. Correspondingly, there is a constitutional
mandate commanding the concerned authority to whom
the detenu forwards his representation questioning the
correctness of the detention order clamped upon him
and requesting for his release to consider the said
representation within the reasonable dispatch and to
dispose the same as expeditiously as possible. This
constitutional requirement must be satisfied with respect
but if this constitutional imperative is observed in
breach, it would amount to negation of the
constitutional obligation rendering the continued
detention constitutionally impermissible and illegal,
1 (1989) 3 SCC 173
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since such a breach would defeat the very concept of
liberty - the highly cherished right - which is enshrined
in Article 21 of the Constitution"
9. In the case of Mahesh Kumar Chauhan alias Banit Vs. Union of
India and others1, relied by the learned counsel for the petitioner, the
Supreme Court expressed its view in para 16, which reads thus:
"16. Now the unchallengeable legal proposition that
emerges from a host of decisions, a few of which we
have referred to above, is that a representation of a
detenu whose liberty is in peril and deprived should be
considered and disposed of as expeditiously as possible;
otherwise the continued detention will render itself
impermissible and invalid as being violative of the
constitutional obligation enshrined in Article 22(5) of
the Constitution and if any delay is occurred in the
disposal of a representation, such delay should be
explained by the appropriate authority to the satisfaction
of the Court"
10. In the case of R. Paulsamy Vs. Union of India and another2 the
Supreme Court in para 5 has held as under:
"5. Mr. Jain has placed reliance on a decision of this Court
(rendered by one of us Nanavati, J.) in Venmathi Selvam
(Mrs.) v. State of Tamil Nadu and Anr. MANU/SC/0398/1998 :
[1998]3SCR526. This Court held that though the delay was
not long, it had remained unexplained and further though the
delay by itself was not fatal, the delay which remains
unexplained would be unreasonable. It was further observed
that inspite of this well settled legal position, the State
Government failed to explain satisfactorily that it had not dealt
with the representation of the detenu as promptly as possible.
The Court found in that case that representation was dealt
with in routine manner and in view of indifference on the part
of the Government the continued detention of the detenu was
held to be illegal."
1 (1990) 3 SCC 148
2 1999 CRI.LJ. 2897
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11. In the case of Rashid Kapadia Vs. Medha Gadgil and others1 the
Supreme Court in para 13 has observed as under:
"13.It is well settled 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). Any
unreasonable and unexplainable delay in considering the
representation is held to be fatal to the continued detention of
the detenu. The proposition is too well settled in a long line of
decisions of this Court. We do not think it necessary to
examine the authorities on this aspect, except to take note of a
couple of Judgments where the principle is discussed in detail.
They are; Mohinuddin alias Moin Master v. District Magistrate,
Beed and Ors. MANU/SC/0121/1987:(1987) 4 SCC 58 and
Harshala Santosh Patil v. State of Maharashtra (2006) 12 SCC
211."
12. It will be profitable to make reference of Harish Pahwa Vs.
State of UP and others2 in para 5 the Supreme Court has held as
under:
"5. In our opinion, the manner in which the representation
made by the appellant has been dealt with reveals a sorry state
of affairs in the matter of consideration of representations
made by persons detained without trial. There is no
explanation at all as to why no action was taken in reference to
the representation on 4th, 5th and 25th of June, 1980. It is also
not clear what consideration was given by the Government to
the representation from 13th June, 1980 to 16th June, 1980
when we find that it culminated only in a reference to the Law
Department, nor it is apparent why the Law Department had to
be consulted at all. Again, we fail to understand why the
representation had to travel from table to "table for six days
before reaching the Chief Minister who was the only authority
to decide the representation. We may make it clear, as we have
done on numerous earlier occasions, that this Court does not
look with equanimity upon such delays when the liberty of a
1 (2012) 11 SCC 745
2 (1981) 2 SCC 710
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person is concerned. Calling comments from other
departments, seeking the opinion of Secretary after Secretary
and allowing the representation to lie without being attended
to is not the type of action which the State is expected to take
in a matter of such vital import. We would emphasise that it is
the duty of the State to proceed to determine representations
of the character above mentioned with the utmost expedition,
which means that the matter must be taken up for
consideration as soon as such a representation is received and
dealt with continuously (unless it is absolutely necessary to
wait for some assistance in connection with it) until a final
decision is taken and communicated to the detenu. This not
having been done in the present case we have no option but to
declare the detention unconstitutional. We order accordingly,
allow the appeal and direct that the appellant be set at liberty
forthwith."
13. Now, the unchallengeable legal proposition that emerges from
a host of decisions, a few of which we have referred to above is that a
representation of a detenu whose liberty is in peril and deprived
should be considered and disposed of as expeditiously as possible;
otherwise the continued detention will render itself, impermissible
and invalid as being violative of the constitutional obligation
enshrined in Article 22(5) of the Constitution. If any delay is occurred
in the disposal of a representation, such delay should be explained by
the appropriate authority to the satisfaction of the Court.
14. Reverting to the fact of the present case as submitted by Mrs.
Tripathi, learned counsel appearing on behalf of the petitioner, except
mere mentioning that representation was forwarded to the
Respondent no.1, State on 10.07.2023, which was received by the
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Respondent no,1. There is no explanation as to why from 10.07.2023
till 26.07.2023 the representation was not decided by Respondent
no.1. There is absolutely no explanation as to why such delay had
occurred. In the absence of any explanation wink at or skip over or
ignore such an infringement of the constitutional mandate and
uphold an order of detention merely on the ground that the enormity
of allegations made in the grounds of detention is of very serious
nature, and it will vitiate the detention order. Therefore, we have no
other option except to allow this petition on the ground that this
undue and unexplained delay is in violation of the constitutional
obligation enshrined in Article 22(5) of the Constitution of India
rendering the impugned order invalid.
15. For the foregoing reasons, we set aside the order dated
06.02.2023 passed by the respondent no.2 the District Magistrate,
Wardha, so also order dated 17.07.2023 passed by the respondent
no.1 and direct the detenu to be set at liberty forthwith, unless his
detention is required for some other cause. Accordingly, the Rule is
made absolute.
(M.W. CHANDWANI, J) (VINAY JOSHI, J.)
Wagh
