Prompt consideration and disposal of the detenu's representation can negate claims of illegal detention based on delay.

Headnote:
Detention - Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 - Section 3 - Ground No. 7(A) - Summary: The court dismissed a writ petition challenging the detention order under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981. The petitioner argued that the delay in considering the detenu's representation rendered the detention illegal, but the court found the ground devoid of substance based on the promptitude of the government's response.
Fact of the Case:

The petitioner challenged a detention order under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981, claiming delay in considering the detenu's representation.
Finding of the Court:

The court found the ground devoid of substance based on the promptitude of the government's response to the detenu's representation.
Issues: The main issue was whether the delay in considering the detenu's representation rendered the detention illegal.
Ratio Decidendi: The court held that the detenu's representation was promptly considered and disposed of by the government, thus rejecting the petitioner's argument of illegal detention based on delay.
Final Decision: The writ petition was dismissed, and the rule was discharged.

JUDGMENT - VISHNU SAHAI, J.:---Through this writ petition preferred under Article 226 of the Constitution of India, the petitioner Mrs. Nahida Tabassum Mohd. who describes herself as wife of the detenu Mohd. Harshad Mohd. Asraf Khan @ Rizvi has impugned the order dated 18-1-2001 passed by the first respondent Mr. M.N. Singh, Commissioner of Police, Brihan Mumbai 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. IV of 1981) (Amendment-1996).

The detention order along with the grounds of detention which are also dated 18-1-2001 was served on the detenu on 21-1-2001 and their true copies are annexed as Annexures A and B respectively to this writ petition.

2. At the very inception, we may mention that this is a second writ petition which has been preferred on behalf of the detenu in this Court. Earlier, the detenu-petitioner had preferred in this Court Criminal Writ Petition No. 155 of 2000 (Mohamed Harshad Mohmed Ashraf Khan @ Rizvi v. Mr. M.N. Singh)1, which was dismissed by a Division Bench of this Court of which one of us (Vishnu Sahai, J.) was a member, vide orders dated 20-4-2001.

It is well settled that a second writ petition by the same person or on his behalf would only be maintainable, if new grounds after the dismissal of the first writ petition come into existence. The law clearly is that if a ground which was available when the first writ petition was dismissed was not pleaded in it would be deemed to have been pleaded and deemed to have been considered by the Court on the principle of constructive res judicata.

Hence, we reject the oral prayer of the Counsel for the petitioner seeking leave to carry out amendment for incorporating certain grounds which were already existing when the first writ petition was dismissed by us.

3. We have heard learned Counsel for the parties. Mr. U.N. Tripathi, learned Counsel for the petitioner urged that a new ground which came into existence after the rejection of the first writ petition has been pleaded by him as Ground No. 7(A) in the petition. He urged that he is only pressing this ground and not the second ground pleaded in the petition, namely Ground No. 7(B) which ground admittedly was subsisting when the first writ petition was preferred by the petitioner.

4. Ground No. 7(A) in short is that on 4-5-2001, the detenu sent a representation through his lawyer addressed to the Secretary (Preventive Detention) Government of Maharashtra, Mantralaya, Bombay and so far he has not received any communication from the State Government regarding the decision taken on the said representation. The inference drawn in the ground is that the State Government has acted with delay in considering the representation and in communicating the decision to the detenu. It has been averred in the said ground that the State Government should explain the reasons for the delay in consideration of the representation of the detenu as also the delay in communicating the decision to the detenu.

At the end of Ground No. 7(A), it has been mentioned that the continued detention of the detenu is illegal and bad-in-law.

5. Ground No. 7(A) has been replied to in para 2 of the return of Mr. M.B. Khopkar, Desk Officer, Home Department (Special) Government of Maharashtra, Mantralaya, Bombay. In short, the reply is as under :---

Representation dated 3-5-2001, which date by over writing has been made as 4-5-2001, addressed to the Secretary, Government of Maharashtra (Preventive Detention) Home Department (Special) Mantralaya, Bombay was received on the same day from the Advocate of the detenu who had made it on behalf of the detenu. As the material and record was available, the said representation was scrutinised and processed by the Desk Officer and forwarded to the Deputy Secretary for his consideration on 5-5-2001. Since 6th and 7th May, 2001 were holidays, the Deputy Secretary considere

Click Here to Read the rest of this document