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2015 Supreme(Bom) 735
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S. OKA & A.K. MENON, JJ.
Chanda Birju Garunge – Appellant
Versus
The State of Maharashtra & Others – Respondent
Criminal Writ Petition No. 4840 of 2014
Decided on : 17-02-2015
For the Petitioner:Aisha Mohammed Zubair Ansari along with Nasreen Ayubi, Advocates.
For the Respondents: J.P. Yagnik, APP.
Headnote:Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offender and Dangerous person and Video Pirates Sand Smugglors and persons Engaged in Black Marketing of Essential Commodities Act, 1981 - Section 3-Constitution of India, Article 22(5)-Preventive detention- Validity of.-Where there was much delay in disposing the representation made by accused-petitioner on ground of illegal preventive detention, and no explanation was given in impugned order, in such circumstances, the constitutional right of detenue was violated and that is when preventive order was quashed.
There is one more aspect. On 27th November, 2014, the same Additional Chief Secretary (Home) passed an order calling for the remarks of the Detaining Authority. Though the Detaining Authority received a letter calling for parawise remarks on 28th November, 2014, the remarks were not sent from the Sponsoring Authority. This is another crucial aspect for the delay. Firstly, necessity of calling for report from the Detaining Authority is not explained. Secondly, the necessity of the detaining Authority calling for the report from the Sponsoring Authority is not explained. Thus, there is an unexplained delay in dealing with the representation made by the petitioner. Apart from the delay, the constitutional rights of the detenu are violated as the representation made by the detenu was kept pending till confirmation of the order of preventive detention by the State Government. Thus, the petition must succeed on both the grounds.
1. By this Petition under Article 226 of the Constitution of India, the Petitioner has taken an exception to the order of preventive detention passed under Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 ( for short “the said Act of 1981”). The Petitioner is the mother of the detenu. The first ground canvassed by the learned counsel appearing for the Petitioner who is the mother of the detenu is that there is a gross delay on the part of the State Government in deciding the representation made against the order of preventive detention. The learned counsel appearing for the Petitioner is relying upon three different representations. The first representation is a common representation made by the detenu to the Chairman of the Advisory Board and to the State Government. The second representation made by the Petitioner was in the form of a letter dated 19th December 2014 received through the Superintendent of Nashik Road Central Prison where he has been detained. The learned counsel appearing for the Petitioner is relying upon a third representation which, according to her, was forwarded by the detenu’s wife. There is a serious dispute regarding the receipt of the third representation.
2. On the earlier date, after perusing the affidavits, on the consideration of the submissions canvassed by the learned counsel appearing for the Petitioner regarding the delay in disposing of the representations, we had called upon the learned APP to produce the relevant files. Accordingly, photocopies of the relevant files have been produced for the perusal of this Court.
3. As far as the representation made by the detenu to the Chairman of the Advisory Board and to the State of Maharashtra is concerned, it appears that the same was forwarded by the Advisory Board to the State of Maharashtra along with a letter dated 21st November 2014. There is an affidavit filed by Shri S.J. Sovitkar, the Deputy Secretary of the Government of Maharashtra, Home Department (Special), Mantralaya, Mumbai. The said affidavit records that the report of the Advisory Board was received by the State Government on 21st November 2014. In Paragraph 2 of the affidavit, there is a specific statement made that the said representation was received in the Desk along with the report of the Advisory Board dated 21st November 2014. Thus, on conjoint reading of the statements made in Paragraph 2 and Paragraph 5(vii) of the said affidavit, it appears that the representation was received by the State Government on 21st November 2014 along with the report of the Advisory Board. Perusal of the file produced before this Court shows that the same was put up for the first time before an officer of the State Government on 26th November 2014. There is a remark on the file made by the Additional Chief Secretary (Home) on 27th November 2014 recording that the remarks of the District Magistrate who is the Detaining Authority should be called for. Though this endorsement is signed on 27th November 2014, a letter was dispatched to the District Magistrate on 26th November 2014 calling upon her to furnish parawise comments. Parawise comments were dispatched on 2nd December 2014 by the District Magistrate which were received on 5th December 2014 by the State Government. The concerned Authority of the State passed an order of rejection on 6th December 2014.
4. We have perused the affidavit of Mrs. Rubal Aggrawal, the District Magistrate, Jalgaon, who is the Detaining Authority. It is stated in Paragraph 16 of the affidavit that the letter dated 26th November 2014 of the State Government was received by her on 28th November 2014. She has stated that parawise comments were collected from the Sponsoring Authority and the same were sent to the State Government on 2nd December 2014.
5. The learned counsel appearing for the Petitioner submits that though the State Government had
