Case Note & Summary
The petitioner, Wasim @ Mukri A.Salar, was detained under Section 3(1) 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 (MPDA Act) by an order dated 27/02/2020 passed by the Commissioner of Police, Solapur. The grounds of detention were served on 07/02/2020. The detenu made a representation dated 12/03/2020 to the State Government, which was not considered before the detention order was confirmed. The petitioner challenged the detention order by way of a writ petition under Article 226 of the Constitution, primarily on the ground that the failure to consider the representation violated his right under Article 22(5). The court, after hearing both sides, found that the State Government had not considered the representation before confirming the detention. Relying on the principle that the right to make a representation under Article 22(5) is a fundamental right and must be considered promptly and independently, the court held that the non-consideration vitiated the detention order. The court quashed the detention order and directed the release of the detenu forthwith unless required in any other case.
Headnote
A) Preventive Detention - Right to Make Representation - Article 22(5) of the Constitution of India - Section 3(1) 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 - The detenu challenged the detention order on the ground that his representation dated 12/03/2020 was not considered by the State Government before confirmation. The Court held that the failure to consider the representation vitiates the detention order as it infringes the constitutional right under Article 22(5). (Paras 4-8)
B) Preventive Detention - Representation - Duty of State Government - Article 22(5) of the Constitution of India - The State Government is obliged to consider the detenu's representation independently and promptly before confirming the detention order. Non-consideration renders the continued detention illegal. (Paras 6-8)
Issue of Consideration
Whether the failure of the State Government to consider the detenu's representation dated 12/03/2020 before confirming the detention order under Section 3(1) of the MPDA Act renders the detention illegal.
Final Decision
The court allowed the petition, quashed the detention order dated 27/02/2020, and directed the release of the detenu forthwith unless required in any other case.
Law Points
- Right to make representation under Article 22(5) of the Constitution
- Preventive detention under MPDA Act
- Non-consideration of representation vitiates detention order
Case Details
2020 LawText (BOM) (12) 73
Criminal Writ Petition Stamp No. 4745 of 2020 (CRI. WP/ASDB/LDVC/282/2020)
S. S. Shinde, M. S. Karnik
Ms. Jayashree Tripathi for the Petitioner, Mr. J.P. Yagnik, APP for the Respondent – State
The Commissioner of Police Solapur, The State of Maharashtra, The Superintendent Yerwada Central Prison Pune
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Nature of Litigation
Writ petition challenging preventive detention order under MPDA Act
Remedy Sought
Quashing of detention order and release of detenu
Filing Reason
Detenu's representation dated 12/03/2020 was not considered by State Government before confirming detention order
Previous Decisions
Detention order dated 27/02/2020 passed by Commissioner of Police, Solapur under Section 3(1) of MPDA Act; grounds of detention dated 07/02/2020
Issues
Whether non-consideration of detenu's representation by State Government before confirmation of detention order violates Article 22(5) of the Constitution and vitiates the detention.
Submissions/Arguments
Petitioner argued that representation dated 12/03/2020 was not considered by State Government, violating constitutional right under Article 22(5).
Respondent State argued that representation was considered and rejected, but court found no evidence of consideration before confirmation.
Ratio Decidendi
The right to make a representation under Article 22(5) of the Constitution is a fundamental right. The State Government is duty-bound to consider the representation promptly and independently before confirming the detention order. Failure to do so vitiates the detention order and renders the continued detention illegal.
Judgment Excerpts
The petitioner – detenu by this petition filed under Article 226 of the Constitution of India is challenging the order of detention dated 27/02/2020 made by respondent No.1 – Commissioner of Police, Solapur under section 3(1) 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
Learned Counsel for the petitioner submitted that the representation dated 12/03/2020 of the detenu was not considered by the State Government.
The failure on the part of the State Government to consider the representation of the detenu before the confirmation of the detention order vitiates the detention order.
Procedural History
Detention order passed on 27/02/2020 by Commissioner of Police, Solapur under Section 3(1) of MPDA Act. Grounds of detention served on 07/02/2020. Detenu made representation on 12/03/2020 to State Government. State Government confirmed detention without considering representation. Petitioner filed Criminal Writ Petition Stamp No. 4745 of 2020 before Bombay High Court challenging detention order. Heard on 15/12/2020 and judgment delivered same day.
Acts & Sections
- 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: 3(1)
- Constitution of India: Article 22(5), Article 226
