Case Note & Summary
The petitioner, Sayed Jafar Sayed Nasir, challenged two detention orders dated 20th February 2018 and 12th March 2018 passed by the Commissioner of Police, Amravati (respondent no. 3) and the Principal Secretary to the Government of Maharashtra (respondent no. 2) respectively, under 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). The primary ground of challenge was that the detenu was not supplied with a copy of his bail application and the full text of the bail order in Crime No. 714/2017, which were documents relied upon by the detaining authority. This, according to the petitioner, violated his right to make an effective representation under Article 22(5) of the Constitution. The respondents argued that the detenu was given an adequate opportunity and that no prejudice was caused because there were other independent grounds for detention. They also invoked Section 5A of the MPDA Act, which provides for severability of grounds. The court, after hearing both sides, held that the non-supply of the bail application and the full bail order was a fatal flaw. The right to make an effective representation is a fundamental right, and the detenu must be furnished with all documents that influenced the detaining authority's mind. The court distinguished the respondents' reliance on Section 5A, stating that the failure to supply vital documents goes to the root of the right to representation and cannot be cured by the existence of other grounds. Consequently, the court allowed the petition and quashed both detention orders, directing the release of the detenu unless required in any other case.
Headnote
A) Preventive Detention - Right to Make Representation - Article 22(5) of the Constitution - Non-supply of Bail Application and Bail Order - The detenu was not supplied with a copy of his bail application and the full text of the bail order in Crime No. 714/2017, which were vital documents considered by the detaining authority. The court held that this failure deprived the detenu of an effective opportunity to make a representation against the detention order, rendering the detention orders invalid. (Paras 2-6) B) Preventive Detention - Prejudice - Section 5A 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 argument that no prejudice was caused because other grounds existed was rejected. The court held that the right to make an effective representation is a fundamental right, and non-supply of relevant documents per se vitiates the detention order, irrespective of other grounds. (Paras 5-6)
Issue of Consideration
Whether the detention orders dated 20th February 2018 and 12th March 2018 passed under 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 are vitiated due to non-supply of the bail application and full text of the bail order in Crime No. 714/2017, thereby denying the detenu an effective opportunity of making representation as guaranteed under Article 22(5) of the Constitution.
Final Decision
The court allowed the petition and quashed the detention orders dated 20th February 2018 and 12th March 2018. The detenu was ordered to be released forthwith unless required in any other case.
Law Points
- Right to make effective representation under Article 22(5) of the Constitution
- Preventive detention
- Non-supply of vital documents
- 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
- Section 5A of MPDA Act
- Prejudice test
