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 afforded an effective opportunity of making a representation before the detention order was passed, as he was not supplied with his bail application and the full text of the bail order passed in his favour in Crime No. 714/2017. The petitioner argued that these documents were vital for him to make a meaningful representation against the detention. The respondents contended that appropriate and effective opportunity of hearing was granted, and that no prejudice was caused to the petitioner by the non-supply of these documents. They further argued that there were several other grounds unconnected with Crime No. 714/2017 that justified the detention, and that Section 5A of the MPDA Act, which provides for severability of grounds, would cure any defect. The court, after hearing both sides, held that the non-supply of the bail application and the full text of the bail order in Crime No. 714/2017 violated the petitioner's right to make an effective representation under Article 22(5) of the Constitution. The court noted that these documents were relevant and their non-supply prevented the detenu from effectively challenging the detention order. The court rejected the respondents' argument that Section 5A of the MPDA Act could cure this constitutional violation, as the right to make a representation is a fundamental right and its breach cannot be remedied by a statutory provision. Consequently, the court quashed and set aside both detention orders and directed the release of the petitioner forthwith.
Headnote
A) Preventive Detention - Right to Make Effective Representation - Article 22(5) of the Constitution of India - Non-supply of Bail Application and Bail Order - The detenu was not supplied with his bail application and the full text of the bail order in Crime No. 714/2017, which were vital documents for making an effective representation against the detention order. The court held that this omission violated the detenu's constitutional right under Article 22(5) and vitiated the detention orders, despite the existence of other grounds and the applicability of 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 (MPDA Act). (Paras 2-5) B) Preventive Detention - Section 5A of MPDA Act - Severability - The court held that Section 5A of the MPDA Act, which provides for severability of grounds, cannot cure a violation of the fundamental right under Article 22(5) when the detenu is denied the opportunity to make an effective representation due to non-supply of relevant documents. The right to make a representation is a constitutional right, and its breach cannot be remedied by statutory provisions. (Para 5)
Issue of Consideration
Whether the non-supply of the bail application and the full text of the bail order in Crime No. 714/2017 to the detenu violated his right to make an effective representation under Article 22(5) of the Constitution, thereby rendering the detention orders invalid.
Final Decision
The court allowed the petition, quashed and set aside the detention orders dated 20th February 2018 and 12th March 2018, and directed the release of the petitioner forthwith.
Law Points
- Right to make effective representation under Article 22(5) of the Constitution
- Non-supply of vital documents vitiates preventive detention
- Section 5A of MPDA Act cannot cure violation of constitutional right
- Prejudice is presumed when opportunity of representation is denied
