Case Note & Summary
The petitioner, wife of the detenu Mohammed Iqbal @ Shembdya Iqbal @ Iqbal Jogeshwari Mohammed Hussain Mandal, filed a writ petition under Article 226 of the Constitution of India seeking a writ of habeas corpus challenging the detention order dated 16.11.2004 passed under sub-section (2) of Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (M.P.A.D. Act). The detention order was for a period of one year and was served on the detenu on 26.11.2004. The detention was based on two criminal cases (C.R.s) and two in-camera statements recorded by the sponsoring authority. In both criminal cases, bail had been granted to the detenu, and he was on bail when the detention order was passed. The only ground pressed by the petitioner's counsel was that the representation made by the detenu on 26.4.2005 to the State Government through his lawyer was not considered expeditiously and diligently with proper application of mind, rendering the continued detention illegal. The State filed a reply dated 21.6.2005 through Shri Shirishkumar Mahadeo Mhatre, Under Secretary, Home Department (Special), Government of Maharashtra, explaining the timeline of consideration. The court examined the reply and found that the representation was received on 26.4.2005, but the State Government did not consider it until 21.6.2005, a delay of nearly two months. The court held that such inordinate delay in considering the representation violated the detenu's constitutional right under Article 22(5) of the Constitution, which requires that the representation be considered as soon as possible. The court noted that the explanation offered by the State was not satisfactory and that the delay was not justified. Consequently, the court allowed the petition, quashed the detention order, and directed that the detenu be set at liberty forthwith.
Headnote
A) Preventive Detention - Speedy Consideration of Representation - Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981, Section 3(2) - The detenu's representation dated 26.4.2005 was not considered expeditiously by the State Government, with the reply filed on 21.6.2005 showing no proper application of mind - Held that the delay in consideration violates the constitutional right under Article 22(5) and renders the continued detention illegal, warranting quashing of the detention order (Paras 3-4).
Issue of Consideration
Whether the inordinate delay in considering the representation made by the detenu to the State Government renders the continued detention illegal and warrants quashing of the detention order.
Final Decision
The court allowed the petition, quashed the detention order dated 16.11.2004, and directed that the detenu be set at liberty forthwith.
Law Points
- Right to speedy consideration of representation under preventive detention laws
- Delay in consideration renders continued detention illegal
- Article 22(5) of Constitution of India
Case Details
2005 LawText (BOM) (08) 77
Criminal Writ Petition No.295 of 2005
Mr. U.N. Tripathi i/b. Chandrakant Talekar for the Petitioner, Mrs. A.S. Pai, APP for the Respondents
Mr. M.N. Roy, the Commissioner of Police, Mumbai & Others
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Nature of Litigation
Writ petition under Article 226 of the Constitution of India seeking a writ of habeas corpus challenging a preventive detention order.
Remedy Sought
The petitioner, wife of the detenu, sought quashing of the detention order and release of her husband from detention.
Filing Reason
The detention order dated 16.11.2004 under Section 3(2) of the M.P.A.D. Act was challenged on the ground that the representation made by the detenu on 26.4.2005 was not considered expeditiously by the State Government.
Previous Decisions
The detention order was passed on 16.11.2004 and served on 26.11.2004. The detenu was on bail in the two criminal cases that formed the basis of the detention.
Issues
Whether the inordinate delay in considering the representation of the detenu by the State Government renders the continued detention illegal and warrants quashing of the detention order.
Submissions/Arguments
The petitioner argued that the representation dated 26.4.2005 was not considered expeditiously and diligently with proper application of mind, making the continued detention illegal.
The State, through its reply dated 21.6.2005, explained the timeline but the court found the delay of nearly two months unjustified.
Ratio Decidendi
The right to have a representation considered expeditiously is a fundamental right under Article 22(5) of the Constitution. Inordinate delay in considering the representation, without satisfactory explanation, renders the continued detention illegal and the detention order liable to be quashed.
Judgment Excerpts
It appears that only one ground is pressed by the learned Counsel for the applicant, namely that the representation made by the detenu on 26.4.2005 to the State Government through his lawyer has not been considered by the State Government expeditiously and diligently with proper application of mind and the continuous detention is illegal and the order of detention is ought to be quashed and set aside.
As reflected from the reply dated 21.6.2005, filed by one Shri Shirishkumar Mahadeo Mhatre, Under Secretary, Home Department (Special), Government of Maharashtra, it is explained by the State that on receipt of the representation, it was considered and rejected. However, the court found the delay in consideration to be inordinate and not justified.
Procedural History
The detention order was passed on 16.11.2004 under Section 3(2) of the M.P.A.D. Act and served on 26.11.2004. The detenu made a representation on 26.4.2005 to the State Government. The State filed a reply on 21.6.2005. The petitioner filed Criminal Writ Petition No.295 of 2005 before the Bombay High Court, which was heard and decided on 16.8.2005.
Acts & Sections
- Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981: Section 3(2)
- Constitution of India: Article 226, Article 22(5)
