Case Note & Summary
The petitioner, Arif Amin Shaikh, was detained under Section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (MPDA Act) by an order dated 29th March 2004. He was arrested on 30th March 2004 and lodged at Nashik Road Central Prison. On 1st April 2004, the petitioner made a representation through his advocate, which was forwarded to the detaining authority on the same day. However, on 6th April 2004, the State Government approved the detention. Subsequently, on 24th April 2004, the detaining authority informed the petitioner's advocate that the representation could not be considered because the detention had already been approved by the State Government prior to receipt of the representation. The petitioner challenged his continued detention on the ground that the detaining authority failed to consider his representation before the approval, which violated his constitutional right under Article 22(5). The court considered the sole issue of whether the failure to consider the representation vitiated the continued detention. The petitioner argued that the representation was not considered at all, while the respondents contended that since the approval had already been granted, there was no need for separate consideration. The court held that the detaining authority was duty-bound to consider the representation independently and before the State Government's approval. The failure to do so rendered the continued detention from 6th April 2004 illegal. The court allowed the petition, quashing the detention order insofar as it related to the period after 6th April 2004, and directed the petitioner's release unless required in any other case.
Headnote
A) Preventive Detention - Right of Representation - Article 22(5) of Constitution - Section 3(1) of MPDA Act - Failure to Consider Representation - The detenu made a representation on 1st April 2004 which was forwarded to the detaining authority on the same day. The detaining authority did not consider it and instead informed the detenu's advocate on 24th April 2004 that it could not be considered as the State Government had already approved the detention on 6th April 2004. Held that the failure to consider the representation before the approval by the State Government vitiates the continued detention from 6th April 2004 onwards. (Paras 1-4)
Issue of Consideration
Whether the continued detention of the petitioner under the MPDA Act is vitiated due to the failure of the detaining authority to consider the representation made by the detenu before the State Government approved the detention.
Final Decision
The petition is allowed. The continued detention of the petitioner with effect from 6th April 2004 is quashed and set aside. The respondents are directed to release the petitioner forthwith unless required in any other case.
Law Points
- Right of detenu to have representation considered by detaining authority before approval by government
- Article 22(5) of Constitution
- Section 3(1) of Maharashtra Prevention of Dangerous Activities of Slumlords
- Bootleggers
- Drug Offenders and Dangerous Persons Act
- 1981
