Case Note & Summary
The case involved a criminal writ petition before the Bombay High Court challenging a preventive detention order under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (MPDA Act). The detenu-petitioner was detained pursuant to an order dated 2nd September 2004 passed by the Commissioner of Police, Brihan Mumbai, on the basis of two FIRs—C.R. No. 450 of 2004 for offences under Sections 326/34 IPC and C.R. No. 456 of 2004 under Sections 394/34 IPC—and two in-camera statements. The detention order was served on 3rd September 2004 and the detenu was lodged at Nashik Road Central Prison. He submitted a representation dated 1st October 2004, which was rejected on 30th October 2004. The petition challenged the detention on three principal grounds: first, that the approval order dated 7th September 2004 had not been issued by an officer duly authorised under Article 166(1) of the Constitution and the Rules of Business; second, that the confirmation order dated 21st April 2004 had not been passed by the authority who had personally considered the Advisory Board’s report; and third, that the State Government had failed to consider a representation supported by signatures of a large number of people attesting to the petitioner’s clean repute, thereby violating his right under Article 22(5) of the Constitution. The State Government, through an affidavit-in-reply, contended that the Additional Chief Secretary (Home) was the empowered officer under the relevant Notification dated 5th January 2004 to issue the approval order, and that he had in fact done so. Similarly, the confirmation order was also passed by the Additional Chief Secretary (Home) after due consideration of the Advisory Board’s report. Regarding the representation, the affidavit detailed the timeline of its receipt and processing, showing that it was considered without delay and rejected by the same authority. The petitioner did not dispute these averments on oath. The High Court noted that the factual assertions in the State’s affidavit stood uncontroverted. Consequently, it held that the approval order was validly issued by the competent authority, the confirmation order was passed by the officer who had considered the Advisory Board’s report, and the representation had been duly considered. The court further observed that the petitioner’s own copy of the representation did not contain the alleged signatures, and the petition lacked a specific averment regarding such a representation. Therefore, the court found no merit in any of the grounds and dismissed the writ petition, discharging the rule with no order as to costs.
Headnote
A) Constitutional Law - Preventive Detention - Approval of Detention Order - Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981, Section 3(3) - Detenu challenged approval order dated 7th September 2004 on ground it was not issued by officer duly authorised. State Government's affidavit stated that Additional Chief Secretary (Home) was empowered by Notification dated 5th January 2004 to pass approval and had actually passed it. The petitioner did not deny such affirmation on oath. Held that the challenge fails as the approval was issued by competent authority. (Para 5) B) Constitutional Law - Preventive Detention - Confirmation of Detention - Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981, Section 12(1) - Detenu contended that confirmation order dated 21st April 2004 was not issued by the officer who considered the Advisory Board's report. Affidavit-in-reply affirmed that Additional Chief Secretary (Home) was empowered to consider report and pass confirmation, and did so. Being undisputed, the challenge had no substance. Held that the confirmation order was validly passed by the competent authority. (Para 6) C) Constitutional Law - Preventive Detention - Representation under Article 22(5) - Constitution of India, Article 22(5) - Detenu alleged failure to consider representation with signatures of many people testifying his good repute. State's affidavit detailed prompt processing and rejection by Additional Chief Secretary (Home) on 30th October 2004, and noted that the representation actually received did not contain such signatures. Petitioner neither pleaded nor proved the existence of such signatures. Held that there was no violation of Article 22(5) and the representation was duly considered. (Paras 7-8)
Issue of Consideration
Whether the approval order dated 7th September 2004 was issued by an officer duly authorised; whether the confirmation order dated 21st April 2004 was issued by the person who considered the Advisory Board report; and whether the government failed to consider the detenu's representation supported by signatures of persons attesting his clean repute.
Final Decision
Writ petition dismissed; rule discharged with no order as to costs. Detention order upheld. The High Court held that the approval and confirmation orders were validly passed by the empowered authority and the representation was duly considered.
Law Points
- approval of detention order must be by officer duly authorised under Rules of Business
- confirmation of detention after Advisory Board report must be by the same officer who considered the report
- representation against detention must be considered by government without delay
- failure to consider representation violates Article 22(5) of Constitution
