Case Note & Summary
The petitioner, mother of the detenu, challenged the preventive detention order passed under Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 (MPDA Act). The detenu was detained pursuant to an order dated 30th September 2014. The primary ground raised was gross delay in deciding the representation made against the detention order. Three representations were made: one by the detenu to the Chairman of the Advisory Board and the State Government, a second by the petitioner via letter dated 19th December 2014, and a third allegedly by the detenu's wife (disputed). The first representation was forwarded by the Advisory Board to the State Government on 21st November 2014. The State Government received it on the same day but decided it only on 12th December 2014, a delay of 21 days. The court examined the affidavits and files produced by the State. The Deputy Secretary's affidavit stated that the representation was received on 21st November 2014 but did not provide a satisfactory explanation for the delay. The court noted that the representation was decided after the Advisory Board's opinion was received, but the State failed to explain why it took 21 days. Relying on settled law that unexplained delay in deciding a representation violates Article 22(5) of the Constitution, the court held that the continued detention was illegal. The court quashed the detention order and directed the detenu's release unless required in any other case.
Headnote
A) Preventive Detention - Delay in Deciding Representation - Article 22(5) of the Constitution of India - Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 - The detenu's representation was received by the State Government on 21st November 2014 but was decided only on 12th December 2014, a delay of 21 days - The State failed to explain the delay satisfactorily - Held that the unexplained delay vitiates the detention order and the continued detention is illegal (Paras 4-6).
Issue of Consideration
Whether the unexplained delay on the part of the State Government in deciding the representation made against the order of preventive detention under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 violates the constitutional right under Article 22(5) of the Constitution of India and renders the detention order illegal.
Final Decision
The court allowed the petition, quashed the detention order, and directed the detenu to be set at liberty unless required in any other case.
Law Points
- Preventive detention
- delay in deciding representation
- Article 22(5) of Constitution
- Maharashtra Prevention of Dangerous Activities Act 1981
- right to make representation
- unexplained delay vitiates detention
Case Details
2015 LawText (BOM) (02) 78
Criminal Writ Petition No.4840 of 2014
Mrs. Aisha Mohammed Zubair Ansari along with Mrs. Nasreen Ayubi for the Petitioner, Shri J.P. Yagnik, APP for the Respondents
The State of Maharashtra and Others
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Nature of Litigation
Criminal writ petition challenging preventive detention order under MPDA Act
Remedy Sought
Quashing of detention order and release of detenu
Filing Reason
Gross delay in deciding representation against detention order
Previous Decisions
Detention order passed on 30th September 2014; representation made but not decided promptly
Issues
Whether the delay of 21 days in deciding the detenu's representation is unexplained and violates Article 22(5) of the Constitution?
Submissions/Arguments
Petitioner argued that there was gross delay in deciding the representation, relying on three representations.
State argued that the representation was decided after receiving the Advisory Board's report and there was no delay.
Ratio Decidendi
Unexplained delay in deciding a representation made under Article 22(5) of the Constitution of India against a preventive detention order vitiates the detention order, as it infringes the fundamental right to have the representation considered expeditiously.
Judgment Excerpts
By this Petition under Article 226 of the Constitution of India, the Petitioner has taken an exception to the order of preventive detention passed under Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981.
The first ground canvassed by the learned counsel appearing for the Petitioner who is the mother of the detenu is that there is a gross delay on the part of the State Government in deciding the representation made against the order of preventive detention.
Thus, on conjoint reading of the statements made in Paragraph 2 and Paragraph 5(vii) of the said affidavit, it appears that the representation was received by the State Government on 21st November 2014 along with the report of the Advisory Board.
The representation was decided on 12th December 2014. There is no explanation whatsoever for the delay of about 21 days in deciding the representation.
In view of the settled law, the unexplained delay in deciding the representation vitiates the order of detention. Hence, the petition must succeed.
Procedural History
The petitioner filed Criminal Writ Petition No.4840 of 2014 under Article 226 of the Constitution challenging the preventive detention order dated 30th September 2014. The court heard arguments on delay in deciding representation, called for files, and after perusal, allowed the petition on 17th February 2015.
Acts & Sections
- Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981: Section 3
- Constitution of India: Article 226, Article 22(5)
