Case Note & Summary
The petitioner, Rupesh Ram Thakur, challenged an order of detention dated 17 October 2017 passed under Section 3 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). The petitioner was detained as a 'dangerous person' based on alleged criminal activities. The petitioner filed a representation on 9 February 2018 to the State Government through his lawyer, raising several grounds including the failure to forward the representation to the Advisory Board. The court considered the amended ground that the representation was not forwarded to the Advisory Board, which is a mandatory requirement under Section 10 of the MPDA Act and Article 22(5) of the Constitution. The State conceded that the representation was not forwarded to the Advisory Board. The court held that the non-communication of the representation to the Advisory Board vitiates the continued detention, as the detenu's right to have his representation considered by the Advisory Board is a fundamental right. The court allowed the petition and quashed the detention order, directing the petitioner's release unless required in any other case.
Headnote
A) Preventive Detention - Right of Representation - Article 22(5) of Constitution - Section 10 of MPDA Act - The detenu's representation must be forwarded to the Advisory Board for consideration; failure to do so vitiates the detention order. The court held that the non-communication of the representation to the Advisory Board infringes the constitutional safeguard under Article 22(5) and renders the continued detention illegal. (Paras 1-10)
B) Preventive Detention - MPDA Act - Section 3 - Detention Order - The detention order under Section 3 of the MPDA Act must be based on subjective satisfaction of the detaining authority; however, procedural safeguards including consideration of representation by Advisory Board are mandatory. (Paras 1-10)
Issue of Consideration
Whether the continued detention of the petitioner under the MPDA Act is vitiated by the failure of the detaining authority to forward the detenu's representation to the Advisory Board, thereby violating Article 22(5) of the Constitution and Section 10 of the MPDA Act.
Final Decision
The court allowed the petition, quashed the detention order dated 17 October 2017, and directed the petitioner's release unless required in any other case.
Law Points
- Preventive detention
- Right of representation
- Communication to Advisory Board
- Article 22(5) of Constitution
- Section 10 of MPDA Act
- Section 3 of MPDA Act
Case Details
2018 LawText (BOM) (04) 103
Writ Petition No. 5292 of 2017
S. C. Dharmadhikari, Prakash D. Naik
Mr. Udaynath Tripathi with Ms. Jayshree Tripathi for the petitioner; Ms. M. H. Mhatre-APP for State
The Commissioner of Police, Thane; The State of Maharashtra; The Superintendent, Nashik Road Central Prison; The Secretary, Hon'ble Advisory Board
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Nature of Litigation
Writ petition challenging preventive detention order under MPDA Act
Remedy Sought
Quashing of detention order and release of petitioner
Filing Reason
Detention order under Section 3 of MPDA Act dated 17 October 2017; failure to forward representation to Advisory Board
Issues
Whether the failure to forward the detenu's representation to the Advisory Board violates Article 22(5) of the Constitution and Section 10 of the MPDA Act, thereby vitiating the continued detention.
Submissions/Arguments
Petitioner argued that the representation dated 9 February 2018 was not forwarded to the Advisory Board, violating constitutional and statutory safeguards.
State conceded that the representation was not forwarded to the Advisory Board.
Ratio Decidendi
The failure to forward the detenu's representation to the Advisory Board, as required under Section 10 of the MPDA Act and Article 22(5) of the Constitution, vitiates the continued detention. The right of the detenu to have his representation considered by the Advisory Board is a fundamental right, and its violation renders the detention illegal.
Judgment Excerpts
By this petition under Article 226 of the Constitution of India, the petitioner challenges an order of detention dated 17th October, 2017.
The petitioner says and submits that one of the Important grounds urged in the said representation is about the non-communication of the representation to the Advisory Board.
The State concedes that the representation was not forwarded to the Advisory Board.
The non-communication of the representation to the Advisory Board vitiates the continued detention.
Procedural History
The petitioner filed Writ Petition No. 5292 of 2017 before the Bombay High Court challenging the detention order dated 17 October 2017. The court heard arguments on the amended ground regarding non-communication of representation to the Advisory Board. The State conceded the ground. The court allowed the petition and quashed the detention order.
Acts & Sections
- 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: 3, 10
- Constitution of India: Article 22(5), Article 226
