2019 (3) TMI 1997 - HC - Indian Laws

Preventive Detention order - illegal business of money lending - dangerous person within the meaning of Section 2(b 1) of the MPDA - infringement of fundamental right guaranteed under Article 22(5) of the Constitution of India - HELD THAT - Admittedly, the representation of the detenu was received by the State Government after the matter was referred to the Advisory Board. The representation was kept pending and it was considered only after the receipt of the report of the Advisory Board. In the light of the discussion in the Judgments referred to hereinabove this course was impermissible and it violated the mandate of section 22(5) of the Constitution of India and thereby infringed the detenu s right to make his representation at the earliest for its expeditious consideration. The representation made to the State Government dated 15/11/2018 was received by the State Government on 17/11/2018 and it was kept pending till the receipt of the report of the Advisory Board which was received only on 04/12/2018. The representation, thereafter, was rejected on 04/12/2018 as on the same day, the order of detention was also confirmed - One of the major requirements of Article 22(5) is that the detenu must be afforded the earliest opportunity of making a representation against the order. This requirement will not be effective if such a representation is not decided at the earliest. Affording the detenu the earliest opportunity of making a representation is meaningless unless such representation is considered and decided at the earliest. In the instant case, admittedly, the representation was received by the State Government on 17/11/2018 and was decided only on 04/12/2018. It was kept pending for receipt of report of the Advisory Board. This course of inaction was directly contrary to the letter and spirit of Article 22(5) of the Constitution of India. In the instant case, there is clear violation of the constitutional rights of the Petitioner - the detention order is liable to be set aside. The detention order passed by the Respondent No.1 and confirmed by the Respondent No.2, is set aside - The Petitioner be released from his detention forthwith, if he is not required in any other case.

Summary

Issues Involved:
1. Legality of the detention order dated 30/10/2018.
2. Compliance with Article 22(5) of the Constitution of India regarding the consideration of the detenu's representation.

Issue-wise Detailed Analysis:

1. Legality of the Detention Order:
The Petitioner challenged the detention order dated 30/10/2018 issued by the Commissioner of Police, Solapur, under Section 3 of the Maharashtra Prevention of Dangerous Activities Act (MPDA). The grounds of detention stated that the Petitioner was a "dangerous person" involved in illegal money lending and had a history of criminal activities, including 10 registered offences. Despite previous preventive actions, including an externment order in 2013 and a detention under MPDA in 2016, the Petitioner allegedly continued his criminal activities. The detention order was based on C.R.No.256 of 2018 and in-camera witness statements, leading to the subjective satisfaction of the detaining authority that the Petitioner posed a threat to public order.

2. Compliance with Article 22(5) of the Constitution of India:
The primary contention was that the Petitioner's representation to the State Government was not considered expeditiously, infringing his fundamental right under Article 22(5). The timeline of events showed that the representation dated 15/11/2018 was received by the State Government on 17/11/2018 but was kept pending until the receipt of the Advisory Board's report on 04/12/2018. The representation was only considered and rejected on the same day the detention order was confirmed.

Legal Precedents and Judgments:
The Petitioner’s counsel relied on the judgment in Jaynarayan Sukul Vs. State of West Bengal (AIR 1970 SC 675), which emphasized the independent and prompt consideration of a detenu's representation by the appropriate authority, separate from the Advisory Board's actions. The Supreme Court in Nafisa Khalifa Ghanem Vs. Union of India (1982) 1 SCC 422 also highlighted that the detaining authority should not defer its decision on the representation until the Advisory Board's opinion is received.

The State's counsel referred to K. M. Abdulla Kunhi Vs. Union of India (1991) 1 SCC 476, arguing that it was proper for the Government to await the Advisory Board's report before considering the representation. However, the Petitioner’s counsel countered with judgments in Hardhan Saha Vs. State of West Bengal (1975) 3 SCC 198, Gracy Vs. State of Karnataka (1991) 2 SCC 1, and Moosa Husein Sanghar Vs. State of Gujarat (1993) 1 SCC 511, which reiterated that the Government's obligation to consider the representation is independent and should not be delayed by awaiting the Advisory Board's report.

Conclusion:
The court concluded that the State Government's action of keeping the representation pending until the Advisory Board's report was received violated Article 22(5) of the Constitution. The delay in considering the representation was deemed contrary to the constitutional mandate, thus infringing the Petitioner's rights. Consequently, the detention order dated 30/10/2018 was set aside, and the Petitioner was ordered to be released forthwith if not required in any other case.