Sandesh alias Shilvya Lajras Chopade v. Commissioner of Police, Pimpri Chinchwad & Ors.

2. It is not necessary to refer to these allegations and grounds of detention because the learned counsel for the petitioner has relied on the solitary ground of delay in considering the representation made by the petitioner. She submitted that on this ground alone the detention order is liable to be set aside. In this context the following dates are important. The petitioner had prepared a representation dated 14 October 2024. It was received by the Jail Superintendent on 16 October 2024. The Jail Superintendent had forwarded it to the Additional Chief Secretary, Home Department, Special Branch (3-B), Government of Maharashtra, Mantralaya, Mumbai through mail dated 16 October 2024. It was received in the Mantralaya by hand through Yerwada Central Prison, Pune on 29 October 2024. After that it was finally decided on 5 December 2024. Learned Counsel, therefore, submitted that there was delay in various parts. Initially there was delay of 14 days from 16 October 2024 to 29 October 2024 for sending the representation from Yerwada Central Prison to Mantralaya. Thereafter, for about 36 days nothing was done about the representation and it was not considered. This delay has remained unexplained and, therefore, it has violated the right of the petitioner under Article 22(5) of the Constitution of India. Hence, the detention order is liable to be set aside. There is violation of Article 22(5). She submitted that merely affording opportunity is not enough but that representation has to be decided at the earliest.

3. The learned APP appearing for the respondents tried to justify the delay in considering the representation. It was not inadvertent and not deliberate and, therefore, the detenu who is a dangerous person may not get benefit out of this lapse. We have considered these submissions.

4. In this context, the affidavit filed by the authorities are important. The Superintendent of Yerwada Central Prison has filed his affidavit-in-reply. He has stated that representation dated 14 October 2024 on behalf of the petitioner was submitted through his Advocate and it was received in the prison on 16 October 2024 by post addressed in the name of Superintendent of Central Prison, Pune. The representation was forwarded after obtaining the petitioner’s signature on it to the Additional Chief Secretary, Home Department, Special Branch (3-B), Government of Maharashtra, Mantralaya, Mumbai through mail dated 16 October 2024. The Deputy Secretary, Government of Maharashtra, Home Department Shri Rajendra Tanaji Bhalwane has filed his affidavit explaining the dates of consideration of the representation. It is mentioned in that affidavit that the representation of the petitioner dated 16 October 2024 was received by the Central Registry Unit of Mantralaya on 29 October 2024 by hand through Yerwada Central Prison, Pune vide letter dated 16 October 2024. The Central Registry Unit forwarded it to the Desk Special-3B by e-office on 30 October 2024. It is further mentioned that since such representations were received by email at Desk Special-3B through concerned prison, it was not checked inadvertently until 29 November 2024. Upon noticing the representation on 29 November 2024 the remarks of the detaining authority were called for on 29 November 2024. They were received on 4 December 2024 and the representation was considered by the Additional Chief Secretary, Home and he rejected it on 5 December 2024 after applying his mind. It is mentioned that there was no intentional delay in deciding the representation of the detenu.

5. We are unable to accept the explanation offered by the authorities. First of all there is clear delay from 16 October 2024 to 29 October 2024 for the representation to travel from Yerwada Central Prison, Pune to Mantralaya, Mumbai. Those 14 days delay is not explained at all. After that on 30 October 2024 it was forwarded to the Desk Special-3B by e-office on 30 October 2024 so that the concerned authorities in Mantralaya were aware about receipt of the representation but after that till 29 November 2024 no action was taken on the representation and some explanation is offered that it was not checked inadvertently. When liberty of a detenu is in question, such explanation is totally unacceptable. When a person is detained by way of preventive detention measures, the authorities need to act with care and promptitude in deciding the representation at the earlier. As is reflected from the language of Article 22(5), the important factor is that the detenu should be afforded the earliest opportunity to make the representation which would also mean that representation has to be decided at the earliest. In the present case it was not decided at the earliest. In fact it was kept unattended for a very long period from 30 October 2024 to 29 November 2024. Even prior to that there was delay in sending the representation from Yerwada Central Prison to Mantralaya from 16 October 2024 to 30 October 2024. At these two stages the delay which is caused for processing the representation has remained unexplained, therefore, on this ground alone the detention order is liable to be set aside. Hence, the following order:- ORDER

(i) The Rule is made absolute in terms of prayer clause (b), which reads thus: “(b) The order of Detention bearing No. PCB/DET/26/2024, Pimpri Chinchwad dated 16.02.2024 issued under Section 3 of M.P.D.A. Act 1981 by the Respondent No.1 be quashed and set aside and on quashing the same, the petitioner be ordered for release forthwith.”

(ii) The petitioner is directed to be released forthwith, if not required in any other case.

(iii) The Writ Petition is disposed of.