Wasim @ Mukri A.Salar v. The Commissioner of Police Solapur

2. The petitioner – detenu by this petition fled under Article 226 of the Constitution of India is challenging the order of detention dated 27/02/2020 made by respondent No.1 – Commissioner of Police, Solapur under section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Ofenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons engaged in Black-Marketing of Essential Commodities Act, 1981 (for short ‘M.P.D.A. Act’)

3. Respondent No.1 made the order of detention on the grounds mentioned in the Grounds of Detention dated 07/02/2020. Learned Counsel for the petitioner though has raised several grounds in the petition, has restricted her challenge on the grounds (c) & (d) of the petition. So far as ground (d) is concerned, learned Counsel for the petitioner submitted that the representation dated 12/03/2020 of the detenu was not considered by the State Government expeditiously and therefore the detention of the petitioner is unconstitutional. She relied upon the judicial pronouncement of the Hon’ble Supreme Court which we have referred to in later part of our judgment. Learned Counsel has also assailed the order of detention on ground (c). Her contention is that the detenu is not supplied with various documents which are referred to and relied upon by the detaining authority in the language understood by him and therefore the petitioner has been denied of his valuable right to make an efective representation which would vitiate the detention. Therefore, according to her, the order of detention is unconstitutional.

4. Learned APP on the other hand supported the impugned order. He invited our attention to the afdavit in reply fled on behalf of the detaining authority and also the State Government in support of his submission that the delay in deciding the representation is reasonable and that the same is satisfactorily explained.

5. He would further submit that the documents which were furnished to the petitioner were explained to him as well as his brothers Mohsin and Faisal, his Advocates Mr. Mustaq Manure & A.N.Shaikh. He submitted that the petitioner can read and write Marathi language and acknowledgment has been obtained from the petitioner and his brother. Learned APP would further submit that even in the year 2017 when the petitioner was detained under MPDA Act, documents were served in Marathi language when no objection was raised regarding the document being in Marathi language.

6. Heard learned Counsel. We have perused the petition, grounds of detention, the annextures and the afdavit in replies fled by the State Government & detaining authority. We deal with ground (d) of the Petition which reads thus: “d. The petitioner says and submits that a representation of the detenu dated 12.03.2020 was sent by speed post to the State Government through the Superintendent, Yerwada Central Prison, Pune for their expeditious consideration. The petitioner says and submits that so far no communication has been received as regards the consideration of the said representation of the detenu, thereby the State Government has delayed in considering the said representation. As such the right to make representation guaranteed under Article 22(5) of the Constitution of India is violated. The continued detention is illegal and bad in law, liable to be quashed and set aside.”

7. In response to the ground (d), one Anniruddha Venkatesh Jewlikar, Deputy Secretary (In-Charge), Government of Maharashtra, Home Department (Special), Mantralaya, Mumbai has fled an afdavit and in paragraph 2 thereof has dealt with the ground (d). It would be expedient to reproduce paragraph 2 of the afdavit in reply which reads thus: “With reference to para no.5(d) of the Petition, the contention raised by the petitioner in this para is totally incorrect and the same is denied by me. It is submitted that, the representation of the detenu bearing signature dated 14.03.2020 was received in the Special Branch – 3B desk on 16.03.2020 through the Superintendent, Yerwada Central Prison, Pune vide letter dated Nil. Thereafter, the remarks were called for from the Detaining Authority i.e. Commissioner of Police, Solapur on 16.03.2020. The Commissioner of Police, Solapur sent their remarks vide letter dated 19.03.2020 on 20.03.2020 by email. There was Government holiday on 21.03.2020 (Saturday) and 22.03.2020 (Sunday). On midnight of 22.03.2020 the local train services were suspended to contain the spread of Corona Virus. From 24.03.2020 Nationwide Lockdown was declared. The remarks of the Detaining Authority were called again and the remarks were received on 11.08.2020 by E-mail, vide letter dated 19.03.2020. The concerned Assistant Section Ofcer submitted fle containing remarks of Detaining Authority along with the representation of the Detenu to the Deputy Secretary (In-charge) on 13.08.2020. The Deputy Secretary (In-charge) endorsed it on 13.08.2020 and forwarded it to the Additional Chief Secretary (Home) on the same day. The Additional Chief Secretary (Home) considered the representation of the Detenu and the remarks of the Detaining Authority and rejected the representation on 14.08.2020 by applying his mind independently. The rejection of representation was communicated to the Detenu vide letter dated 14.08.2020. Thus, the representation of the Detenu was considered by the State Government as expeditiously as possible.”

8. We fnd that the detention order is made under section 3(2) of the said Act on 27/02/2020. The report under section 3(3) of the said Act from detaining authority was received by the State Government on 28/02/2020. The order of the detention is approved by the State Government on 28/02/2020. The order of detention was executed on 27/02/2020. The reference was made under section 10 of the said Act to the Advisory Board on 28/02/2020. The detention order was confrmed by the State Government on 20/03/2020.

9. The detenu made representation on 14/03/2020 against the order of the detention which was received by Special Branch – 3B desk on 16/03/2020 of the State Government on 16/03/2020 through the Superintendent, Yerwada Central Prison, Pune. The remarks were called from the Detaining Authority on 16/03/2020. The remarks were sent by a letter on 19/03/2020 and on 20/03/2020 by E-Mail. In the afdavit fled on behalf of the State Government a stand is taken that on midnight of 22/03/2020 the local train services were suspended to contain the spread of Corona Virus. From 24/03/2020, Nationwide lock down was declared. It is then stated that remarks of the detaining authority were called again and remarks were received on 11/08/2020 by E-mail, vide letter dated 19/03/2020. It was then that the representation of the detanu came to be rejected vide letter dated 14/08/2020. We fnd the justifcation of the delay in deciding the representation wholly unacceptable. No doubt that the train services were suspended and Nationwide lock down was declared on 24/03/2020, but that can hardly be justifcation for deciding the representation dated 14/03/2020 of the detenu almost after 4 months on 14/08/2020. Delay of more than 4 months in deciding the representation is inconceivable.

10. From the record it is seen that almost for a period of 4 months there was absolutely no progress made in deciding the representation of the detenu. We therefore fnd force in the submission of the learned Counsel for the petitioner that there is no satisfactory explanation for the delay and whatever explanation is ofered in the afdavit in reply that of Nationwide lock down and suspension of the local trains can hardly be said to be a reasonable explanation when considered from the perspective of a matter involving liberty of an individual. It is therefore obvious that the representation made by the petitioner lay unattended for a period of more than 4 months and it was only thereafter that the State Government again called for comments of the detaining authority on the said representation. It is pertinent to note that even after 4 months when the representation came to be decided, it was not as if there was any change in the situation, as the lockdown restrictions were still in place and even the suspension of local trains continued. The explanation is therefore unacceptable.

11. Hon’ble Supreme Court in the case of 1 Harish Pahva Vs. State of Uttar Pradesh and ors. dealt with the question of efect of delay in deciding the representation by the State Government within a reasonable time on the detention order. Their Lordships in paragraph 5 have authoritatively stated thus: “In our opinion, the manner in which the representation made by the appellant has been dealt with reveals a sorry state of afairs in the matter of consideration of representations made by 1 (1981) 2 Supreme Court Cases 710 persons detained without trial. There is no explanation at all as to why no action was taken in reference to the representation on June 4, 5 and 25, 1980. It is also not clear what consideration was given by the government to the representation from June 13, 1980 to June 16, 1980 when we fnd that it culminated only in a reference to the Law Department, nor it is apparent why the Law Department had to be consulted at all. Again, we fail to understand why the representation had to travel from table to table for six days before reaching the Chief Minister who was the only authority to decide the representation. We may make it clear, as we have done on numerous earlier occasions, that this Court does not look with equanimity upon such delays when the liberty of a person is concerned. Calling comments from other departments, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital import. We would emphasise that it is the duty of the State to proceed to determine representations of the character above mentioned with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a fnal decision is taken and communicated to the detenu. This not having been done in the present case we have no option but to declare the detention unconstitutional. We order accordingly, allow the appeal and direct that the appellant be set at liberty forthwith.”

12. We therefore have no hesitation in holding that representation made by the detenu was not considered with utmost expedition and same was not taken up for consideration as soon as it was received and dealt with continuously until a fnal decision was taken and communicated to the detenu. We are therefore of the opinion that when the petitioner is detained especially without a trial, the explanation for delay in deciding the representation has to be reasonable and satisfactory. We do not fnd the explanation for the delay in deciding the representation to be reasonable and satisfactory which would render the detention unconstitutional.

13. Hence, the Petition succeeds and the same is allowed as under:-

(i) Rule is made absolute in terms of prayer clause (b) which reads thus: “(b) The order of Detention bearing No. D.O.NO. 03/CB/DP/2020 dated 27.02.2020 issued under Section 3(1) 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 be released forthwith if not required in any other case.

(iii) The Writ Petition stands disposed of.