TaxTMI 
TaxTMI 
2019 (3) TMI 1997
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....rder, the Petitioner was served with the grounds of detention dated 30/10/2018 in compliance with Section 8 of the MPDA. The order and the grounds of detention were served on the Petitioner on 30/10/2018 and he was detained in Yerwada Central Prison, Pune. The Petitioner is challenging this detention order and his detention effected pursuant to that order. 2. The grounds of detention formulated by the Respondent No.1 i.e. the Commissioner of Police, Solapur, mention that the Petitioner was a dangerous person and a weapon wielding desperado. According to the Respondent No.1, the Petitioner had unleashed a reign of terror and had become habitual danger to the lives and properties of the people residing and carrying out their daily business in the areas mentioned in the detention order in Solapur city. According to the Respondent No.1, the Petitioner was carrying out illegal business of money lending. Paragraph 4.1 mentions a list of 10 registered offences at various police stations in Solapur under different sections of the Indian Penal Code. In some of the cases, the Petitioner was acquitted. 3. In the year 2013, an externment order was passed against the Petitioner ....
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....graph 9, the Petitioner was specifically informed that he had a right to make a representation to the State Government against the detention order and that the Petitioner would be afforded earliest opportunity to make such a representation and that it could be submitted through the Superintendent of jail where he was detained. Paragraphs 10 and 11 of the grounds of detention mention that his case would be referred to the Advisory Board and that he could make a representation to the Advisory Board as well. Paragraph 12 mentions the rights of the Petitioner to appear before the Advisory Board. 7. We have heard Mr. U. N. Tripathi and Ms. Jayashree U. Tripathi, learned Counsel for the Petitioner and Ms. M. H. Mhatre, learned APP for State ­ Respondent No.2. Learned APP also represented the Respondent No.1 ­ The Commissioner of Police, Respondent No.3 ­ The Superintendent, Yerwada Central Prison, Pune and the Respondent No.4 ­ The Secretary, Advisory Board for M.P.D.A. In response to the Petition, the Respondent No.1 has filed his Affidavit dated 28/01/2019 supporting his action of passing the detention order. Mr. Aniruddha V. Jewlikar, Deputy Secretary (Incharge....
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..../11/2018. The report of the Advisory Board was received on 04/12/2018. On the same day, the Assistant Section Officer submitted the file containing remarks of the detaining authority (Respondent No.1) along with the representation of the Petitioner to the Section Officer who, in turn, submitted it to the Deputy Secretary (In­charge). It was forwarded to the Additional Chief Secretary (Home) and this authority rejected the representation on 04/12/2018 itself. 10. Thus, from these dates, it is clear that the Petitioner's representation dated 15/11/2018 was received by the Respondent No.2 on 17/11/2018 and was kept pending till 04/12/2018 till the report of the Advisory Board was received. 11. In support of her contention, Ms. Tripathi rightly relied on the Judgment of a Constitution Bench of the Hon'ble Supreme Court in the case of Jaynarayan Sukul Vs. State of West Bengal reported in AIR 1970 SC 675. In this case, the detenu was detained under the Preventive Detention Act, 1950. In this case, the Hon'ble Supreme Court was considering the detenu's right to make representation against the detention order and consideration thereof by the appropriate author....
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....Government may still exercise the power to release the detenu." 12. Ms. Tripathi then relied on the Judgment of the Hon'ble Supreme Court in the case of Mrs. Nafisa Khalifa Ghanem Vs. Union of India and Others reported in (1982) 1 Supreme Court Cases 422. Paragraph 7 of this Judgment reads thus :­ "7. Lastly, it was pointed out that although the representation was received by the detaining authority on February 25, 1980, the representation was rejected on March 13, 1980, a day after the Advisory Board had given its opinion. The Collector's remarks which were sent for were available to the detaining authority as far back as on March 6, 1980 and there could be no reason for the detaining authority to have deferred its decision on the representation till the receipt of the opinion of the Advisory Board. This Court has held that the detenu has an independent constitutional right to have the representation considered by the detaining authority irrespective of whatever the Advisory Board may do. In the instant case, though the respondents do not admit that they awaited the decision of the Advisory Board, the facts put together lead to the irresistible inference tha....
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....arded to the Advisory Board provided the Board has not concluded the proceedings. In both the situations there is no question of consideration of the representation before the receipt of report of the Advisory Board. Nor it could be said that the Government has delayed consideration of the representation, unnecessarily awaiting the report of the Board. It is proper for the Government in such situations to await the report of the Board. If the Board finds no material for detention on the merits and reports accordingly, the Government is bound to revoke the order of detention. Secondly, even if the Board expresses the view that there is sufficient cause for detention, the Government after considering the representation could revoke the detention. The Board has to submit its report within eleven weeks from the date of detention. The Advisory Board may hear the detenu at his request. The Constitution of the Board shows that it consists of eminent persons who are Judges or persons qualified to be Judges of the High Court. It is therefore, proper that the Government considers the representation in the aforesaid two situations only after the receipt of the report of the Board. If the repr....
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.... It is now beyond the pale of controversy that the constitutional right to make representation under Clause (5) of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation. Secondly, the obligation of the Government to afford to the detenu an opportunity to make representation and to consider such representation is distinct from the Government's obligation to refer the case of detenu along with the representation to the Advisory Board to enable it to form its opinion and send a report to the Government. It is implicit in Clauses (4) and (5) of Article 22 that the Government while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation. It has to consider the representation on its own without being influenced by any such view of the Board. The obligation of the Government to consider the representation is different from the obligation of the Board to consider the representation at the time of hearing the references. The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law. The Boar....
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....This has been emphasised and reemphasised by a series of decisions of this Court. (See: Jayanarayan Sukul Vs. State of W.B. [(1970) 1 SCC 219] , Frances Coralie Mullin Vs. W. C. Khambra [(1980) 2 SCC 275 : 1980 SCC (Cri) 419] , Rama Dhondu Borade v. V.K. Saraf, Commissioner of Police [(1989) 3 SCC 173 : 1989 SCC (Cri) 520] and Aslam Ahmed Zahire Ahmed Shaik v. Union of India and Ors. [(1989) 3 SCC 277 : 1989 SCC (Cri) 554]" It is quite significant that in both these paragraphs the Constitution Bench has clearly mentioned that the right to have the representation considered by the Government is safeguarded by Clause 5 of Article 22. It is independent of the consideration of the detenu's case and his representation by the Advisory Board under Clause (4) of Article 22. Jaynarayan Sukul's case (supra) is specifically referred. Paragraph 13 of K. M. Abdulla's case reads as follows : "13. It, therefore, follows that the appropriate authority is to consider the representation of the detenu uninfluenced by any opinion or consideration of the Advisory Board. In the case of Khairul Haque v. State of West Bengal, W. P. No.246 of 1969, D/­ 10­9­1969 (re....
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.... sending it to the Advisory Board. 19. In Gracy's case (supra), K. M. Abdulla Kunhi's case (supra) is referred to. In paragraph 5 of the said judgment, paragraph 11 of K. M. Abdulla Kunhi's Judgment (supra) was quoted. After considering K. M. Abdulla Kunhi's case, paragraph 6 of the Gracy's Judgment (supra) reads thus­: "6. It is thus clear that the obligation of the government to consider the representation is different and in addition to the obligation of the Board to consider it at the time of hearing the reference before giving its opinion to the government. Consideration of the representation by the governance has to be uninfluenced by the view of the Advisory Board. In short, the detenu's right to have the representation considered by the governance under Article 22(5) is independent of the consideration of the detenu's case and his representation by the Advisory Board. This position in law is also not disputed before us." 20. Hence, the Hon'ble Supreme Court has referred to Kunhi's case (supra) and has categorically observed that detenu's right to have the representation considered by the Government under Article 22 was independent of....