HC Enunciates: Gross delay in considering the representation affects the Rights of detenu under Article 22(5) of the Constitution

 

The Bombay High Court allowed the writ petition seeking the quashing of the Order of detention dated 29th September 2022 under Section 3(2) of the M.P.D.A. Act. A division bench of this Court comprising of Hon’ble Justice A.S. Gadkari and Prakash D. Naik held that the disposal of representation must be considered with the reasonable expedition as any delay in its disposal affects the right of detenu under Article 22(5) of the Constitution of India.

Brief Facts:

In this petition, the Petitioner challenged the Order of detention dated 29th September 2022 under Section 3(2) of the M.P.D.A. Act along with the Order of detention, a ground of detention, and the documents relied upon by detaining Authority while issuing the detention Order.

The solitary ground urged by the Petitioner to set aside the impugned Order of detention was that the representation addressed to the State of Maharashtra at the instance of the Petitioner was not dealt with expeditiously.

Contentions of the Petitioner:   

The learned Counsel appearing for the Petitioner submitted that representation dated 1st December 2022 was forwarded through Mumbai Central Prison and received on 1st December 2022. The State Government rejected it on 3rd February 2023, and the result was communicated to the detenu on 8th February 2023. The learned Counsel contended that even though there has been a delay in dealing with the said representation, which has affected the constitutional right of the detenu under Article 22(5) of the Constitution of India.

Contentions of the Respondent:

The learned Counsel for the Respondent submitted that the representation was promptly dealt with, and the decision was taken on 3rd February 2023. He relied on the reply filed by the Deputy Superintendent, Mumbai Central Prison, Mumbai, to contend that the concerned person from Mumbai Central Prison had wrongly transmitted the representation to the Office of Advisory Board.

 

Observations of the Court:

This Court finds that the representation dated 1st December 2022 was signed by detenu on 2nd December 2022. It was received by the Advisory Board instead of the Office of Additional Chief Secretary (Home) Department (Special) Government of Maharashtra Mantralaya, Mumbai, and the same was rejected on 3rd February 2023. It was also noted that even after receiving the copies of representation by the office of Additional Chief Secretary on 24th January 2023 it is not explained why it was rejected on 3rd February 2023.

The reliance was placed on the case of Aslam Ahmed Zahire Ahmed Shaik Vs. Union of India and Ors AIR 1989 SC 1403 in which it was held that the disposal of representation must be considered with reasonable expedition. Otherwise, it affects the right of detenu under Article 22(5) of the Constitution of India. Therefore, on account of the delay in considering the representation of the Petitioner, this Court was of the view that the continued detention is rendered invalid and deserves to be set aside as it has affected the constitutional right of the detenu under Article 22(5) of the Constitution of India. 

 

The decision of the Court:

The Bombay High Court, allowing the writ Petition, held that delay in considering the representation of the Petitioner affects the constitutional right of the detenu under Article 22(5) of the Constitution of India.

Case Title: Sangharsh Alias Bhavya Nitin Adsul v. The Commissioner of Police and others

 

Coram: Hon’ble Justice A.S. Gadkari and Prakash D. Naik

Case no.: CRIMINAL WRIT PETITION NO. 4505 OF 2022

Advocate for the Petitioner: - Ms. Jayshree Tripathi

 

Advocate for the Respondents: - Mrs. S. D. Shinde

Read Judgment ;

 

 

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