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Wakar Ahmed Siddiqui v. State Of Maharashtra & Ors.
Factual and Procedural Background
This writ petition under Article 226 of the Constitution of India was filed by a petitioner who describes himself as a friend of the detenu, Yamin Yasin Qureshi. The petitioner challenged a detention order dated 25-8-1998 issued by R. H. Mendonca, Commissioner of Police, Brihan Mumbai, detaining the detenu under sub-section (1) of section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (Amendment - 1996). The detention order and grounds of detention dated 25-8-1998 were served on the detenu on 30-8-1998 and are annexed to the petition as Annexures A and C.
The petition was argued by Ms. A. M. Z. Ansari for the petitioner; Mr. Rajiv Patil, Additional Public Prosecutor, appeared for the respondents. The petition advances two primary contentions identified in the petition as Ground no. 5(iv) and Ground no. 5(vi).
Legal Issues Presented
- Whether the detenu's right under Article 22(5) of the Constitution of India to make an effective representation was impaired because documents supplied by the Detaining Authority were translated into English instead of the language the detenu could read (alleged Hindi-only competency as pleaded in Ground no. 5(iv)).
- Whether a delay by the State Government (specifically a six-day delay by the Deputy Chief Minister before delegating powers) in considering the detenu's representation to the Advisory Board rendered the continued detention illegal under Article 22(5) (Ground no. 5(vi)).
Arguments of the Parties
Petitioner's Arguments (Ms. A. M. Z. Ansari)
- Ground no. 5(iv): The detenu had stated on 13-4-1998 that he had studied only up to 3rd standard and knew only Hindi and signed only in Hindi (supported by documents at pages 199, 208 and 217). The Detaining Authority supplied English translations instead of Hindi, thereby impairing the detenu's right to make an effective representation under Article 22(5).
- Ground no. 5(vi): The detenu submitted a representation dated 23-9-1998 to the Advisory Board (received 24-9-1998); the State Government considered it only on 16-10-1998. The petitioner contended that this delay by the State rendered the detenu's continued detention illegal under Article 22(5).
Respondents' Arguments (Mr. Rajiv Patil; return by Mr. M. B. Khopkar)
- In response to Ground no. 5(iv), the Detaining Authority stated (para 10 of the return) that the detenu had given a statement indicating he could read and write Urdu and had requested translations in Urdu; accordingly the documents were supplied in Urdu and the detenu's right under Article 22(5) was not impaired. The original file contained a statement dated 30-8-1998 confirming the detenu had studied up to Vth standard in Urdu and had requested translations in that language.
- In response to Ground no. 5(vi), Mr. M. B. Khopkar (Desk Officer, Home Department) averred that the detenu's representation dated 23-9-1998 was forwarded by the Advisory Board with its report to the State Government on 8-10-1998, received the same day by the State Government, processed and submitted to the Deputy Chief Minister (Home) on 9-10-1998. On 15-10-1998 the Deputy Chief Minister delegated his powers to the Additional Chief Secretary (Home), who rejected the representation the same day; the detenu was apprised of the rejection on 16-10-1998. The respondents argued this amounted to disposal at the earliest opportunity and there was no infraction of Article 22(5).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Smt. Gracie v. State of Kerala, AIR 1991 SC 1090 | The State Government is under a legal obligation to consider a representation preferred by the detenu to the Advisory Board. | The court relied on this authority to frame the State's obligation to consider the detenu's representation and noted the respondents did not dispute that legal position. |
| Smt. Shalini Soni v. Union of India, AIR 1981 SC 431 | The right of the detenu to make a representation at the earliest opportunity includes an inherent obligation on the authority to which the representation is made to dispose of it at the earliest opportunity. | The court invoked this principle to assess whether the State had satisfied the duty to deal with the detenu's representation without undue delay. |
| Harish Pahwa v. State of U.P., AIR 1981 SC 1126 | It is the duty of the State to determine such representations with the utmost expedition: take up consideration as soon as received and deal with it continuously (unless absolutely necessary to wait) until a final decision is taken and communicated to the detenu. | The court quoted this ratio and applied it to the facts, concluding that the six-day delay by the Deputy Chief Minister before delegation violated the obligation to deal continuously and with utmost expedition. |
| Santosh Krishna Tandel v. Commissioner of Police, 1998 (6) LJ 536 | In a comparable factual matrix, a one-week period taken by the Deputy Chief Minister to delegate powers was held to be unduly long and resulted in the detenu's representation not being disposed of at the earliest opportunity, vitiating continued detention. | The court referred to this Division Bench decision (one of the judges was a party to it) as a directly analogous precedent supporting the conclusion that delay in delegation may vitiate detention; it was used to justify quashing the detention on similar grounds. |
Court's Reasoning and Analysis
The court proceeded in two parts, addressing each principal ground in turn and applying the cited constitutional provisions and precedents strictly to the material before it.
First (Ground no. 5(iv)), the court examined the original detention file produced by the respondents. The original file contained a statement dated 30-8-1998 in which the detenu stated that he had studied up to Vth standard in Urdu, could read and write Urdu, and had requested translations in Urdu. On that basis the court concluded that the Detaining Authority did supply translations in Urdu and that the contention the detenu could only read Hindi (and thus was given English translations improperly) was without merit. The court therefore held that the detenu's right under Article 22(5) to make an effective representation was not impaired on this ground and rejected Ground no. 5(iv).
Second (Ground no. 5(vi)), the court analysed the timeline and the State's processing of the detenu's representation. The court accepted the legal propositions in Smt. Shalini Soni and Harish Pahwa that (a) the authority receiving a preventive-detention representation must dispose of it at the earliest opportunity, and (b) the State must deal with such representations with utmost expedition and continuously until final decision and communication to the detenu.
The factual chronology in the respondents' return (as summarized by Mr. Khopkar) was that the Advisory Board forwarded the representation on 8-10-1998; the State received it the same day and processed it to the Deputy Chief Minister on 9-10-1998. According to the return, the Deputy Chief Minister delegated his powers only on 15-10-1998 (six days after receipt by the Dy. Chief Minister), and the Additional Chief Secretary rejected the representation the same day, with the detenu being informed on 16-10-1998.
The court observed that the ratio in Harish Pahwa requires continuous and prompt consideration and that the Deputy Chief Minister's delay of six days before delegating responsibility was unexplained in the record. The court noted there was no return by the Deputy Chief Minister explaining the six-day delay, and Mr. Khopkar's return did not justify why such delay occurred. The court considered the six-day interval to be inconsistent with the duty to dispose of the detenu's representation at the earliest opportunity and inconsistent with prior Division Bench treatment (Santosh Krishna Tandel) of comparable delay as vitiating detention. Consequently, the court found that the representation was not disposed of at the earliest opportunity as mandated by Article 22(5) and the cited precedents.
Holding and Implications
HOLDING: The petition is allowed. The impugned detention order dated 25-8-1998 is quashed and the detenu, Yamin Yasin Qureshi, is directed to be released forthwith unless he is wanted in some other case. The Rule is made absolute; petition allowed.
Implications: The direct effect of the decision is the quashing of the specific detention order and the immediate release of the detenu (subject to other legal processes). The court's decision rests on established Supreme Court and Division Bench authorities concerning the mandatory obligation to provide timely disposal of representations under Article 22(5) and on the particular factual finding of an unexplained six-day delay by the Deputy Chief Minister in delegating consideration. The opinion applies existing precedent to the facts and does not purport to lay down a novel legal principle beyond those authorities cited.
This summary has been prepared strictly from the information contained in the provided opinion and does not add or infer facts not present in the source text.
Cases referred :
Smt. Gracie Vs. State of Kerala , AIR 1991 SC 1090 [ 8 ]
Smt. Shalini Soni Vs. Union of India , AIR 1981 SC 431 [ 10 ]
Harish Pahwa Vs. State of U.P. AIR 1981 SC 1126 [ 10 , 11 , 14 ]
Santosh Krishna Tandel Vs. Commissioner of Police, 1998 (6) LJ 536 [ 14 ]
Advocates appeared :
Ms. A. M. Z. ANSARI for the petitioner
Mr. RAJIV PATIL, Additional Public Prosecutor for the Respondents.
Vishnu Sahai, J. :- Through this writ Petition preferred under Article 226 of The Constitution of India, the Petitioner who styles himself as the friend of the detenu Yamin Yasin Qureshi has impugned the detention order dated 25-8-1998 passed by the Second Respondent Mr. R. H. Mendonca , Commissioner of police, Brihan Mumbai detaining the detenu under sub - section (1) of section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (No. LV of 1981) (Amendment - 1996)
The detention order along with the grounds of detention also dated 25-8- 1998, was served on the detenu on 30-8-1998. The true copies of the detention order and the grounds of detention are annexed as Annexures A and C respectively to this Writ Petition. Since, in our view for the decision of this Writ Petition, it is not necessary to refer to the prejudicial activities of the detenu, contained in the grounds of detention, we are not adverting to them.
2. Ms. Ansari learned counsel for the Petitioner has urged two grounds before us : -
She firstly urged the ground which has been pleaded as Ground no. 5( iv ) in the petition.
She secondly urged the ground which has been taken as ground no. 5( vi ) in the petition.
3. Ground no.5 ( iv ) in short is that the detenu in his statement dated 13-4-1998 categorically stated that he had studied up to 3rd standard and knew only Hindi language and signs only in Hindi as is borne out from the documents at pages 199, 208 and 217 which was placed before the Detaining Authority. In ground no. 5 (iv) it has also been mentioned that since the Detaining authority in place of Hindi translation of documents, supplied him the documents translated in English, his right to make an effective representation under Article 22 (5) The Constitution of India was impaired.
4. Ground no. 5 (iv) has been replied to in para 10 of the return of the Detaining Authority wherein he has categorically mentioned that since the detenu himself had given a statement and demanded the translation of documents in Urdu language, which language as per his statement he knew, he was supplied the documents in the said language and therefore his right to make an effective representation under Article 22 (5) of the Constitution of India was not impaired. To substantiate the averments contained in para 10 of the return of the Detaining Authority Mr. Rajiv Patil learned counsel for the respondents, placed before us the original file. On perusing the original file, we found that there was a statement of the detenu dated 30-8-1998 wherein he has stated that today. Sub - inspector Desai from the D. N. Nagar police station informed him that he was detained under the M.P.D.A Act and explained and served the detention order under the M.P.D.A. Act on him. He has also stated in the said statement that he had studied up to Vth standard in Urdu language and could read and write Urdu. He has also mentioned therein that he had requested the police to give him the translations of the original documents in the said language.
5. In view of the statement of the detenu contained in the original file and referred to above, We are implicitly satisfied that the averments contained in ground no. 5 (iv) are without merit and those contained in para 10 of the return of the Detaining Authority are correct and on account of the documents being furnished to the detenu in Urdu, his right to make an effective representation under Article 22(5) of the Constitution of India was not impaired.
6. Hence, we reject the first ground canvassed by Ms Ansari.
7. We now come to the second ground namely Ground no. 5 ( vi ). In short, the said ground is that the detenu submitted a representation dated 23-9-1998 to the Chairman, Advisory Board which was received by the Advisory Board on 24-9-1998 and was considered by the State Government on 16-10-1998. In Ground no. 5 ( vi ) it has been averred that there was a delay on the part of the State Government in considering the said representation. Ms. Ansari learned counsel for the Petitioner urged that since there was a delay on the part of the State Government in considering the detenus representation, his continued detention has been rendered illegal.
8. That the State Government is under a legal obligation to consider a representation preferred by the detenu to the Advisory Board is no longer a grey area in view of the ratio laid down by the Supreme Court in para 9 of the decision reported in AIR 1991 Supreme Court 1090 Smt. Gracie V/s State of Kerala and ors. In all fairness, we wish to point out that Mr. Rajiv Patil learned counsel for the respondents, has also not taken a stand to the contrary.
9. Ground no. 5 (vi) has been replied to in para 2 of the return of Mr. M.B.Khopkar , Desk Officer Home Department (Special) Government of Maharashtra, Mantralaya, Mumbai -32. In the said para, Mr. Khopkar has averred that the detenus representation dated 23-9-98 addressed to the Advisory Board was forwarded by the Advisory Board along with its report to the State Government on 8-10-1998 and on the same day, was received by the State Government, it was processed and submitted to the Dy. Chief Minister (Home) through the Officers concerned in the Home Department for his consideration on 9-10-1998. on 15-10-1998 the Dy. Chief Minister (Home) delegated his powers to the Additional Chief Secretary (Home) who after considering it, rejected it the same day, and on 16-10-1998 vide Government letter dated 16-10-1998, the detenu was apprised of the said rejection.
Mr. Rajiv Patil learned counsel for the respondents strenuously urged that in the factual matrix referred to in the preceeding paras, the rejection of the detenus a representation was made at the earliest opportunity and there is no infraction of his fundamental right under Article 22{5) of The Constitution of India.
10. We have reflected over the submission canvassed by Mr. Rajiv Patil and we are constrained to observe that we do not find any merit in it.
Article 22 (5) of the Constitution of India gives the detenu a right to make a representation against a preventive detention order at the earliest opportunity. The Supreme Court in the case of Smt . Shalini Soni Vs. Union of India and other reported in AIR 1981 Supreme Court 431 has held in para 4, in the detenus right to make a representation at the earliest opportunity, is inherent obligation on the authority to which the representation is made to dispose off the same at the earliest opportunity.
The Supreme Court in the case of Harish Pahwa V/a State of U.P. reported in AIR 1981 Supreme Court 1126 in para 3 has held in the context of the question of delay in the disposal of the representation 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 final decision is taken and communicated to the detenu .
11. A perusal of the observations extracted from AIR 1981 Supreme Court 1126 supra, would show that the representation has to be dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu. To our regret, the said ratio of the Apex Court has not been followed by the Dy. Chief Minister (Home) A perusal of para 2 of the return of Mr. M. B. Khopkar, referred to above would show that the Dy. Chief Minister (Home) received the processed representation of the detenu on 9-10-1998 and till 15-10-1998 he did not attend to it. 0n 15-10-1998, he delegated the powers to the Additional Chief Secretary (Home) who, rejected it the same day.
12. We are at our wits end that if at all the Dy. Chief Minister (Home) had to make a delegation to the Additional Chief Secretary (Home) then, why it took him 6 days to make such a delegation. After all, in the matter of delegation , no application of mind was required. In our view, that it took the Dy. Chief Minister (Home) 6 days to make the delegation shows that in his view, the representation of the detenu was not required to be disposed off at the earliest opportunity.
13. In the instant case, neither any return has been filed by the Dy. Chief Minister (Home) stating therein as to why it took him 6 days to make a delegation nor Mr. Khopkar in his return has mentioned as to why it took the Dy. Chief Minister (Home) such a long time to make a delegation.
14. In the instant case, on account of 6 days delay on the part of the Dy. Chief Minister (Home) in making the delegation to the Additional Chief Secretary (Home) the ratio laid down in AIR 1981 supreme Court 1126 supra extracted above, in terms that the representation has to be dealt with continuously, has been given a go - by.
In the circumstances, of the present case, it cannot be said that the representation of the detenu was disposed off at the earliest opportunity as it should have been, in view of the provisions contained in Article 22(5) of the Constitution of India.
It would be appropriate to refer to the Division Bench decision of this Court reported in 1998 (6) LJ. 536 Santosh Krishna Tandel v/s commissioner of Police & anr to which one of us (Vishnu Sahai, J) was a party. In the said case, the file duly processed and scrutinised was submitted to the Dy. Chief Minister (Home) for his consideration on 17-12-1997 and on 24-12-1997, he delegated his powers to the Additional Chief Secretary (Home) who, on the said date rejected the detenus representation. This Court held that the period of one weeks time, taken by the Dy. Chief Minister to make a delegation was unduly wrong and had resulted in the representation of the detenu not being disposed off at the earliest opportunity. Consequently, it held the detenus continued detention vitiated in law and quashed the impugned detention order.
15. It should be borne in mind that preventive detention is a draconian piece of legislation. The law may permit it when the prejudicial activities of a person cannot be curbed under the ordinary law of land but, it should always be borne in mind that strict procedural safeguards guaranteed by Article 22(5) of the Constitution of India, must be adhered to by the authorities and one such safeguard is the right of the detenu to make a representation at the earliest opportunity in which right, as held in AIR 1981 Supreme Court 431 supra, is implicit an obligation on the authority to which the representation is preferred to dispose off the same at the earliest opportunity.
16. In our view, on account of the delay in the disposal of the detenus representation, his continued detention has been rendered illegal.
17. In the result, this petition is allowed. The impugned detention order is quashed and the detenu Yamin Yasin Qureshi is directed to be released forthwith unless wanted in some other case.
Rule is made absolute.
Petition allowed.
provisions contained in Article 22(5)Alert