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Smt. Shakuntala Motiram Patil, Dist. Raigad. v. Shri K.S. Shinde Others
Structured Summary of the Opinion
Factual and Procedural Background
The petition was filed by the wife of the detenu, Motiram Padu Patil, challenging the detention order dated 29.12.1995, under the provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981. The grounds of detention accompanying the order described the detenu as a bootlegger. The petitioner raised several challenges; the court confined its decision to the challenge based on delay in consideration of the detenu's representation by the State Government.
The representation on behalf of the detenu was dated 7th January 1996 (referred to alternatively as 8th January 1996 in the petition) and addressed to the Principal Secretary (Preventive Detention), Government of Maharashtra. According to the Desk Officer's affidavit, the representation was received in the Central Registry on 10th January 1996, reached the concerned desk on 20th January 1996, was submitted to the Deputy Chief Minister (Home) on 23rd January 1996, rejected on 24th January 1996 and communicated to the detenu's advocate by letter dated 25th January 1996.
Legal Issues Presented
- Whether the delay of ten days (from 10.1.1996 to 20.1.1996) in forwarding and considering the detenu's representation by the State Government amounted to a breach of the detenu's constitutional right under Article 22(5) to have his representation considered "expeditiously"?
- Whether the State's explanation for the delay — the Central Registry's processes, volume of correspondence, and intervening public holidays — was sufficient to avoid invalidation of the detention order on grounds of unreasonable delay?
Arguments of the Parties
Appellant's (Petitioner's) Arguments
- The representation was addressed specifically to the Principal Secretary (Preventive Detention) and therefore should have been dealt with expeditiously and without delay.
- Authorities and precedent require that representations against detention be attended to promptly; the unexplained 10-day delay in reaching the concerned desk was unjustified and infringed Article 22(5).
- Counsel relied on the division bench decision in 1992 M.L.J. 1451 (Anand @ Anna Murlidhar Power Vs. S. Ramamurthi) and the Apex Court decision in AIR 1989 SC 1861 (Rama Dhondu Borade v. V.K. Saraf) to support the requirement of prompt consideration of representations.
Respondent's (State) Arguments
- The State contended that strict day-by-day time formulas should not be applied obsessively and that mere delay does not necessarily amount to denial of the detenu's rights under Article 22(5) unless there is supine indifference or callous negligence.
- The additional affidavit explained the delay by reference to the heavy volume of correspondence (about 10,000 items per month) received at the Central Registry, the internal process of opening and marking correspondence to desks, the existence of multiple ministerial offices and desks, and intervening public holidays (13th and 14th January 1996).
- The State relied on Supreme Court decisions (AIR 1990 SC 176, (1981)3 SCC 317 — Mst. L.M.S. Ummu Saleema v. B.B. Gujaral — and AIR 1990 SC 1446 — Abdul Salam alias Thiyyan v. Union of India) to submit that delays must be viewed in context and that the time imperative is not absolute; if an adequate explanation exists, detention should not be invalidated solely on delay grounds.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| 1992 M.L.J. 1451 — Anand @ Anna Murlidhar Power v. S. Ramamurthi (Division Bench) | Relied upon for the proposition that representations against detention must be attended to expeditiously and without delay (invoking Rama Dhondu Borade). | The court acknowledged this authority as supporting the petitioner's submission on expedition of representations; it formed part of the authorities considered when evaluating the delay. |
| AIR 1989 SC 1861 — Rama Dhondu Borade v. V.K. Saraf | Establishes that whether a representation has been considered "as soon as possible" depends on facts and circumstances; requires reasonable dispatch but fact-sensitive inquiry. | The court referred to this principle, observing that expedition depends on circumstances; nonetheless, on the facts here the court found the State's explanation inadequate and held the delay unjustified. |
| AIR 1990 SC 176 | Cited (paragraphs 37–38) for the view that absence of laches or negligence in dealing with representation can uphold detention; illustrates that adequate explanation defeats challenge based on delay. | The court considered the passage but found that the State's affidavit did not amount to the kind of explanation that the cited decision described; therefore this precedent did not save the detention in the present facts. |
| (1981) 3 SCC 317 = AIR 1981 SC 1191 — Mst. L.M.S. Ummu Saleema v. B.B. Gujaral | Holds that the "time imperative" is not absolute or obsessive; observations that each day's delay must be explained are meant to emphasize expedition, not to act as a strict magical formula. | The court acknowledged the principle but distinguished the facts: the State's organizational process and the ten-day delay were not acceptable explanations in the specific circumstances before the court. |
| AIR 1990 SC 1446 — Abdul Salam alias Thiyyan v. Union of India | Shows that, on facts, a representation can be considered "most expeditiously" and that lack of negligence or avoidable red-tapism supports the validity of detention. | The court noted this authority but held that, unlike in Abdul Salam, the explanation here fell short and did not demonstrate expeditious handling; thus the precedent did not warrant upholding the detention. |
Court's Reasoning and Analysis
The court undertook a fact-sensitive analysis focused on the timeline and the sufficiency of the State's explanation for the delay:
- Timeline scrutiny: The court compiled the sequence — representation dated 7th January 1996 (also referred to as 8th January 1996 in the petition), received in the Central Registry on 10th January 1996, reached the concerned desk on 20th January 1996, submitted to the Deputy Chief Minister on 23rd January 1996, rejected on 24th January 1996 and communicated on 25th January 1996.
- Initial objection: The court observed that the affidavit gave no explanation for why it required ten days (10.1.1996 to 20.1.1996) for the representation to reach the concerned desk.
- State's explanation: The additional affidavit described heavy daily correspondence, multiple ministerial offices, numerous desks under the Home Department, and a routine of opening, diarising and marking correspondence in the Central Registry. It also noted public holidays (13th and 14th January) and argued that ten days (including holidays) should not be treated as undue delay.
- Precedent consideration: The court examined the authorities relied upon by both sides, recognizing that precedents require expedition but also that time imperatives are fact-dependent and not absolutely rigid.
- Duty of detaining authority: The court emphasized that the detaining authority must clearly inform the detenu of his right to make representations to the State Government and that, when a representation is addressed to the Principal Secretary (Preventive Detention), the State should anticipate such representations and make arrangements to ensure they are immediately forwarded to the appropriate official rather than being relegated to the Central Registry.
- Evaluation of the explanation: Applying these principles to the facts, the court found the Central Registry explanation insufficient — specifically it found it "difficult to appreciate" the assertion that correspondence could not be identified as representations against detention until opened. The court characterized the 10-day delay as a "careless" failure to attend to the representation.
- Constitutional infringement: The court concluded that the unexplained delay infringed the detenu's constitutional right under Article 22(5) to have his representation considered expeditiously by the State Government.
Holding and Implications
Holding: The petition was allowed. The court quashed and set aside the order of detention dated 29th December 1995 passed by the Commissioner of Police, Navi Mumbai, under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981, and ordered that the detenu, Motiram Padu Patil, be released forthwith unless lawfully required in any other case.
Implications:
- Direct effect: The immediate consequence is the release of the detenu, subject to any lawful requirement in other cases.
- Administrative guidance: The decision warns State authorities that representations addressed to the Principal Secretary (Preventive Detention) must be anticipated and immediately forwarded for priority consideration; relegating such representations to a general Central Registry without prompt action may render continued detention unconstitutional in appropriate cases.
- Precedential effect: The opinion applies existing Supreme Court principles about expedition and fact-sensitive evaluation of delay. The court did not purport to lay down a new rule of law beyond applying settled principles to the facts before it; the holding is therefore limited to these factual circumstances (i.e., the court found no adequate explanation here and quashed detention on those grounds).
Rule made absolute: Petition allowed and detenu ordered to be released forthwith, unless otherwise lawfully required.
Cases referred :
1. 1992 M.L.J. 1451 [ 4 ]
2. AIR 1989 SC 1861 [ 4 ]
3. AIR 1990 SC 176 [ 5 ]
4. AIR 1990 SC 1446 [ 6 ]
5. (1981)3 SCC 317 = AIR 1981 SC 1191 [ 5 ]
Advocates appeared :
Shri S.R. Chitnis for the petitioner.
Mr. D.G. Bagwe APP for Respondents.
TIPNIS, J. : By this petition filed by the wife of the detenu, the order of detention dated 29.12.1995 detaining a person by name Motiram Padu Patil under the provisions of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981 is challenged.
2. The grounds of detention accompanying the order of detention clearly show that the detenu is a bootlegger. The petition raised several points of challenge. However, as in our opinion the challenge on the ground of delay in consideration of the representation by the State Government, in the facts and circumstances of the case, must succeed, we find it unnecessary to deal with other grounds.
3. In ground (F) of the petition, it is stated that the representation on behalf of the detenu was addressed to the Principal Secretary, (Preventive Detention) on or about 8th January 1996 and the detaining authority should satisfy this court that the said representation was considered with sufficient dispatch. The Desk Officer, Government of Maharashtra , Home Department has filed an affidavit. In paragraph 2 of the said affidavit it is stated that the representation dated 7th January 1996 addressed to the Principal Secretary (Preventive Detention ) , Government of Maharashtra, Mantralaya, Mumbai on behalf of the detenu was received in the Central Registry of Home Department on 10th January 1996 and the said representation was received in the concerned desk in the Home Department on 20th January 1996. The representation was scrutinised and submitted to the Deputy Chief Minister (Home) for his consideration on 23.1.1996 and the Deputy Chief Minister (Home) rejected the same on 24.1.1996 and the same was communicated by a letter dated 25.1.1996 to the advocate of the detenu. Obviously there is absolutely no explanation whatsoever as to why a period of 10 days from 10.1.1996 to 20.1.1996 was required to reach the same in the desk of the Home Department. With a view to affording an opportunity to the State Government to explain the delay, we permitted the State to file an additional affidavit. Accordingly the Desk Officer has filed his additional affidavit. In the additional affidavit in paragraph 2 it is stated that large amount of correspondence is received every day in the Central Registry of the Home Department; that there are 8 offices of the Ministers and Ministers of State who are looking after the work pertaining to Home Department; that large number of references/correspondence, addressed to these offices is forwarded to the Central Registry of Home Department, that there are 12 departments, three corporations and 54 desks under the Administrative Control of the Home Department. Correspondence from the above mentioned departments and offices as also from members of the public and other offices under the control of the Government of India are received on large scale in the Central Registry of the Home Department. That such correspondence comes to about 10,000 every month received by the Central Registry to open the correspondence and letters and then mark the same to the concerned desk, enter the same in the diary and thereafter send it onwards to the concerned desk in the Home Department. It is further stated that in the circumstances unless and until all such correspondence and letters are opened, it is difficult to ascertain whether such correspondence contains a representation made against an order of detention which is to be attended on priority basis. It is further stated that the representation dated 7.1.1996 was received in the Central Registry of the Home Department on 10.1.1996. 13the and 14th January 1996 were public holidays. After sorting out, the representation was received at the concerned desk of the Home Department on 20.1.1996 and it is contended that 10 days, which included two public holidays, may not be treated as undue delay.
4. Shri Chitnis relied upon the judgment of the division bench of this court reported in 1992 M.L.J. 1451- Anand @ Anna Murlidhar Power Vs. S. Ramamurthi, Commissioner of Police & ors wherein relying upon the Apex court judgment reported in AIR 1989 SC 1861- Rama Dhondu Borade vs. V.K.Saraf Commissioner of Police, it was held that it is necessary that the representation be attended to expeditiously and without delay within a reasonable time. Shri Chitnis also brought to our notice the observations of the Apex Court in the aforesaid case of Rama Dhondu Borade wherein it is clearly stated that whether or not the State Government has in a given case considered the representation made by the detenu as soon as possible, in other words, with reasonable dispatch must necessarily depend on the facts and circumstances of that case.
5. Shri Bagwe , learned Asst.Public Prosecutor submitted that the time formula should not be exclusively obsessive and unless there is supine indifference or calous negligence to attend to the representation, mere delay should not be considered as denial of the right of the detenu under article 22(5) of the Constitution of India. Shri Bagwe further submitted that the additional affidavit explains the delay. Shri Bagwe also relied upon the decision of the Apex Court reported in AIR 1990 SC 176 and paragraphs 37 and 38 in particular. Paragraph 38 of the said judgment reads as under :.
It is clear from the above statement that there was no laches or negligence on the part of the detaining authority or the other authorities concerned in dealing with the representation of the detenu. In Mst.L.M.S. Ummu Saleema v. B.B.Gujaral, (1981)3 SCC 317: (AIR 1981 SC 1191). it has been observed that the time imperative can never be absolute or obsessive, and that the occasional observations made by this court that each days delay in dealing with the representation must be adequately explained are meant to emphasis the expedition with which the representation must be considered and not that it is a magical formula, the slightest breach of which must result in the release of the detenu. In the instant case, the detaining authority has explained the delay in the disposal of the representation made by the detenu and, accordingly the order of detention cannot be rendered invalid on that ground.
6. Shri Bagwe also relied upon the decision of the Apex Court reported in AIR 1990 SC 1446- Abdul Salam alias Thiyyan vs. Union of India and ors and paragraph 12 thereof in particular wherein on the basis of the facts and circumstances of the case, the Apex Court held that from the explanation it can be seen that the representation was considered most expeditiously and there is no negligence or callous inaction or avoidable redtapism .
7. We have considered the so called explanation in the light of the submissions made by the learned counsel for the rival parties as well as in the light of the aforesaid decisions of the Apex Court . In our opinion the so called explanation is no explanation at all. It is extremely relevant to notice that as per the settled position of law it is incumbent upon the detaining authority to clearly inform the detenu of his right to make representation not only to the detaining authority but also to the State Govt. Central Govt. and the Advisory Board. It is also extremely relevant to notice that as a matter of fact in para 6 of the grounds the detaining authority has clearly given notice to the detenu in the following manner :.
You are further informed that you have a right to make a representation to the State Government against the order of detention and that you shall be afforded the earliest opportunity to make such a representation. If you wish to make representation to the State Government, you may address it to the Principal Secretary ( Preventive Detention ), Government of Maharashtra, Home Department, Mantralaya, Bombay.32 and send such representation through the Superintendent of Jail, wherein you have been detained.
8. Thus it is very clearly stated that the representation should be addressed to Principal Secretary (Preventive Detention) Government of Maharashtra, Home Department, Mantralaya, Bombay.32. The detaining authority must be aware that in majority of the case the detenu will be making representations and further it must be aware that as per the settled law representation has to be considered as expeditiously as possible. Ordinarily the State Government would be in fact anticipating representations from the detenus and must make enough provision to see that such representations are not relegated to the so-called Central Registry of the Home Department but are immediately forwarded to the Principal Secretary (Preventive Detention). If such an arrangement is not made, that itself, in our opinion is serious lapse on the part of the State Government. When a representation is addressed to the Principal Secretary (Prevention Detention) in our opinion that is sufficient indication that it relates to the detention and we find it difficult to appreciate, much less accept, the assertions in the affidavit that unless and until such correspondence and letters are opened, it is difficult to ascertain whether such correspondence contained representation made against the order of detention, which needs to be attended on priority basis.
9. In the facts and circumstances of the case we are of the clear opinion that the representation was carelessly not attended for 10 days and it is time that the State Government should remedy the situation. In the facts and circumstances of the case, in our opinion there is absolutely no explanation for the delay of 10 days in consideration of the representation made by the detenu, which clearly infringes the most valuable constitutional right of the detenu under article 22(5) of the Constitution of India i.e. getting his representation considered expeditiously by the State Government, which must result in the continued detention of the detenu becoming unconstitutional.
10. In the result petition succeeds and the continued detention of the detenu by name Motiram Padu Patil under order dated 29th December 1995 passed by the Commissioner of Police, Navi Mumbai under the provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug offenders Act, 1981 is hereby quashed and set aside and the detenu is ordered to be released and set free forthwith, unless otherwise lawfully required in any other case. Rule made absolute in the aforesaid terms.
Petition allowed.
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