Salim Rajmohmad
Muslim Vs. State of Gujarat & Ors [1988] INSC 130 (3 May 1988)
Sen,
A.P. (J) Sen, A.P. (J) Sharma, L.M. (J)
CITATION:
1988 SCR (3) 828 1988 SCC (3) 476 JT 1988 (2) 297 1988 SCALE (1)833
ACT:
Constitution
of India, 1950: Article 22(5)-Detenu's right
of representation a valuable constitutional right- Government to ensure strict
observance of this constitutional safeguard.
Gujarat Prevention of Anti-Social
Activities Act, 1985:
Section
3(2)-Detention order-Representation of detenu- Failure of Government to
consider and dispose of-Whether detention illegal.
HEAD NOTE:
The
petitioner, who was detained under sub-section (2) of section 3 of the Gujarat
Prevention of Anti-Social Activities Act, 1985, by an order dated 11th june,
1987 filed a writ petition in this Court, alleging that both the detaining
authority as also the State Government had not considered the representation,
dated 15th july, 1987 made by him, with utmost promptitude and that, in fact,
there was no disposal of the said representation by these authorities.
In the
counter-affidavit filed by the detaining authority, it was averred that the
representation, received by it on 21st July 1987 was duly considered and rejected
the same day.
Allowing
the appeal, ^
HELD:
The right of representation under Article 22(5) of the Constitution of India is
a valuable and constitutional right. The Government is expected to ensure that
the constitutional safeguards embodied in Article 22(5) are strictly observed.
[830E-F] Mohinuddin v. District Magistrate, Beed & Ors., [1987] 4 SCC 58
relied on.
In the
instant case, the petitioner had the right to make a representation not only to
the detaining authority but also to the State Government which had the power to
revocation. Although the representation made by him to the detaining authority
has been considered and rejected, this is not a substantial compliance of the
829 constitutional rights enshrined in Article 22(5) of the Constitution. The
allegation made by the petitioner that he made a further representation to the
State Government had not been controverted. The State Government had disdained
from filing any counter-affidavit for obvious reasons.
[830C-E]
The wholly unexplained and unduly long delay-rather the undeniable failure on
the part of the State Government in the disposal of the representation, renders
the detention of the petitioner iilegal. [829G-H] The order of detention made
under sub-section (2) of s. 3 of the Gujarat Prevention of Anti-Social
Activities Act, 1985 is accordingly quashed. [831D]
CRIMINAL
ORIGINAL JURISDICTION: Writ Petition (Crl.) No. 124 of 1988;
(Under
Article 32 of the Constitution of India) M.C. Kapadia, Y.P. Dhingra, B.K. Satija and S.S. Khanduja for the
Petitioner.
P.S. Poti
and M.N. Shroff for the Respondent.
The
following Order of the Court was delivered:
O R D
E R
After
hearing learned counsel for the parties at quite some length, we are satisfied
that the failure on the part of the State Government to consider and decide the
representation made to them by the petitioner against his detention by an order
of detention dated 11th June, 1987 passed by the Commissioner of Police, Surat
City under sub- s. (2) of s. 3 of the Gujarat Prevention of Anti-Social
Activities Act, 1985, makes his continued detention invalid and
constitutionally impermissible. Apart from various other contentions, Shri Kapadia,
learned counsel for the petitioner rightly contended that there was no
explanation at all as to why the representation made by the petitioner to the
State Government was not attended to and kept pending. In view of the wholly
unexplained and unduly long delay-rather the undeniable failure on the part of
the State Government in the disposal of the representation-renders the
detention of the petitioner illegal. On the view that we take, there is no need
to deal with various contentions 830 raised by him on behalf of the petitioner.
The learned counsel drew our attention to paragraph 8(e) of the Writ Petition
where the petitioner avers inter alia that he had made a representation dated
15th July, 1987 to the Police Commissioner, Surat City, as also to the State
Government but 'both the authorities had not considered the representation so
made with utmost promptitude and that there was in fact no disposal of the said
representation by the detaining authority as well as the State Government'.
This
assertion of his is sought to be met by the Commissioner of Police, Surat City, the detaining authority, in the counter-affidavit. It is
averred in paragraph III(e) that he had received the representation on 21st
July, 1987 and rejected it on the same day after due consideration.
This
is not a substantial compliance of the constitutional rights enshrined in Art. 22(5)
of the Constitution. The petitioner had the right not only to make a
representation to the detaining authority but also to the State Government
which had the power of revocation. In view of this, Shri P.S. Poti, learned
counsel appearing on behalf of the State Government, with his usual fairness,
rightly accepts that the denial in paragraph III(e) of the counter-affidavit
was not sufficient. The fact remains that the allegation made by the petitioner
that he had made a further representation to the State Government has not been controverted.
The State Government has disdained from filing any counter-affidavit for
obvious reasons. In Mohinuddin v. District Magistrate, Beed & Ors., [1987]
4 SCC 58 this Court had occasion to deal with this aspect. In that case, there
was wholly unexplained, unduly long delay in the disposal of the representation
by the State Government and it was held that further detention of the detenu
was rendered invalid and constitutionally impermissible. The right of
representation under Art. 22(5) is a valuable constitutional right and it is
expected that the Government will ensure that the constitutional safeguards
embodied in Art. 22(5) are strictly observed. It was observed by one of us (SEN,J.):
"We
say and we think it necessary to repeat that the gravity of the evil to the
community resulting from anti-social activities can never furnish an adequate
reasons for invading the personal liberty of a citizen, except in accordance
with the procedure established by the Constitution and the laws. The history of
personal liberty is largely the history of insistence on observance of the
procedural safeguards." It was next observed:
831
"It goes without saying that the constitutional right to make a
representation guaranteed by Art. 22(5) must be taken to include by necessary
implication the constitutional right to a proper consideration of the
representation by the authority to whom it is made. The right of representation
under Art. 22(5) is a valuable constitutional right and is not a mere
formality.
The
representation made by the appellant addressed to the Chief Minister could not
lie unattended to in the portals of the Secretariat while the Chief Minister
was attending to other political affairs." In view of the failure in the
disposal of the representation by the State Government, it must be held that
the further detention of the petitioner is illegal and constitutionally
impermissible.
The
writ petition must therefore succeed and is allowed. The order of detention
passed by the Commissioner of Police, Surat City under sub-s. (2) of s. 3 of the Gujarat
Prevention of Anti-Social Activities Act, 1985 is accordingly quashed. We
direct that the petitioner be set at liberty forthwith.
N.P.V.
Petition allowed.
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