Unexplainable delay in considering detenu’s representation is fatal to continued detention; Bombay High Court quashes preventive detention order

Bombay High Court

Bombay High Court: In a preventive detention case, the Division Bench of A.S. Gadkari and Milind N. Jadhav, JJ., held that any unreasonable and unexplainable delay in considering the representation of the detenu is fatal to the continued detention of the detenu.

By the instant Petition, the petitioner had challenged his Order of detention dated 17-05-2022 passed by the Commissioner of Police under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons, and Video Pirates, Sand Smugglers and Persons engaged in Black Marketing of Essential Commodities Act, 1981.

Admittedly, the petitioner had addressed a detailed representation challenging his Detention Order to the Government through the Superintendent of Jail, Nagpur Central Prison, Nagpur. However, the Deputy Secretary, Government of Maharashtra, Home Department (Special) revealed that the representation was not received by the designated Competent Authority. The Superintendent of Nagpur Central Prison also confirmed that her office had inadvertently committed a mistake in forwarding the representation by email and post to the office of Hon. Secretary, Counseling Board (Special-10), Government of Maharashtra instead of forwarding it to the Competent Authority i.e., the Additional Chief Secretary (Home), Home Department (Special), Government of Maharashtra.

The Court noted that there had been a gross delay in forwarding the representation given by the Petitioner to the concerned Authority, due to which his representation could not be considered by the State Government expeditiously and in accordance with law. In Rashid Kapadia v. Medha Gadgil, (2012) 11 SCC 745, the Supreme Court had held that the right of a person, who is preventively detained to make a representation and have it considered by the authority concerned as expeditiously as possible is a fundamental right under Article 22(5). Following the aforesaid decision, the Court held that any unreasonable and unexplainable delay in considering the representation is fatal to the continued detention of the detenu.

In view of the above, the Court concluded that the impugned detention order could not be sustained. Accordingly, the aforesaid detention order was set aside, and the authorities were directed to release the petitioner-detenu.

[Devendra Ramlal Bidlan v. Commissioner of Police, 2022 SCC OnLine Bom 5148, decided on 18-11-2022]


*Kamini Sharma, Editorial Assistant has put this report together.


Advocates who appeared in this case :

For the Petitioner: Advocate Jayshree Tripathi;

For the Respondents: APP J.P. Yagnik;

Mr. J.P. Yagnik, APP for State.

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