SUNIL TUKARAM DHIPLE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS Petition is directed against the order of detention passed by the Commissioner of Police. Brihan Mumbai on 14 -2 -2000. That order was passed under Section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers. Drug Offenders and Dangerous Persons Act. 1981 (as amended in 1996) in relation' to the present petitioner and he was directed to be detained by the very order of detention in the prison at Amravati with a view to maintaining of legal order and discipline in the area in Brihan Mumbai. Since then there is whatever no dispute before us that the detenue is detained in the prison at Amravati. After passing of this order in the month of February, the present petition challenging the order of detention was preferred by the detenue in the month of July, 2000 before this Bench. The learned Advocate on behalf of the petitioner has under the note at the foot of the petition informed to the Court that the petitioner had not moved any time previously before this Court in the said matter. The Petition was admitted for final hearing.

(2.) THE only challenge to the detention order that has been raised is with respect to the detention order failing to communicate, to the petitioner that, the petitioner had a right to make a representation within the first envisaged 12 days, after passing of the order of detention by requesting the detaining authority itself to consider his representation and cancel or modify the order etc. That the order so passed by the Commissioner of Police. Brihan. Mumbai, no such intimation has been given to the petitioner while conveying the grounds contained for passing the order there is no debate before us. On the authority of the recent decision of this Court there is also no debate before us that a detention order must communicate to the detenue that he possesses a right to make a representation to the 'detaining authority' itself and a communication regarding availability of such right to the detinue to facilitate the detenue to make such representation to the detaining authority itself viz. The Commissioner of Police. There is further no debate that such obligation is mandatory and has to be contained in the order of detention passed against such detenue under the above said provisions of the Act. There is also no debate before us that no such communication was in fact made. The return, on behalf of the respondent No. 2. The Commissioner of Police comments upon such subject by saying that there is no such need of informing a detenue about his being, able to make representation to the detaining authority within the first 12 days available under the provisions of the Act to him. Shri Dhote, learned Additional Public Prosecutor does not dispute before us this position of law that non communication in the order of detention regarding the position of such right to make representation to the detaining authority and thus making available an opportunity to make representation is fatal to the legality and validity of such detention order. On merits, therefore, Shri Daga learned Advocate for the petitioner set up only one submission that this failure to communicate about, the right to make representation to the detaining authority is fatal to the maintainability of the order.

(3.) SHRI Daga, learned Advocate appearing for the petitioner relies upon the observations of the Division Bench of this Court reported in the case of Ishwarlal Hiralal v. Union of India1 to support a view that if the cause of action or even a part of the cause of action arises within the administratively fixed territorial jurisdiction of this Bench, the Bench will have the constitutional right under Article 226 of the Constitution to entertain and decide such petition: He further pointed out that although the subject of jurisdiction may no more be relevant from the stage of admission until now as this Bench has already issued rule and as a matter of fact the jurisdiction of the Bench being the jurisdiction of the High Court under the Constitution, this question need not be gone into but then Shri Dhote wanted to strenuously contend that the question of jurisdiction should be considered by the Court and therefore, we allowed him to make submissions. According to him, since the order was passed in Bombay, it was the seat of the High Court in Bombay where the petition should have been filed.