PARVEZ KASHIMJI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THROUGH this writ petition, preferred under Article 226 of the Constitution of India, the petitioner who describes himself as the brother of the detenu Fakkerdey Sajjed Anwar has impugned the order dated 23/2/2001 passed by 2nd respondent - Joyce Shankaran, the Principal Secretary to the Government of Maharashtra (Preventive Detention), Home Department, Mantralaya, Mumbai, detaining the detenu, under Section 3 (1) of the Conservation of Foreign exchange and Prevention of Smuggling Act, 1974. The detention order along with the grounds of detention, which are also dated 23/2/2001, was served on the detenu on 31/5/2001 and their true copies are annexed as Annexures A and B respectively to this writ petition.

(2.) WE have heard the learned counsel for the parties. Since in our view a reference to the prejudicial activities of the detenu contained in the grounds of detention (Annexure-B) is not necessary for the adjudication of Ground 4 (viii) pleaded in the petition, on which ground alone in our judgment, this petition would succeed we are not adverting to them. Ground No. 4 (viii) in short is that the detenu made a representation to the Advisory Board, Detaining Authority and the State Government and the law mandates that the said representation should be considered expeditiously and the reply should also be communicated with the same expedition to the detenu. It has been pleaded in the ground that if the said obligation has not been discharged, the detention of the detenu would be violative of Article 22 (5) of the Constitution of India.

(3.) THE original letter dated 10. 9. 2000 apprising the detenu of the rejection of his representation has been produced before us by Mr. Maqsood Khan, learned counsel for the petitioner. Its relevant part reads thus : - " I am directed to refer to your representation dated 24/07/2001 addressed to the additional Chief Secretary (Home), Secretary, (PD) and Chairman, Advisory Board, constituted under the COFEPOSA Act, 1974, on the subject mentioned above and to state that your representation is carefully considered by the government. However, your request for release from detention under the aforesaid Act, it is regretted, has not been granted by the Government. " It's perusal would show that therein it has been mentioned that the detenu's representation dated 24. 07. 2001 addressed to the Additional Chief Secretary (Home), Secretary, (PD) and Chairman, Advisory Board, was carefully considered by the Government and detenu's request for release from detention has not been granted by the Government. It is, thus, manifest that the said letter dated 10/9/2001 does not show that the detenu has been communicated that his representation has been rejected by the detaining authority. THE Supreme Court in the case of Harish Pahwa v. State of U. P. (AIR 1981 SC 1126), in para 3 has laid down the principles that if a representation is made by the detenu to a certain authority then that authority is not only under an obligation to dispose off the same with the utmost promptitude but is also under an obligation to communicate its decision with same promptitude. In the instant case, we find that a perusal of letter darted 10/9/2001 does not show that the detenu has been communicated that his representation has been rejected by the detaining authority.