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PETITIONER: SALIM RAJMOHMAD MUSLIM

       Vs.

RESPONDENT: STATE OF GUJARAT & ORS.

DATE OF JUDGMENT03/05/1988

BENCH: SEN, A.P. (J) BENCH: 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.

HEADNOTE:      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

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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]

JUDGMENT:      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

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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. 832