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PETITIONER: HAMIDA SARFARAZ QUREISHI

       Vs.

RESPONDENT: M. S. KASBEKAR & OTHERS

DATE OF JUDGMENT11/09/1980

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH REDDY, O. CHINNAPPA (J)

CITATION:  1981 AIR  459            1981 SCR  (1) 691

ACT:      Right to  be heard-Prevention  of  Black-Marketing  and Maintenance of  Supplies of  Essential Commodities Act, 1980 (Act 7  of 1980)  Section 11(a)  read with  clause  4(a)  of Article 22 of the Constitution-Detenu seriously disabled and hospitalised  in  the  Intensive  Care  Unit-Notice  of  the meeting of  the Advisory  Board meeting given an hour or two earlier to  the  scheduled  meeting  and  that  too  to  the detenu’s wife  in the  hospital-The so-called opportunity of being heard  was a  farce and  amounted to a negation of the statutory right.

HEADNOTE:      Allowing the petition, the Court ^      HELD :  The so-called  opportunity of  being  heard  in person by  the Advisory Board was a farce, and amounted to a negation of  the right conferred on the detenu under Section 11(1) of  the Prevention  of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980. [693F].      Under Section  11(1) of  the  PREBLACT,  the  authority concerned was  peremptorily required to afford to the detenu a proper  opportunity to  be heard in person by the Advisory Board. Such  an opportunity  was not  given to  the  detenu, here, despite  request. No  reasonable notice about the date of meeting of the Advisory Board was given to the detenu. It was only about one or two hours before the scheduled time of the meeting  of the  Board that a police officer went to the hospital, in  which the detenu was confined, to inform about the meeting  of the  Board. Even  that information was given only to  the wife  of the detenu for further transmission to the detenu  who was  then precariously ill and disabled from doing  anything.  In  such  circumstance,  the  respondents’ argument that  the detenu should have asked for extension of time is devoid of merit. [693D-E, G].

JUDGMENT:      ORIGINAL JURISDICTION : Writ Petition No. 3403 of 1980.      Under Article 32 of the Constitution.      Ram  Jethmalani,  and  Miss  Rani  Jethmalani  for  the Petitioner.

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    P. R.  Mridul, M.  M. Abdul Khader and M. N. Shroff for the Respondents.      The Judgment of the Court was delivered by      SARKARIA, J.-This  is a petition for issue of a writ of habeas corpus.  The petitioner  is the  wife of  the detenu, Sarfaraz  Maqbool  Qureishi  who  has  been  detained  under Section  3   of  the   Prevention  of   Black-marketing  and Maintenance of  Supplies of  Essential Commodities Act, 1980 (Act 7 of 1980) (for short, called PREBLACT). 692 The order  was issued  by the Commissioner of Police, Bombay on May 28, 1980. It was served on the detenu on May 29, 1980 when, according  to the  averments in  the writ petition, he was an  indoor patient  in the St. George Hospital, Lucknow, struggling for  his life, due to a massive heart attack. The grounds of  detention were  also supplied to him on the same day.      The detenu is a dealer in kerosene.      Mr.  Jethmalani,  appearing  for  the  petitioner,  has canvassed five  points before  us. The first point is that a representation dated  June 27,  1980 was  addressed  to  the detaining authority, Commissioner of Police, Bombay, but the latter refused  to consider  the same and this amounts to an infringement of  the constitutional obligation implied under Article 22(5)  of the  Constitution as  well as Section 4 of the Act.  The second  point urged  by the learned counsel is that the  detenu had  in  his  representation,  expressed  a desire that  he be  heard in  person by  the Advisory Board; that this  right was denied to him, in as much as on the day on which  the Advisory  Board was  to hold  its  meeting,  a police officer  at about  1 p.m. came to the Prince Ali Khan Hospital, and  informed the  detenu’s wife  that the  detenu could appear before the Advisory Board in the afternoon that the detenu  was then  in the  Intensive  Care  Unit  of  the Hospital struggling  to survive from a massive heart attack, and, as  such, incapable  of moving out and appearing before the Board.  It is  stressed that  the detenu  was in  such a disabled condition  that he  could not even communicate with anybody.      We will  take up  the second  point first,  because the petition can be disposed of on this very ground.      Clause  (4)(a)   of  Article  22  of  the  Constitution mandates that  no law  providing  for  preventive  detention shall authorise  the detention  of a  person  for  a  longer period  than   three  months,   unless  an   Advisory  Board consisting  of   persons   possessing   the   qualifications specified therein,  has reported  before the  expiry of  the said period  of three  months that  there is  in its opinion sufficient cause  for such  detention.  Clause  (5)  of  the Article requires  that the  grounds of  detention  shall  be communicated to  the detenu "as soon as may be" and he shall be  afforded   "the  earliest   opportunity"  of   making  a representation against  the order  of his  detention. Clause (7) (c)  of the  Article empowers Parliament to prescribe by law the  procedure to be followed by an Advisory Board in an inquiry under  sub-clause (a)  of clause (4). In exercise of its power  under  Entry  3  of  List  III  of  Schedule  VII Parliament has  enacted the  PREBLACT (Act  7 of  1980).  In compliance with the mandate in clause 4(a) of Article 693 22, Section  9 of  the Act  provides for the Constitution of Advisory  Board   and  matters   connected   therewith.   In accordance with clause 7(C) of Article 22, Section 11 of the Act prescribes the procedure of Advisory Boards. Sub-section (1) of  the Section,  inter alia,  provides that  if in  any

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particular case, the person concerned (detenu) desires to be heard in  person, the Advisory Board shall, after hearing in person, submit  its report  to  the  appropriate  Government within seven weeks from the date of detention.      Section 12(2)  of the  Act provides  that in  any  case where the  Advisory Board  has reported that there is in its opinion  no   sufficient  cause   for  the   detention,  the appropriate Government  shall revoke the detention order and cause the detenu to be released forthwith.      In  the  instant  case,  the  detenu  had  through  his representation  dated   June  27,   1980  to  the  detaining authority, expressed  a desire to appear before the Advisory Board and  be heard  in person.  Under Section  11(1) of the PREBLACT therefore, the authority concerned was peremptorily required to  afford to the detenu a proper opportunity to be heard in  person by  the Advisory  Board. But in the instant case, such  an opportunity  was not  given  to  the  detenu, despite request.  Firstly, no  reasonable notice  about  the date of  meeting of  the Advisory  Board was  given  to  the detenu. It  was only  about one  or  two  hours  before  the scheduled time  of the  meeting of the Advisory Board that a police officer  went to the Hospital in which the detenu was confined, to  inform about  the meeting  of the  Board. Even that information  was given  only to  the wife of the detenu for  further   transmission  to  the  detenu  who  was  then precariously ill and disabled from doing anything. Thus, the so-called opportunity  of  being  heard  in  person  by  the Advisory Board,  was a  farce, and amounted to a negation of the right conferred on him under Section 11(1) of the Act.      Mr. Mridul  appearing for the Respondent contended that the detenu  should have  asked for  extension of the date of hearing and  for a  short  adjournment  of  hearing  by  the Advisory Board, but he made no such request. The argument is devoid of  merit. The  detenu was in the Intensive Care Unit of  the   Hospital  under   heart  attack  and  was  in  the circumstances, physically incapable of doing anything of the kind.      These,  then  are  the  reasons  for  our  Order  dated September 10, 1980, whereby we had allowed the writ petition and directed the release of the detenu. V.D.K.                                     Petition allowed. 694