Bombay HC says detaining under MPDA without hearing plea is illegal

Observing that law had not been followed, the Bombay High Court has set aside an order of a District Magistrate taking a person under preventive custody.

The Jalgaon District Magistrate had passed an order on February 2 last year detaining Madhukar Ramkrushna Patil under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act (MPDA) to prevent him from acting in any manner prejudicial to the maintenance of public order.

However, the detenu made a representation to the Additional Chief Secretary (Home), which was not considered at all, prompting the court to hold that the law envisages that such representation made by a detenu should be considered.

As this had not been done, the detention order had been vitiated, Justice M S Sonak and Justice Abhay Oka said recently while hearing a petition filed by Patil.

"The facts of this case indicate that there is virtual non-consideration of the detenu's representation by Additional Chief Secretary (Home). As observed earlier, even delay in consideration of representation, would render the detention unconstitutional," the judges remarked.

"The representation must be taken up for consideration as soon as it is received and unless it is absolutely necessary to wait for assistance from some other source, it must be dealt with expeditiously and the final decision communicated to the detenu," said the bench.

In matters of preventive detention, there is a dual obligation upon the government and corresponding dual rights in favour of a detenu, namely to have his representation independently considered by the government, and to have that representation in the light of all facts and circumstances of the case considered by an Advisory Board, the judges opined.

The fact that Article 22(5) of the Constitution enjoined upon the Detaining Authority to afford the detenu the earliest opportunity to make a representation must implicitly mean that such a representation must, when made, be considered and disposed of as expeditiously as possible, they observed.

In this case, there is no consideration at all, much less disposal of the representation made by the detenu-petitioner. This is sufficient to vitiate the continued detention of the petitioner.