HAMIDA SARFARAZ QUREISHIversusM. S. KASBEKAR & OTHERS

                                                                                              691




•   '
                            HAMIDA SARFARAZ QUREISHI
                                                v.
                               M. S. KASBEKAR & OTHERS
                                     September 11, 1980
                    (R. S. SARKARIA AND 0. CHINNAPPA REDDY, JJ.]
             Right to be heard-Prevention of Black-Marketing and Maintenance Of
        Supplies of Essential Commodities Act, 1980 (Act 7 of 1980) Section 1l(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          c
        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 hnlll'd
        was a farce and amounted to a negation of the statutory right.
            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            I)
        detenu under Section 11(1) of the Prevention of Blackmarketing and Mainte-
        nance of Supplies of Essential Commodities Act, 1980. [693FJ.
             Under Section 11(1) .of the PREBLACT, the authority concerned was pe-
        remptorily required to afford to the detenu a proper opportunity to be heard
        in persoll 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                             E
        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 trans-
        mission 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].
                                                                                               F
             ORIGINAL JURISDICTION : Writ Petition No. 3403 of 1980.
             Under Article 32 of the Constitution.
            Ram Jethmalani, and Mis~ Rani Jethmalani for the Petitioner_
            P. R. Mrldul, M. M. Abdul Khader and M. N. Shroff for tlie
        Respondents.
                                                                                              G
             The Judgment of the Court was delivered by
              SARKARIA, J.-This is a petition for issue 'Of a writ of habe.as
        corpus.   The petitioner is the wife of the detenu, Sarfaraz Maqbool
        Qureishi who has been detained under Section 3 of the Preventfon of
        Blackmarketing and Maintenance of Supplies of Essential Commo-
        dities Act, 1980 (Act 7 of 1980) (for short, called PREBLACT).                        H
.il:92                      SUPREME COURT REPORTS               [1981] 1 S.C.R.

         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
         suppiled to him on the same day.
:B
              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 represerttation dated
         June 27, 1980 was addressed to the detaining authority, Commis-
         sioner .of Police, Bombay, but the latter refused to consider the same
c         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 irt 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
D         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 the,n in the Intensive Care Unit of the Hospital struggl-
          ing to survive from a massive heart attack, and, as such, incapable
          Qf moving out and appearing before the Board. It is stressed that the
E
          detenu was in such a disabled condition that he could not even com-
         ·municate with anybody.
              We will fake 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
 F
          no law providing for preventive detention shall authorise the deten-
          tion 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
 G        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 oppo11unity" of making a
           representation against the order of hi:; 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
  H         (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
                   HAMIDA v. M. s. KASBEKAR (Sarkaria, !.)                 6 93

  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 U of the Act pre·scribes the procedure
  of Advisory Boards. Sub-section, (1) of the Section, inter alia,
  provides that if in any particular case, the person concerned (detenu)
  desires to be heara in person; the Advisory Board shall, after hear-
  ing in person, submit its report to the appropriate Government within      B
  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.             c
       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 opportu-        D
  nity 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 wa.s 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       E
  was confined, to inform about the meeting of the Board. Even that
  infotmation was given only to .the wife of the detenu for further
  transmission to the detenu who was then precariously ill and dis-
  abled 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 .      F
  the Act. l
       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 rs devoid of merit. The detenu          G
  was in the .Intensive Care Unit of the Hospital under heart attack
  and was in the circumstances, physically incapable of doing any-
  thing 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
                                                                             H
  release of the detenu .
. . V.D.K.                                             Petition allowed.