# • ' HAMIDA SARFARAZ QUREISHI v. M. S. KASBEKAR & OTHERS

- **Citation:** [1981] 1 S.C.R. 691
- **Court:** Supreme Court of India
- **Decided:** 1980-09-11
- **Case number:** Writ Petition No. 3403 of 1980
- **Bench:** R. S. Sarkaria, 0. Chinnappa Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hamida-sarfaraz-qureishi-v-m-s-kasbekar-others-8164
- **Pages:** 3

## Headnote

Right to be heard-Prevention of Black-Marketing and Maintenance Of
Supplies of Essential Commodities Act, 1980 (Act 7 of 1980) Section 1 l(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 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
detenu under Section 11(1) of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980. [693FJ.
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
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
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].
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.

## Text

• '
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 1 l(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 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
detenu under Section 11(1) of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980. [693FJ.
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
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
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].
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.
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 Commodities Act, 1980 (Act 7 of 1980) (for short, called PREBLACT).
691
c
I)
E
F
G
H
.il:92
:B
c
D
E
F
G
H
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.
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, 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 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
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 struggling to survive from a massive heart attack, and, as such, incapable
Qf moving out and appearing before the Board. It is stressed that the
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
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 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
(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, !.)
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 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
6 93
B
c
was peremptorily required to afford to the detenu a proper opportuD
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 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 .
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
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.
G
H