Karnataka High Court

Mrs. Farhana vs The State Of Karnataka on 10 August, 2021

Author: Aravind Kumar Gowda

                             1

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF AUGUST, 2021

                         PRESENT

       THE HON'BLE MR. JUSTICE ARAVIND KUMAR
                            AND
      THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA

                   W.P.H.C. NO.51/2021

BETWEEN:

MRS. FARHANA
W/O SYED NAZEEM
AGED ABOUT 38 YEARS
R/A NO.35, VENKATESHPURAM
PILLANNA GARDEN 2ND STAGE
BENGALURU - 560 045.
                                           ...PETITIONER
(BY SRI. ANEES ALI KHAN, ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA
       BY ITS SECRETARY
       HOME DEPARTEMENT
       VIDHANA SOUDHA
       BANGALORE - 560 001.

2.      THE COMMISSIONER OF POLICE
        NO.1, INFANTRY ROAD
        BANGLORE - 560 001.

3.     THE SUPERINTENDENT
       BANGALORE CENTRAL PRISON
       PARAPANA AGRAHARA
       BANGALORE - 560 100.

                                         ...RESPONDENTS
(BY SRI. V.S. HEGDE, S.P.P-II)
                                 2



    THIS W.P.H.C. IS FILED UNDER ARTICLE 226 OF
CONSTITUTION OF INDIA PRAYING TO DECLARE THE
DETENTION OF SYED NAZEEM S/O BYL NAWAB BY ORDER
NO.HD/BCP/CRM/PIT-NDPS/DTN/2020 DATED 30.09.2020
VIDE ANNEXURE-A PASSED BY RESPONDENT NO.2 AND
CONFIRMED BY RESPONDENT NO.1 BY ORDER NO.HD 34-
PND-2020 DATED 22.12.2020 VIDE ANNEXURE-E, AS
ILLEGAL AND SET THE DETENUE AT LIBERTY.

    THIS PETITION HAVING BEEN HEARD AND
RESERVED, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY ARAVIND KUMAR J, MADE THE
FOLLOWING:


                           ORDER

Petitioner who is the wife of Sri Syed Nazeem

(detenue) has preferred this petition to declare the

detention order No.02/BCP/CRM/PIT-NDPS/DTN/2020

dated 30.09.2020 (Annexure-A) passed by second

respondent and confirmed by first respondent by order

No.HD 34 PND 2020 dated 22.12.2020 (Annexure-E) as

illegal and to set the detenue at liberty.

2. Petitioner has contended that Section 3(1) of

the Prevention of Illicit Traffic in Narcotic Drugs and

Psychotropic Substances Act, 1988 (for short 'PITNDPS

Act') empowers the authorities specified thereunder to

pass detention order and the Commissioner of Police

namely, second respondent is not entitled to pass the

detention order dated 30.09.2020 (Annexure-A). It is

further contended that there cannot be any delegation of

power to the Commissioner of Police to pass an order

and as such, order of detention is illegal and liable to be

set aside.

3. Further grounds urged in the writ petition is

that under Section 9(b) of the PITNDPS Act, 'appropriate

Government' has to refer the matter to the Advisory

Board within five weeks and records do not disclose as to

who has referred the matter to the Advisory Board. It is

further urged that detenue was produced before the

Advisory Board through video conference for the first

time on 25.11.2020 i.e., after expiry of seven weeks and

five days as the detenue was under detention since

01.10.2020 and on account of reference not being made

to the Advisory Board within five weeks, same is liable to

be set aside. Grievance of the petitioner is that order of

detention has been mechanically passed and there is

non-application of mind and there is no material to

indicate that respondents have gone through the entire

material and derived substantive satisfaction before

passing the detention order. Hence, on these grounds

and amongst others as urged in the petition, it has been

prayed to set the detenue at liberty by quashing the

impugned orders.

4. On being notified, respondents have entered

appearance and filed their statement of objections.

Refuting the contentions raised in the petition, it has

been contended that there is no error much less illegality

in the impugned orders passed and as such, they have

sought for dismissal of the petition. It is contended that

under Section 3 of PITNDPS Act, Officers competent to

pass orders have been specified and on the basis of

report dated 11.09.2020 submitted by the Police

Inspector, K.G.Halli Police Station, Commissioner of

Police, Bengaluru has passed an order under Section

3(1) of the PITNDPS Act. It is also contended that by

virtue of power conferred under Section 3(1) of PITNDPS

Act, appropriate Government has empowered the Officers

specified in the notification dated 30.01.2020 (Annexure-

R2) and by virtue of the same, second respondent has

passed the order of detention under Section 3(1). He

would also submit that appropriate Government by

communication dated 08.10.2020 (Annexure-R4) has

intimated the Central Government under Section 3(2)

about the order of detention passed against the detenue.

It is also contended that there is due compliance of

Section 9(b) of PITNDPS Act and hence, respondents

have prayed for dismissal of the petition. Affidavit dated

14.07.2021 of the Additional Chief Secretary,

Department of Home came to be filed on 15.07.2021

contending interalia that notification dated 30.01.2020

(Annexure-R2) has been issued in exercise of the power

conferred under Section 3(1) of PITNDPS Act which

empowered the second respondent to pass the detention

order. It is also contended that second respondent is of

the rank of Principal Secretary to Government and he is

in the pay scale of Principal Secretary of Government

and as such, he is competent to pass the detention order

under Section 3(1) of PITNDPS Act. It is also contended

that Under Secretary is the junior most Officer of the 1st

rung of the Secretariat and is an Officer within the

definition of the 'appropriate Government' as defined

under Section 2(a) of PITNDPS Act as stipulated under

the Karnataka Government Secretariat Manual of Office

Procedures (Revised) 2005 and said Officer is authorised

to issue orders in the name of the Governor of Karnataka

under Rule 19 of the Karnataka Government

(Transaction of Business) Rules, 1977. Hence,

contending that in terms of Section 9(f) and Section 11 of

PITNDPS Act, order of detention dated 22.12.2020

(Annexure-E) issued by the said Officer is in conformity

with Rule 19 and as such, they have prayed for dismissal

of the petition.

5. Sri Anees Ali Khan, learned Advocate

appearing for petitioner has reiterated the grounds urged

in the writ petition and has sought for petition being

allowed by relying upon the following judgments:

             1)         2000 CRI.L.J. 805
                        STATE OF M.P. vs BHUPENDRA SINGH




            2)      Order dated 19.12.2007 passed in
                    WPHC No.100/2007.

6. Per contra, Sri V.S.Hegde, learned SPP-II

appearing for the State has reiterated the contentions

raised in the statement of objections and has sought for

dismissal of petition.

7. Having heard the learned Advocates

appearing for parties, we are of the considered view that

following point would arise for consideration:

            "Whether       impugned        order      dated
            30.09.2020           (Annexure-A)        passed

by second respondent and order dated 22.12.2020 (Annexure-E) confirmed by first respondent suffers from any illegality or not?

8. In the background of grounds urged in the

writ petition, we are of the considered view that it would

be apt and appropriate to extract the relevant Sections of

PITNDPS Act namely, Sections 2(a), 3 and 9 pressed into

service and they read:

"2. Definitions.- In this Act, unless the context otherwise requires,-

(a) "appropriate Government"

means, as respects a detention order made by the Central Government or by an officer of the Central Government, or a person detained under such order, the Central Government, and as respects a detention order made by a State Government or by an officer of a State Government, or a person detained under such order, the State Government;

3. Power to make orders detaining certain persons.- (1) The Central Government or a State Government, or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner) that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary so to do, make an order directing that such person be detained.

(2) When any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order.

(3) For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days, from the date of detention.

9. Advisory Boards.- For the purposes of sub-clause (a) of clause (4) and sub-clause

(a) the Central Government and each State Government shall, whenever necessary, constitute one or more Advisory Boards each of which shall consist of a Chairman and two other persons possessing the qualifications specified in sub-clause (a) of clause (4) of Article 22 of the Constitution;

(b) save as otherwise provided in Section 10, the appropriate Government shall, within five weeks from the date of detention of a person under a detention order, make a reference in respect thereof to the Advisory Board constituted under clause (a) to enable the Advisory Board to make the report under sub-clause (a) of clause (4) of Article 22 of the Constitution;

(c) the Advisory Board to which a reference is made under clause (b) shall after considering the reference and the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the

purpose through the appropriate Government or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard in person, after hearing him in person, prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within eleven weeks from the date of detention of the person concerned;

(d) when there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board;

(e) a person against whom an order of detention has been made under this Act shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential;

(f) in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its

opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith."

9. A plain reading of Section 3 of PITNDPS Act

would indicate that any Officer of State Government not

below the rank of a Secretary to that Government,

specially empowered for the purposes of said Section

may if satisfied with respect to any person (including a

foreigner) that, with a view to preventing him from

engaging in illicit traffic in narcotic drugs and

psychotropic substances, it is necessary so to do, can

make an order directing that such person is to be

detained.

10. Sub-section (2) of Section 3 of PITNDPS Act

mandates that when the order of detention is made by a

State Government or by an Officer empowered by the

State Government, then, in such an event, the State

Government is required to send a report in respect of the

order so made to the Central Government within 10

days. Sub-section (3) of Section 3 mandates that for the

purposes of clause (5) of Article 22 of Constitution of

India, communication to a person detained in pursuance

of a detention order, the grounds of which the order has

been made has to be made as soon as may be after

detention, but ordinarily not less than five days and in

exceptional circumstances for the reasons to be recorded

in writing, not later than fifteen days from the date of

detention.

11. On such order of detention being passed

under Section 3(1) and same being executed, has to

make a reference in respect of such detention order

within five weeks from the date of detention to the

Advisory Board constituted under clause (a) of Section 9

to enable such Advisory Board to make a report under

sub-clause (a) of clause (4) of Article 22 of the

Constitution of India. The Advisory Board to which a

reference is made under clause (b) shall after considering

reference and the materials placed before it and after

calling for such further information as it may deem

necessary from the appropriate Government or from any

person and if in any particular case, Advisory Board

considers it essential so to do or if the person concerned

desires to be heard in person, after hearing him in

person, prepare its report specifying its opinion as to

whether or not there is sufficient case for the detention

of the person concerned and submit a report to the

appropriate Government within 11 weeks from the date

of detention of the person concerned.

12. Under clause (f) of Section 9, the appropriate

Government is empowered to confirm the detention order

and continue the detention of the person so detained for

such period as it thinks fit, if opinion of the Advisory

Board so indicate and in the event of Advisory Board

opining there is no sufficient cause for detention of the

person concerned, appropriate Government is required

to revoke the detention order and cause the person to be

released forthwith.

13. Thus, emphasis in clause (f) of Section 9 is to

the expression 'appropriate Government' which will have

to confirm the order of detention if the opinion rendered

by the Advisory Board is to the effect there is sufficient

cause for the detention of such person. As noticed

herein above, appropriate Government has been defined

under clause (a) of Section 2 of PITNDPS Act and a plain

reading of the above provision would indicate that

appropriate Government means as respects a detention

order made by a State Government or by an Officer of a

State Government or the State Government itself. In

other words, order of detention when passed by the State

Government, it has to be necessarily by an Officer of the

State Government who is not below the rank of a

Secretary. When this provision is read along with clause

(f) of Section 9, it would clearly indicate that where

Advisory Board under clause (c) of Section 9 prepares a

report and submits the same to the appropriate

Government by opining there being sufficient cause for

detention of such person, then, 'appropriate Government'

would require to confirm the detention order. Clause (a)

of Section 2 defines 'appropriate Government' to mean

an Officer of the State Government or the State

Government itself.

14. Now turning our attention to the facts on

hand, we notice that order dated 30.09.2020 (Annexure-

A) has been passed by the Commissioner of Police,

Bengaluru city. Sub-section (1) of Section 3 empowers

any officer of the State Government not below the rank of

the Secretary to that Government specially empowered

for the purpose of sub-section (1) of Section 3 to pass an

order or the State Government itself to pass the order.

In the instant case, the State Government, by virtue of

the powers conferred under Section 3(1) has empowered

the Officers specified thereunder namely, (i)

Commissioner of Police and (ii) Range Inspector General

of Police. Said Officers being specially empowered for the

purposes of sub-section (1) of Section 3 by the State

Government to pass orders under Section 3(1) , it cannot

be gainsaid by the petitioner that Commissioner of Police

is a delegate of the State Government or the State

Government has abdicated to exercise its power and

there has been delegation of powers. As such,

contention raised in that regard cannot be accepted.

15. That apart, document No.1 annexed to the

affidavit dated 14.07.2021 filed by the Additional Chief

Secretary, Department of Home would also clearly

indicate that Commissioner of Police, Bengaluru is of the

rank of Principal Secretary to Government drawing the

payscale equivalent to the Principal Secretary namely, at

Rs.1,82,200-2,24,000, Level - 15 as indicated in the

notification No.G.S.R.870(E) dated 08.09.2016. Thus,

Additional Director General of Police and Commissioner

of Police, Bangalore city are of the rank of a Principal

Secretary to Government and they are competent to pass

the order under Section 3(1) of PITNDPS Act as they are

specially empowered for the purposes of said Section by

the appropriate Government.

16. As already noticed herein above, clause (f) of

Section 9 of PITNDPS Act mandates that appropriate

Government may confirm the detention order in every

case where Advisory Board has reported that in its

opinion there is sufficient case for detention of a person.

Clause (a) of Section 2 of PITNDPS Act which defines the

expression "appropriate Government" would indicate that

insofar as the detention order made by a Government,

same is to be confirmed by such appropriate

Government or by an officer of the State Government. In

exercise of the powers conferred by clauses (2) and (3) of

Article 166 of the Constitution of India, for convenient

transaction of the business of Government of Karnataka,

Rules known and called as 'The Karnataka Government

(Transaction of Business) Rules, 1977 has been made.

Under Rule 2(e) of the said Rules, word 'Secretary' has

been defined to mean and include Under Secretary apart

from others as enumerated thereunder. Rule 19(1) of the

said Rules empowers the Under Secretary amongst other

Officers to authenticate the orders or instruments made

and executed in the name of Governor of Karnataka.

Said Rule reads:

"19.(1) Orders and instruments made and executed in the name of the Governor of Karnataka, shall be authenticated by the signature of a Principal Secretary, a Secretary, an Additional Secretary, a Special Secretary, a Joint Secretary, a Deputy Secretary, an Under Secretary, a Desk Officer or any other officer holding these posts on ex-

officio basis or by such other officer as may be specially empowered in that behalf by the Governor in the manner specified below, and such signature shall be deemed to be the proper authentication of such order or instrument.

By order and in the name of the Governor of Karnataka,

(signature) Name and designation of the Officer authorised to sign."

17. Thus, under Secretary of the State

Government being empowered to issue confirmation of

detention order in terms of Section 9(f) read with Section

11 of PITNDPS Act, has issued the impugned order dated

22.12.2020 and there is no infirmity in that regard. As

such, contention raised in that regard stands rejected.

18. The chronology of dates commencing from

date of order of detention till the date of report of the

Advisory Board received by the State Government is

enumerated in the following tabular column.

Sl.No. Particulars Annexures if Date any 1 Order of detention A 30.09.2020

2 Detenue taken to Nil 01.10.2020 custody 3 Order of detention Nil 01.10.2020 served on the detenue 4 Report of detention order R4 08.10.2020 forwarded to Central Government 5 Reference 27.10.2020 received by Nil Advisory Board 6 First meeting of 25.11.2020 Advisory Board Nil

7 Second meeting of Nil 04.12.2020 Advisory Board 8 Report of the Advisory Board Nil 11.12.2020 received by the State Government

As per the mandate of clause (b) of Section 9,

reference by the appropriate Government to the Advisory

Board is required to be made within five weeks from the

date of detention of a person. When five (5) weeks period

is reckoned from date of detention order i.e., 01.10.2020,

it would expire on 05.11.2020. In the instant case, the

detenue was detained on 01.10.2020 and reference has

been made by appropriate Government within five weeks

and reference so made by State Government has been

received by the Advisory Board on 27.10.2020 which is

well within the period of five weeks prescribed under

clause (b) of Section 9 of PITNDPS Act. Clause (c) of

Section 9 of PITNDPS Act mandates that report of the

Advisory Board has to be submitted to the appropriate

Government within 11 weeks from the date of detention

of the person concerned. Thus, if the period of 11 weeks

is reckoned from 01.10.2020, it would expire on

17.12.2020. In the instant case, report of the Advisory

Board has been forwarded and received by the

appropriate Government on 11.12.2020 which is well

within the period of 11 weeks prescribed under clause (c)

of Section 9 of PITNDPS Act. Hence, contention of the

petitioner raised in this regard stands rejected.

19. For the reasons aforestated, we are of the

considered view that there is no infirmity in the

impugned orders. Accordingly, point formulated herein

above is answered in the negative.

20. Resultantly, we proceed to pass the following:

ORDER

(1) Writ petition is dismissed.

(2) Detention order No.02/BCP/ CRM/

PIT-NDPS/DTN/2020 dated 30.09.2020

(Annexure-A) passed by second respondent

and order No.HD 34 PND 2020 dated

22.12.2020 (Annexure-E) passed by first

respondent are affirmed.