Karnataka High Court

Mrs Khatejutal Najma vs State Of Karnataka on 23 December, 2021

Bench: Alok Aradhe, Anant Ramanath Hegde

                             1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 23RD DAY OF DECEMBER 2021

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                           AND

 THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

                  W.P.H.C. NO.110 OF 2021
BETWEEN:

MRS. KHATEJUTAL NAJMA
W/O MOHAMMED KASHIF
AGED ABOUT 31 YEARS
R/AT NO.149, 1ST CROSS
SYED BLOCK, MUSLIM COLONY
ANNASANDRAPALYA, BANGALORE.
                                            ... PETITIONER
(BY MR. HASHMATH PASHA SR. ADV.,
    A/W MR. KARIAPPA N.A. ADV., FOR
    MR. NASIR ALI. ADV.,)

AND:

     1. STATE OF KARNATAKA
        BY UNDER SECRETARY TO
        GOVERNMENT (POLICE SERVICES-B)
        HOME DEPARTMENT
        KARNATAKA GOVT SECRETARIAT
        VIDHANA SOUDHA
        BANGALORE - 560 001.

2.     THE COMMISSIONER OF POLICE
       BANGALORE CITY
       OFFICE AT : INFANTRY ROAD
       BANGALORE.
                                2



3.    THE POLICE INSPECTOR
      AND STATION HOUSE OFFICER
      HAL POLICE STATION
      BANGALORE.

4.    THE CHIEF SUPERINTENDENT
      CENTRAL PRISON
      PARAPPANA AGRAHARA
      BANGALORE - 560 100.
                                               ... RESPONDENTS
(BY MR. Y.H. VIJAYA KUMAR AAG A/W
    MR. THEJESH P. HCGP FOR R1 TO R3)
                            ---

      THIS WPHC IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO PASS AN AD INTERI
MORDER OF RELEASE OF THE DETNUE MR.MOHAMED KASHIF
WHO IS DETAINED BY VIRTUE OF DETENTION ORDER DATED
09.09.2021 AS PER ANNEXURE-A PASSED BY RESPONDENT NO.2
AND WHICH IS CONFIRMED BY ORDER DATED 07.10.2021 BY
RESPONDENT NO.1 AS PER ANNEXURE-C FORTHWITH FROM
CENTRAL PRISON, BENGALURU PENDING DISPOSAL OF WRIT
PETITION.

     THIS WPHC COMING ON FOR ORDERS,                THIS   DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:

                           ORDER

In this writ petition, the petitioner who is the wife of

the detenue viz., Mohamed Kashif has questioned the order

of detention dated 09.09.2021 passed under Section 3(1) of

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic

Substances Act, 1988 (hereinafter referred to as 'the Act' for

short) as well as the order dated 07.10.2021 passed by State

Government.

2. Facts leading to filing of this petition briefly

stated are that on 31.08.2021, the Head Constable of HAL

police station reported to the Inspector of Police that detenue

was apprehended in J.P.Nagar, Bengaluru at 5.30 p.m. in

connection with Crime No.146/2020 for the offence

punishable under Section 20-B of the Act and was brought to

police station at about 7.00 p.m. The statement of the

detenue was recorded by police inspector, HAL Police Station

wherein he stated about his role in other criminal cases viz.,

Cr.No.455/2007, 365/2017, 667/2017, 02/2018, 116/2019

and 146/2020. Thereafter, the detenue was produced on

01.09.2021 before the Additional Chief Metropolitan

Magistrate Court and was remanded to judicial custody. The

Police Inspector, HAL Police Station submitted a request to

pass an order of detention under Section 3 of the Act against

the detenue.

3. The Assistant Commissioner of Police after

consideration of material against the detenue by a

communication dated 07.09.2021, recommended the

detention to the Deputy Commissioner, who in turn

forwarded a report to the Commissioner Of Police. The

Commissioner of Police passed an order of detention on

09.09.2021. The order of detention, the grounds for

detention along with relevant documents in Kannada and

English Languages were served on the detenue on

10.09.2021 through Superintendent, Central Prison,

Bengaluru. The Central Government after thoroughly

examining the order of detention and relevant documents,

sent a report to the Central Government on 14.09.2021,

along with order of detention, grounds of detention and all

the material as mandated under Section 3(2) of the Act. The

State Government by a communication dated 24.09.2021,

referred the matter to the advisory board.

4. After the matter was referred to the advisory

board, a representation dated 20.09.2021, was received by

the State Government on 27.09.2021, which was addressed

to the Advisory Board. The Central Government forwarded

the representation to the advisory board on 28.09.2021. The

Advisory Board submitted a report on 04.10.2021, which was

received by the State Government on 05.10.2021. In the

report, it was opined that there was sufficient cause to detain

the detenue under the Act. The State Government passed

an order on 07.10.2021 confirming the order of detention.

The order of detention was served on the detenue on

08.10.2021.

5. Thereafter, the wife of the detenue on

01.11.2021 submitted a representation to the State

Government whereas, the detenue on 08.11.2021 submitted

a representation to the State Government. The aforesaid

representations dated 01.11.2021 and 08.11.2021 were

decided by the State Government by an order dated

19.11.2021. In the aforesaid factual background, this

petition has been filed.

6. Learned Senior counsel for the petitioner

submitted that order of detention dated 09.09.2021 is

without authority of law and is in violation of the fundamental

right guaranteed under Article 22(5) of the Constitution of

India. It is further submitted that the representations

submitted by the detenue have not been considered by the

respondent. It is further submitted that the representation

submitted by the detenue was received by the State

Government before the matter was referred to the Advisory

Board, therefore, the detaining authority ought to have

considered such a representation and in any case, even if it

is received after the referral of the matter to the Advisory

Authority then also the detaining authority should have first

considered the representation. It is also urged that the order

of detention is in violation of Section 12(1)(a) of the Act

inasmuch as the detenue was not apprised of his right to

submit a representation. In support of aforesaid submissions,

reliance has been placed on decisions in 'ANKIT ASHOK

JALAN VS. UNION OF INDIA', (2020) 16 SCC 127,

'SARABJIT SINGH MOKHA VS. DISTRICT MAGISTRATE

JABALPUR', 2020 SCC ONLINE SC 1019, 'KAMALESH

KUMAR ISHWARDAS PATEL VS. UNION OF INDIA',

(1995) 4 SCC 51, 'JAYAMMA VS. COMMISSIONER OF

POLICE BANGALORE', ILR 2019 KAR 1543,

'HARADHAN SAHA VS. STATE OF W.B.', (1975) 3 SCC

198, 'RAZIYA UMAR BAKSHI VS. UNION OF INDIA',

1980 SUPP SCC 195, 'MOOSA HUSEIN SANGHAR VS.

STATE OF GUJARAT', (1993) 1 SCC 511.

7. On the other hand, learned Additional Advocate

General has supported the order of detention and has

submitted that the same does not suffer from any infirmity.

It is pointed out that in accordance with law laid down by

constitution bench of Supreme Court in 'K.M.ABDULLA

KUNHI AND B.L.ABDUL KHADER VS. UNION OF INDIA

AND OTHERS STATE OF KARNATKA AND OTHERS',

(1991) 1 SCC 476 on receipt of the representation, the

same was considered and disposed of expeditiously. It is also

submitted that failure on the part of the respondents to

inform the detenue with regard to his right to make a

representation under Section 12(1)(a) of the Act does not

vitiate the order of detention in any manner. In support of

aforesaid submissions, reliance has been placed p decisions

in 'JASBIR SINGH VS. LT. GOVERNOR, DELHI (1991) 4

SCC 228, 'R.KESHAVA VS. PRAKASH', (2001) 2 SCC

145, 'SUBRAMANIAN VS. STATE OF TAMILNADU',

(2012) 4 SCC 699, 'GOLAM BISWAS VS. UNIONO F

INDIA', (2015) 16 SCC 177, 'UNION OF INDIA VS.

DIMPLE HAPPY DHAKAD', (2019) 20 SCC 630 and

'UNION OF INDIA VS. ANKIT ASHOK JAUN, CRIMINAL

APPEAL NO.1746 OF 2019.

8. We have considered the submissions made by

learned counsel for the parties and have perused the record.

A constitution bench of the Supreme Court 'JAYANARAYAN

SUKUL VS. STATE OF WEST BENGAL', (1970) 1 SCC 219

laid down four principles, governing the right of consideration

of representation of the detenue in para 20 of the judgment,

which reads as under:

First, the appropriate authority is bound to give an opportunity to the detenue to make a representation and to consider the representation of the detenue as early as possible. Secondly, the consideration of the representation of the detenue by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenue by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that

the government has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State. Fourthly, the appropriate government is to exercise its opinion and judgment on the representation before sending the case along with the detenue's representation tot eh Advisory Board. If the appropriate Government will release the detenue the government will not send the matter to the Advisory Board. If, however, the government will not release the detenue the government will send the case along with the detenue's representation to the Advisory Board. If thereafter, the Advisory Board will express an opinion in favour of the release of the detenue the government will release the detenue. If the Advisory Board will express any opinion against the release of the detenue the government may still exercise the power to release the detenue.

9. The aforesaid aspect of the matter was also dealt

with another constitution bench of the Supreme Court in

'HARADHAN SAHA AND ANOTHER VS.STATE OF WEST

BENGAL AND OTHERS', (1975) 3 SCC 198. The aforesaid

constitution bench decisions were considered by the Supreme

Court recently in ANKIT ASHOK JALAN supra and in para

17, the principles with regard to matter of consideration of

representation in the context of reference to Advisory Board

were culled out.

17.1. If the representation is received just before the reference is made to the Advisory Board and can be considered by the appropriate Government, the representation must be considered with expedition. Thereafter, the representation along with the decision taken on the representation shall be forwarded to and must form part of the documents to be placed before the Advisory Board.

17.2. If the representation is received just before the reference is made to the Advisory Board and there is not sufficient time to decide the representation, in terms of law laid down in JAYANARAYAN SUKUL AND HARADHAN SAHA, the representation must be decided first and thereafter the representation and the decision must be sent to the Advisory Board. This is premised on the principle that the consideration by the appropriate Government is completely independent and also that there ought not to be any delay in consideration of the representation.

17.3. If the representation is received after the receive after the reference is made but

before the matter is decided by the Advisory Board, according to the principles laid down in HARADHAN SAHA, the representation must be decided. The decision as well as the representation must thereafter be immediately sent to the Advisory Board.

17.4. If the representation is received after the decision of the Advisory Board, the decisions are clear that in such cases there is no requirement to send the representation to the Advisory Board. The representation in such cases must be considered with expedition.

10. In the instant case, the State Government

referred the matter to the Advisory Board on 24.09.2021.

After the matter was referred to the Advisory Board, a

representation dated 20.09.2021 was received by the State

Government on 27.09.2021. The aforesaid representation is

addressed to the Advisory Board. The State Government

therefore, forwarded the representation on 28.09.2021. From

the record of the proceeding of the Advisory Board produced

before us, it is evident that Advisory Board considered the

representation in its meeting held on 29.09.2021 and

submitted a report dated 04.10.2021 to the State

Government. The other representations submitted by the

petitioner as well as the detenue dated 01.11.2021 and

08.11.2021, received after the report of Advisory Board

which were addressed to the State Government were

disposed of on 19.11.2021. Therefore, the contention that

the representation submitted by the detenue has not been

decided is sans substance and does not deserve acceptance.

11. The State Government on 24.09.2021 had

forwarded the order of detention along with relevant material

as well as grounds of detention to the Central Government as

required under Section 3(2) of the Act. Section 12(1)(a) of

the Act reads as under:

12. Revocation of detention orders - (1) Without prejudice to the provisions of Sec. 21 of the General Clauses Act, 1897 (10 of 1897), a detention order may, at any time, be revoked or modified.