Smt. Tarannum C Inamdar vs The Deputy Commissioner And
2021 Latest Caselaw 2080 Kant

                               1



            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

          DATED THIS THE 2ND DAY OF JUNE 2021

                        PRESENT
           THE HON'BLE MR.JUSTICE S.G.PANDIT
                              AND
          THE HON'BLE MR.JUSTICE M.G.S.KAMAL

     WRIT PETITION (HABEAS CORPUS) NO.200014/2020

Between:

Smt. Tarannum C Inamdar
W/o Chand Peera
Aged about 34 years
R/o Sakaf Roza Athani Galli
Bijapur-586101
                                             ... Petitioner

(By Sri Sandesh Chouta, Senior Counsel for
 Sri Lakshmikanth G., Sri Pavankumar and Sri Sunil Kumar,
Advocates)

And:

1.     The Deputy Commissioner
       and District Magistrate
       Vijayapura-586103
       By Sri P. Sunil Kumar

2.     State of Karnataka
       By Secretary
       Home Department (Law & Order)
       Vidhana Soudha
       Bengaluru-560 001
                              2



3.   Senior Superintendent
     Central Prison
     Darga Jail Road
     Sankh - Bijapura Rd
     Ajame Daraga, Vijayapura-586103
                                             ... Respondents

(By Smt. Archana P. Tiwari, AGA)

       This Writ Petition (Habeas Corpus) is filed under
Article 226 of the Constitution of India, praying to declare
the detention of Sri Chand Peera @ Ramli S/o Mohammad
Gouse Inamdar by order dated 16.10.2020 in No.MAG/CR-
48/2020-21 Annexure-A passed by respondent No.1, order
dated 22.10.2020 in No.MAG/CR-48/2020-21, Annexure-B
passed by respondent No.1 and approved by the respondent
No.2 by order No.HD 100 SST 2020, Bengaluru dated
23.10.2020 Annexure-C, HD 100 SST 2020, Bengaluru
dated 02.11.2020 Annexure-D approved by respondent No.2
as illegal and void abinitio, etc.

      This petition having been heard and reserved on
27.05.2021, coming on for pronouncement of order this day,
S.G.Pandit, J., made the following:

                          ORDER

The petitioner Smt. Tarannum C. Inamdar W/o

Chand Peera is before this Court under Article 226 of

the Constitution of India praying for a writ of Habeas

Corpus for the following relief:

(a) To declare the detention of Sri Chand Peera @ Ramli S/o Mohammad Gouse Inamdar by order dated 16.10.2020 in No.MAG/CR-48/2020-21

Annexure-A passed by respondent No.1, order dated 22.10.2020 in No.MAG/CR-48/2020-21, Annexure-B passed by respondent No.1 and approved by the respondent No.2 by order No.HD 100 SST 2020, Bengaluru dated 23.10.2020 Annexure-C, HD 100 SST 2020, Bengaluru dated 02.11.2020 Annexure-D approved by respondent No.2 as illegal and void abinitio;

(b) Pass such other order or orders declaring the order of detention, the order of approval and the order of confirmation as illegal and void abinitio;

(c) Pass such other order including release of the detenu forthwith;

(d) Award cost.

During the pendency of the writ petition, by order

bearing No.HD 100 SST 2020 dated 02.12.2020 the

second respondent State Government, in exercise of its

power under Section 13 of the Karnataka Prevention of

Dangerous Activities of Bootleggers, Drug-Offenders,

Gamblers, Goondas, Immoral Traffic Offenders, Slum-

Grabbers and Video or Audio Pirates Act, 1985 (for

short the '1985 Act') extended the period of detention by

12 months. The said order is placed on record along

with memo dated 21.04.2021.

2. The brief facts of the case are that the

husband of the petitioner Chand Peera was taken to

custody vide detention order dated 16.10.2020 passed

under Section 2(g) of the 1985 Act. The detention order

passed by the first respondent was for a period of 12

days and the same was approved by the State

Government by order dated 23.10.2020. Yet by another

order dated 22.10.2020 the first respondent extended

the period of detention by another 12 days. The

extension of detention was approved by the State

Government by order dated 02.11.2020. Thereafter, the

matter was placed before the Advisory Board as

required under Section 10 of the 1985 Act. The

Advisory Board submitted its report by letter dated

26.11.2020. Thereafter, the State Government under

order dated 02.12.2020 in exercise of its power under

Section 13 of the 1985 Act ordered detention for 12

months. The order of detention reveals that detention

order against the detenue is passed on the basis of 12

cases registered against the detenue which relate to the

offences said to have been committed by detenue such

as gambling, robbering, extortion, attempt to murder,

intimidation, forming an unlawful assembly and

assaulting the public with deadly weapons and causing

injuries, robbery and threats and illegal possession of

arms. The said cases have been registered against the

detenue during the period between 1996 to 2020 within

the jurisdiction of Gandhi Chowk and Gol Gumbaz

Police Station limits. The cases registered against the

detenue taken note of by the first respondent while

passing the detention order are as follows:

i. Crime No.23/1996 under Section 392 IPC.

Said case relates to incident that occurred within the jurisdiction of Gandhi Chowk

Police Station. Charge sheet has been filed and after trial, detenue has been acquitted.

ii. Crime No.27/2007 under Section 87 of Karnataka Police Act. Said case relates to incident that occurred within the jurisdiction of Gandhi Chowk Police Station. Charge sheet has been filed and after trial, fine has been imposed on the detenue.

iii. Crime No.87/2012 under Sections 307, 324 read with Section 34 IPC. The said case relates to incident that occurred within the jurisdiction of Gandhi Chowk Police Station. Charge sheet has been filed and after trial, detenue has been acquitted. iv. Crime No.221/2016 under Sections 143, 147, 148 120(B), 302, 323, 324, 504, 506 read with Section 149 IPC and Sections 25 and 27 of the Indian Arms Act, 1959. The said case relates to incident that occurred within the jurisdiction of Gandhi Chowk police station. Charge sheet has been filed and case is pending trial.

v. Crime No.279/2017 under Sections 25(1) and 29(a)(b) of the Indian Arms Act, 1959. The said case relates to incident that occurred within the jurisdiction of Gandhi

Chowk police station. Charge sheet has been filed and case is pending trial.

vi. Crime No.50/2019 under Section 302 read with Section 34 IPC. The said case relates to incident that occurred within the jurisdiction of Gandhi Chowk police station. Charge sheet has been filed and case is pending trial.

vii. Crime No.31/2019 under Sections 143, 147, 120(B), 302 & 149 IPC. The said case relates to incident that occurred within the jurisdiction of Golbumbaz police station. Charge sheet has been filed and case is pending trial.

viii. Crime No.151/2020 under Sections 323, 341, 504, 506 read with Section 34 IPC. The said case relates to incident that occurred within the jurisdiction of Gandhi Chowk police station. Case is under investigation.

ix. Crime No.201/1996 under Section 110(a) Cr.P.C. The said case relates to incident that occurred within the jurisdiction of Gandhi Chowk police station. Case is pending.

x. Crime No.44/2007 under Section 109 Cr.P.C. The said case relates to incident

that occurred within the jurisdiction of Gandhi Chowk police station. Case is pending.

xi. Crime No.108/2012 under Section 107 Cr.P.C. The said case relates to incident that occurred within the jurisdiction of Gandhi Chowk police station. Case is pending.

xii. Crime No.25/2018 under Section 107 Cr.P.C. Said case relates to incident that occurred within the jurisdiction of Gandhi Chowk police station. Case is pending.

The above detention orders are assailed in this

writ petition praying for release of the detenue, the

husband of the petitioner herein on various grounds.

3. Heard the learned Senior Counsel Sri

Sandesh Chouta for Sri Laxmikanth G., learned counsel

for the petitioner and learned AGA Smt. Archana P.

Tiwari for the respondents. Perused the entire records.

4. Learned Senior Counsel Sri Sandesh

Chouta contends that the detention of the detenue is

wholly illegal and submits that the mandatory

provisions of the 1985 Act have not been followed.

Learned Senior Counsel mainly urges the following two

grounds:

a. That the first respondent who passed the order of detention failed to furnish the grounds of detention as required under Section 8 of the 1985 Act.

b. The first and second respondents failed to consider the representations submitted by the detenue as required under the 1985 Act.

5. The learned Senior Counsel invites

attention of this Court to the impugned order of

detention dated 16.10.2020 (Annexure-A) and submits

that the first respondent is not sure as to whether the

detenue is detained as a 'goonda' or as a 'gambler'.

Further, he points out that the impugned order states

that the original basis and reasons are enclosed to the

order, but he submits that except furnishing paper book

containing pages 1 to 183, no other document

containing reasons recorded by the first respondent is

furnished to the detenue. Learned Senior Counsel

refers to Section 8 of the 1985 Act and submits that the

authority empowered to pass detention order shall, as

soon as may be, but not later than 5 days from the date

of detention, communicate the grounds on which the

detention order has been made and shall afford him the

earliest opportunity of making representation against

the order to the State Government. But as required, no

reasons or grounds on which detention order is passed

is neither communicated nor furnished to the detenue.

In fact, he submits that the detenue had submitted

representation dated 19.10.2020 which was forwarded

by the Jail Authority under their letter dated

22.10.2020 and representation dated 31.10.2020 which

was also forwarded to the State Government under

covering letter dated 05.11.2020 of the Superintendent,

Central Prison, Vijayapura. But those representations

are not considered. Further he submits that the first

and second respondents were expected to consider the

representation of the detenue before referring the matter

to Advisory Board. In support of his contention the

learned Senior Counsel relies upon the decision of the

Division Bench of this Court reported ILR 2019 KAR

1543 (Smt. Jayamma vs. Commissioner of Police,

Bengaluru) wherein, this Court has laid down detailed

guidance as to the procedure to be followed by the

Detaining Authority while passing detention order.

Learned Senior Counsel also relies on decisions of the

Hon'ble Apex Court reported in (1982) 3 SCC 440

(Ibrahim Ahmad Batti alias Mohd. Akhtar Hussain

alias Kandar Ahmed Wagher alias Iqbal alias

Gulam vs. State of Gujarat and others) and 1989

Supp (2) SCC 155 (Smt. Dharmista Bhagat vs. State

of Karnataka & another) to contend that

communication of grounds of detention and furnishing

of copy of vital documents is a must.

6. Per contra, learned AGA defends and

justifies the orders of detention passed against the

detenue. Learned AGA referring to the counter affidavit

filed by the first respondent Deputy Commissioner

submits that the grounds of detention was furnished to

the detenue in the form of paper book containing pages

1 to 183, which is received by the detenue. Further, the

learned AGA submits that as the detenue indulged in

illegal activity such as wrongful restraint, stabbing,

threatening the public by showing deadly weapons,

extortion, dacoity, rioting gambling and other heinous

criminal activities and thereby disturbed the public

peace and tranquility, it had become necessary for the

first respondent to take into custody the detenue by

passing detention order under the provisions of the

1985 Act. Further, the learned AGA submits that the

second respondent State Government is empowered

under Section 13 of the 1985 Act to detain the detenue

for a period of 12 months from the date of detention.

Thus, the learned AGA prays for dismissal of the writ

petition.

7. On careful consideration of the rival

contentions and on perusal of the entire material on

record, the point that arises for consideration is as to

whether the impugned orders of detention are liable to

be set aside and whether the detenue is entitled for

release? The answer to the above point is in the

affirmative and the detenue is entitled for release.

8. Article 21 of the Constitution of India

guarantees protection of life and personal liberty. No

person shall be deprived of his life or personal liberty

except according to procedure established by law. Right

to life and liberty is one of the basic human rights and

the State has no authority to violate that right except in

accordance with law or by following the procedures

contemplated under particular enactment. Likewise,

Article 22 of the Constitution of India guarantees

protection against arrest and detention in certain cases.

Article 22 (5) requires communication of grounds when

a person is detained in pursuance of an order of

preventive detention by the authorities making such

order.

9. In the case on hand, the detenue is

detained under the provisions of the 1985 Act. Some of

the relevant provisions which are necessary for deciding

the above point are as follows:

Section 2(f) defines expression "gambler" to mean

a person, who commits or abets the commission of any

offence punishable under Chapter VII of the Karnataka

Police Act, 1963 (Karnataka Act 4 of 1964) including an

offence of gambling relatable to "matka" and punishable

under the said Chapter.

Section 2(g) defines expression "goonda" to mean a

person who either by himself or as a member of or

leader of a gang, habitually commits or attempts to

commit or abets the commission of offences punishable

under Chapter VIII, Chapter XV, Chapter XVI , Chapter

XVII or Chapter XXII of the Indian Penal Code (Central

Act XLV of 1860).

Section 3 of the 1985 Act empowers to make

detention order which reads as follows:

"3. Power to make orders detaining certain persons.- (1) The State Government may, if satisfied with respect to any bootlegger or drug-offender or gambler or goonda or Immoral Traffic Offender or Slum-Grabber or Video or Audio pirate that with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such persons be detained.

(2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in

writing, direct that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (1), exercise the powers conferred by the sub-section :

Provided that the period specified in the order made by the State Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.

(3) When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government.

Section 8 of the 1985 Act requires disclosure of

grounds of order of detention to persons affected by the

order, which reads as follows:

"8. Grounds of order of detention to be disclosed to persons affected by the order.- (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the State Government.

(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.

Section 12 of the 1985 Act provides for action

upon report of Advisory Board.

10. A cumulative reading of the above provisions

would reveal that, Section 3 provides for passing

detention order by the State Government or by the

District Magistrate or Commissioner of Police. When

the order of detention is passed either by District

Magistrate or Commissioner of Police, the approval of

the State Government would be necessary within the

time prescribed therein. Section 8 requires

communication of grounds on which the detention order

is passed to the detenue as soon as may be, but not

later than 5 days from the date of detention, affording

the detenue earliest opportunity of making

representation to the State Government. Section 12

provides for action on the report of the Advisory Board

by the State Government, either to confirm the

detention order or to revoke the order of detention.

11. The Hon'ble Apex Court in Ibrahim Ahmad

Batti's case (supra) and in Smt. Dharmista Bhagwat's

case (supra) has categorically held that, it is imperative

that the detaining authority has to serve the grounds of

detention including relevant documents which led to

passing of the detention order. The Co-ordinate Bench

of this Court in Smt. Jayamma's case (supra) was

examining somewhat similar case of a detenue who was

not furnished with relevant documents with translation

and non-consideration of representation, has laid down

guidelines for the detaining authority for passing

preventive detention order, which reads as follows:

"49. Before parting with this judgment, though we cannot exhaustively laid down meticulous guidelines, we prefer to lay down certain guidelines which may be helpful to the Government and the detaining authority while initiating the proceedings under the Preventive Detention Laws. According to us, the following are the few guidelines framed for passing the preventive detention order under the Act, for the benefit of the state holders:

(1) Detention order in writing, soon after it is passed, should be communicated to the detenu.

The detaining authority should also communicate the grounds of detention comprising of basic facts, and relied upon materials, in their entirety with documents, statements, or other materials,

not later than 5 days from the date of passing of the detention order.

(2) If two or more grounds are relied upon by the authority, each of the grounds shall be separately and distinctly mentioned in the Detention order, as each one of the ground if valid is sufficient to validate the order even if other grounds are vitiated or invalidated for any reason.

(3) Every Detention order shall be supplied with the translated legible version of all the scripts and documents relied upon, in the language he understands to make an effective representation.

(4) Detaining authority shall specifically disclose with reference to each of the grounds for detention, which are all the documents relied upon and which are the documents casually or passingly referred to in the course of narration of facts (including the bail orders) and shall furnish the relied upon documents along with the detention order. If the detaining authority prefers to furnish the referred documents also, those materials also to be furnished in compliance with the first and third guidelines noted supra.

(5) So far as bail applications and orders, and violation of bail conditions are concerned, if the detenu is on bail, if the bail application and bail orders, conditions therein are with reference to any vital ground or vital materials, placing of those materials though may not always be mandatory but such requirement depends upon the facts and circumstances of each case, which the detaining authority and later Courts have to very carefully examine whether non placing of those materials in any way prejudiced the detenu. However failure to furnish any or all the referred documents shall not invalidate the order of Detention.

(6) If the order of detention is challenged, the courts also shall have to independently consider each ground, to ascertain on each ground whether the order is sustainable or not with reference to the guidelines herein refereed.

(7) If any representation is submitted by the detenu before the Detaining Authority, addressing the same to the Detaining Authority, government, or to Advisory Board, irrespective of the fact that, to whom it is addressed, the same shall be as early as possible considered by the appropriate Government, before sending the papers to the

Advisory Board. If the appropriate Government revokes the detention order and directs release of the detenu, there arises no question of sending the case papers to the Advisory Board.

(8) The Government shall within three weeks from the date of the detention order, place the order before the Advisory Board along with all the materials, grounds, representation if any made by the detenu, along with any report by such officer made under sub-sec (3) of section 3 of the Act.

(9) The Advisory Board shall maintain records disclosing the date of receipt of the detention order and other materials, including the representation of the detenu. The Advisory Board shall consider all the materials placed before it, including the representation if any of the detenu, if necessary after calling for such further information as it deems it necessary, and if the person concerned desires to be heard, after hearing him in person and then send its report to the Government within Seven Weeks from the date of detention of the person concerned.

(10) After receipt of the report from the Advisory Board, the Government before passing any order

of confirmation under section 12 of the act shall consider the representation of the detenu, if not already considered by it for reasons that, it was either directly submitted before the advisory board or the sub delegated Authority or received later after the Advisory Board's report. Therefore, it is mandatory that appropriate Government shall consider the representation of the detenu, at least once at any stage before passing the final order of confirmation.

(11) The consideration of the representation if received before confirmation, order at any stretch of imagination, cannot be done after the confirmation of the detention order. It amounts to no consideration in accordance with law and procedure.

(12) If the Advisory Board has sent a report, stating that there is sufficient cause for the detention of the person concerned the Government, may confirm or revoke the said order. If the report says that there is no sufficient cause for detention, the Government, shall revoke the detention order and cause the person to be released forth with. It has no discretion to detain such person any more for any reason on the basis of such detention order.

(13) If the order is revoked either under section 12 or under section 14 as the case may be, or the period of detention under the order is fully undergone by the detenu, in such an event the detaining authority shall forth with release such person from detention. Further the detaining authority shall not pass any extended or further detention order on the same grounds. However, if any subsequent order of detention has to be passed, it shall be by a separate order on fresh grounds after again following the procedure, but not on the grounds on which earlier order was passed."

12. We have carefully perused the order of

detention at Annexure-A dated 16.10.2020. First

portion of the order indicates that the detenue is a

goonda as defined under section 2(g) of 1985 Act,

whereas the last portion of the order the detenue Chand

Peera is described as gambler. The detention is for a

period of 12 days. The order of detention specifically

states that original basis and reasons are enclosed to

the order, but the enclosure containing the reasons for

detention is not forthcoming along with the order of

detention nor the respondents have made available

along with the counter affidavit nor is found in the

records. Para-3 of the counter affidavit filed by the first

respondent Deputy Commissioner reads as follows:

"3. I state that, the detenue was furnished with a detail proposal for detaining him under Karnataka Prevention of Dangerous Activities of Boot-leggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum- Grabbers and Video or Audio Pirates Act, 1985. (Karnataka Act No.12 of 1985) The said document consists of 183 pages. The same has been received and acknowledged by the detune on 16.10.2020."

13. Reading of the above portion of the affidavit

abundantly makes it clear that the detenue was

provided with documents consisting of 183 pages which

is made part and parcel of the affidavit. We have gone

through the paper book containing pages 1 to 183.

The paper book contains the correspondences between

the Deputy Superintendent of Police, Vijayapura Sub-

Division to the Superintendent of Police, Vijayapura,

from Circle Inspector, Vijayapura City Circle to the

Superintendent of Police, Vijayapura and letter from

Superintendent of Police, Vijayapura district to the

Deputy Commissioner and District Magistrate

Vijayapura district. Further it contains the case papers

relating to the criminal cases against the detenue stated

in the above portion of the order. It would not contain

the reasons recorded by the detaining authority based

on the material before it. The detaining authority is

required to record concise reasons for detaining a

person under the provisions of the 1985 Act and such

reasons shall be communicated to the detenue within

the time as required under Section 8 of the 1985 Act.

The mere furnishing of a paper book containing 183

pages would not constitute reasons. The detaining

authority based on the said material is expected to

record reasons as to why it is necessary to detain the

detenue in custody. Unless the reasons are recorded

and communicated to the detenue, there would not be

compliance with Section 8 of the 1985 Act. The

detaining authority, on scrutiny of material on record,

shall record subjective satisfaction, as to the necessity

to detain a person under preventive detention. The

detenue must be informed about the existence of

exceptional circumstances for detention so as to make

effective representation. The right to representation is

provided to the detenue to enable him to demonstrate

that no such exceptional circumstances exist or the

reasons recorded are false. On examination of the

material on record and on consideration of the rival

contentions of the parties, we are of the considered view

that the detenue was not communicated nor furnished

with the reasons for his detention.

14. It is settled law that the law governing

preventive detentions is law of procedural safeguards.

The authorities exercising power under the law of

Preventive Dentition have to ensure strict compliance of

the procedural safeguards provided there under. Any

infraction of the safeguards mandated would result in

invalidation of the order of detention. The 1985 Act is

one such law of Preventive Detention. The said Act lays

down procedural safeguards to be strictly complied

with. Section 3 of the Act which provides power to

make order of detention postulates subjective

"satisfaction" of the authority before directing detention

of certain persons referred to therein. The emphasis

with regard to "satisfaction" is not to be understood

lightly or casually. It encompasses formation of

grounds, examination of grounds duly supported by the

material which would satisfy the authority to pass the

order of detention. The burden of establishing the

factum of satisfaction is on the authority passing the

order of detention. This can be ascertained and

evaluated from the order of detention which would

invariably state the grounds, reasons and conclusion

reflecting the application of mind arrived at by the

authority before passing the order of dentition.

15. "Grounds" means the conclusion drawn by

the authorities from the facts and particulars which led

to the authority to pass the order of detention. Mere

furnishing of the material which supposedly formed the

basis of the purported ground without explicitly

formulating the grounds and without explicitly

providing the conclusion thereon cannot be termed as

grounds contemplated under law. In the instant case,

admittedly even as evident from the statement of

objection filed by the respondent - State, it is clear that

on 16.10.2012 the respondent authority had merely

furnished a paper book of 183 pages consisting of

certain materials in the nature of certain case papers

and correspondence. The order of detention cryptically

refers to the said material. However, nothing is

explicitly stated in the order of detention indicating

formulation of grounds, examination of grounds and

conclusion arrived at leading upto satisfaction of the

authority warranting passing of the order of the

detention. This in our opinion amounts to infraction

and violation of the statutory safeguards provided under

the 1985 Act.

16. It is also clear from the records made

available the detenue had repeatedly requested on

09.10.2020, 31.10.2020, 09.11.2020 addressed to the

Deputy Commissioner and District Magistrate,

Vijayapur, the Under Secretary, Govt. of Karnataka and

to the Advisory Committee, respectively seeking

furnishing of grounds of detention enabling him to

make effective representations. Though the said

requisitions were duly forwarded by the Jail

Superintendent to the aforesaid authorities namely, the

Deputy Commissioner, the Under Secretary to Govt. of

Karnataka and to the Advisory Committee, there is no

material placed before this court to evidence that the

aforesaid request of the detenue for furnishing of the

grounds were complied with. On the contrary, it is seen

that by letter dated 03.11.2020, the office of the Deputy

Commissioner has reiterated that it had furnished all

the supportive documents along with the order of

detention dated 16.10.2020 and that the same had been

duly received by the detenue under his signature on

16.10.2020 instant. Needless to mention that the letter

dated 16.10.2020 merely refers to paper book from Page

1 to 183 which do not contain grounds, conclusion and

the satisfaction resulting in detention of the detenue as

mandatorily required under Sections 3 and or under

Section 8 of the 1985 Act. Even in the statement of

objection filed by the respondent, except reiterating and

enlisting the material contained in the paper book,

nothing else has been produced. This in our view,

amounts to gross violation of the safeguards provided

under Sections 3 and 8 of the 1985 Act. Non-

furnishing of the grounds enabling the detenue to make

effective representation has resulted in gross

miscarriage of justice.

17. We have gone through the records of the

Advisory Board and it is unfortunate to note that the

detenue's representation made to the Advisory Board is

not brought to the notice of the Advisory Board nor it is

placed in the file relating to the Advisory Board. Thus,

it is to be noted that Advisory Board had no occasion to

consider the representation of the detenue.

18. Procedural safeguard provided under Article

22 (5) of the Constitution of India and Section 8 of the

1985 Act having not been followed, the order of

detention becomes illegal and the detenue is entitled for

release.

19. For the reasons stated above, the writ petition

is allowed. The orders bearing No.MAG/CR-48/2020-

21 dated 16.10.2020 (Annexure-A), No.MAG/CR-

48/2020-21 dated 22.10.2020 (Annexure-B), No.HD

100 SST 2020 dated 23.10.2020 (Annexure-C), No.HD

100 SST 2020 dated 02.11.2020 (Annexure-D) and the

order bearing No.HD 100 SST 2020 dated 02.12.2020

filed along with a memo dated 21.04.2021 are quashed

and the detenue shall be released forthwith.

The Registry shall communicate the operative

portion of the order forthwith to the detaining authority

to facilitate the release of the detenue.

Sd/-

JUDGE

Sd/-

JUDGE swk