Karnataka High Court

Nonso Joachin vs State Of Karnataka on 29 March, 2022

Bench: Alok Aradhe, S Vishwajith Shetty

                              1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 29TH DAY OF MARCH 2022

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                           AND

     THE HON'BLE MR.JUSTICE S. VISHWAJITH SHETTY

                   W.P.H.C. NO.70 OF 2021
BETWEEN:

NONSO JOACHIN
S/O UDEDIKE
AGED ABOUT 37 YEARS
NATIVE OF YABA
LAGOS CITY, NIGERIA
PRESENT ADDRESS NO.35
1ST FLOOR , 2ND CROSS
KNSS LAYOUT, BRINDHAVAN - 3
JAYANTHI, HORAMAVU
BENGALURU - 560113.
                                            ... PETITIONER
(BY MR. NISHIT KUMAR SHETTY, ADV.,)

AND:

1.    STATE OF KARNATAKA
      REPRESENTED BY ITS SECRETARY
      HOME DEPARTMENT
      VIDHANA SOUDHA
      BENGALURU - 560001.

2.    THE COMMISSIONER OF POLICE
      BANGALORE CITY
      INFANTRY ROAD
      BENGALURU - 560001.
                                2



3.   THE CHIEF SUPERINTENDENT
     CENTRAL PRISON
     PARAPPANA AGRAHARA
     BANGALORE.

                                              ... RESPONDENTS

(BY MR. THEJESH P, HCGP)
                              ---

      THIS WPHC IS FILED UNDER ARTICLE 226 AND 227 OF THE

CONSTITUTION OF INDIA, PRAYING TO A WRIT IN THE NATURE

OF HABEAS CORPUS OR WRIT OR ORDER OR DIRECTION OF

APPROPRIATE NATURE AND QUASH THE ORDER OF DETENTION

ANNEXURE-A     DATED     03.05.2021    IN   NO.1/BCP/CRM/PIT-

NDPS/DTN/2021 PASSED BY THE RESPONDENT NO.2 AS ILLEGAL.

A WRIT IN THE NATURE OF HABEAS CORPUS BY QUASHING THE

FURTHER    ORDER     DATED    07.07.2021    PASSED    BY    THE

RESPONDENT NO.1 IN NO.HD 13 PND 2021 ANNEXURE-K. A WRIT

OF DIRECTION DIRECTING THE RESPONDENT NO.3 TO RELEASE

THE PETITIONER FORTHWITH.



      THIS WPHC COMING ON FOR FINAL HEARING, THIS DAY,

ALOK ARADHE J., MADE THE FOLLOWING:


                           ORDER

The petitioner who is a Nigerian National in this petition

has questioned the order of detention dated 03.05.2021

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).

2. Facts giving rise to filing of this petition briefly

stated are that petitioner is a Nigerian National who came to

India on business visa and is residing in India. The petitioner

is stated to be involved in various criminal activities viz.,

illegal possession, transport and selling of narcotic

substances, forgery, cheating and criminal conspiracy. The

petitioner was engaged in illegal trafficking of narcotic drugs

and psychotropic substances to college students and public in

general. Police Inspector, Anti Narcotic CCC Bangalore sent a

report of the Commissioner for detention through proper

channel. The Commissioner of Police after examining the

report of the Police Inspector passed on order of detention on

03.05.2021. On the basis of the aforesaid order, the

petitioner was detained. The respondent No.2, Commissioner

of Police by communication dated 05.05.2021 requested the

State Government for conformation of order of detention.

3. The State Government thereafter, by a

communication dated 06.05.2021 communicated the order of

detention as well as grounds of detention to the Central

Government Under Section 3(2) of the Act. The State

Government referred the matter before the Advisory Board

on 01.06.2021. The petitioner submitted a representation on

01.06.2021 to the Commissioner of Police and to the State

Government. The representation submitted by the petitioner

to the Commissioner of Police was rejected by an order dated

03.06.2021. However, the representation submitted by the

petitioner to the State Government was not decided and the

same was forwarded to the Advisory Board. The Advisory

Board considered the representation submitted by the

petitioner and submitted a report on 14.06.2021 to the State

Government. In the report, it was opined that there was

sufficient cause to detain the petitioner under the Act. The

State Government by an order dated 07.07.2021 confirmed

the order of detention. In the aforesaid factual background,

this petition has been filed.

4. Learned counsel for the petitioner has raised a

singular contention that even though the petitioner had

submitted a representation on 01.06.2021, yet there was a

delay in decision on the representation and the same was

decided on 18.12.2021. Therefore, the order of detention is

vitiated and is liable to be quashed. In support of aforesaid

submissions, reliance has been placed on decisions in

'JAYANARAYAN SUKUL VS. STATE OF WEST BENGAL',

(1970) 1 SCC 219, 'ANKIT ASHOK JELAN VS. UNION OF

INDIA AND OTHERS', AIR 2020 SC 1936, 'SARABJEET

SINGH MOKHA VS. DISTRICT MAGISTRATE, JABALPUR

AND OTHERS', 2021 SCC ONLINE SC 1019 AND

'S.AMUTHA VS. THE GOVERNMENT OF TAMIL NADU &

OTHERS', SLP (CRL) NO.9512/2021 DECIDED ON

05.01.2022.

5. On the other hand, learned High Court

Government Pleader for respondent has supported the order

of detention and has submitted that the same does not suffer

from any infirmity. It is also pointed out that the period of

detention will come to an end about 34 days on 02.05.2022.

6. 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 to the 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.

7. 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.

8. In the instant case, the petitioner made a

representation to the State Government on 01.06.2021. The

State Government on 14.06.2021 forwarded the matter

along with the representation to the detenue to the Advisory

Board. The Advisory Board considered the representation and

submitted a report on 07.07.2021 to the State Government.

The representation submitted by the petitioner to

Commissioner of Police was decided on 03.06.2021.

Therefore, in the facts of the case, the delay in deciding the

representation submitted by the petitioner to the State

Government does not suffer from any infirmity warranting

interference with the order of detention.