Mohammed Riyaz vs The State Of Karnataka
2022 Latest Caselaw 13211 Kant

                             1

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 22ND DAY OF NOVEMBER 2022

                          PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                           AND

     THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

                 W.P.H.C. No.74/2022

BETWEEN:

MAHAMMED RIYAZ
S/O P. MAYYADDI
AGED ABOUT 38 YEARS
R/A 3-188/7, NISA APARTMENT
MP ROAD, JOKATTE, 62 THOKUR
MANGALORE TALUK
DAKSHINA KANNADA - 575 011.             ...PETITIONER

(BY SRI LETHIF B, ADV.)

AND:

1.     THE STATE OF KARNATAKA
       BY IT SECRETARY
       DEPARTMENT OF HOME
       VIDHANA SOUDHA
       BANGALORE - 560 001.

2.     THE COMMISSIONER OF
       POLICE, MANGALORE CITY
       DAKSHINA KANNADA DISTRICT
       MANGALORE - 575 001.

3.     THE SUPERINTENDENT OF PRISON
       PARAPPANA AGARAHARA
       CENTRAL JAIL
       BENGALURU - 560 100.

4.     THE SUPERINTENDENT OF
       PRISON DISTRICT PRISON
                                     2

      MANGALORE
      D.K. DISTRICT - 575 001.                        ...RESPONDENTS

(BY SRI V.S. HEGDE, SPP-II A/W
    SRI THEJESH P, HCGP)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASHING OF THE ORDER OF DETENTION DATED 10.02.2022
PASSED BY RESPONDENT NO.2 IN NO.MAG/02/MGC/2022,
WHICH IS PRODUCED AT ANNEXURE-A AND ANNEXURE-A1.

     THIS W.P.H.C. HAVING BEEN HEARD AND RESEVED,
COMING ON FOR PRONOUNCEMENT THIS DAY, VISHWAJITH
SHETTY J., DELIVERED THE FOLLOWING:

                            ORDER

The petitioner who is the brother of the detenue

Mahammed Riyaz S/o P.Mayyadi (hereinafter referred to

as 'the detenue'), has preferred this writ petition seeking

for the following reliefs:

a) A Writ in the nature of Habeas Corpus by quashing of the order of detention dated 10.02.2022 passed by respondent No.2 in No.MAG/02/MGC/2022, which is produced at Annexure-A and Anenxure-A1.

      b)    A Writ in the nature of Habeas Corpus by
            quashing     the       approval   order    dated
            17.02.2022 passed by the respondent
            No.1 in H.D. 53 SST 2022, Bengaluru
            which is produced at Annexure-C in the
            interest of jistice.


      c)    A Writ in the nature of Habeas Corpus by

quashing the confirmation order dated

29.03.2022 passed by the respondent No.1 in H.D. 53 SST 2022,Bengaluru which is produced at Annexure-F in the interest of justice..

d) A Writ in the nature of Habeas Corpus directing the respondents to set at the detenue Mohammed Nawaz @ Pinky Nawaz @ Nawaz at liberty by releasing him from prison forthwith, in the interest of justice.

e) Any other order or direction may be issued as consequential orders, in the interest of justice."

2. Heard the learned Counsel for the petitioner and

also the learned State Public Prosecutor on behalf of the

respondents.

3. Brief facts of the case as revealed from the

records that may be necessary for the purpose of

disposal of this petition are, respondent no.2 has passed

an order of detention dated 10.02.2022 under Section

3(1) & (2) 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 Act')

against the detenue on the ground that the detenue who

is involved in number of criminal cases and who is

released on bail, has continued his anti-social activities

which has caused disturbance of public order, and

therefore, to control his activities and to prevent the

detenue from acting in any manner prejudicial to the

maintenance of public order, it has become necessary to

pass the detention order against him. The said order of

detention was followed by a corrigendum dated

15.02.2022 and the detention of the detenue was shifted

to Bengaluru Central Jail from Mangaluru District Jail.

Thereafter, the State Government, on 17.02.2022

approved the detention order passed by respondent no.2

and the copy of the approval order was served on the

detenue on 18.02.2022 along with the paper book which

contained the documents relied upon by the competent

authority while passing the order of detention.

4. In compliance of Section 10 of the Act,

respondent no.1 had placed the order and the grounds of

detention before the Advisory Board on 23.02.2022. The

detenue had submitted a representation against the

order of detention on 07.03.2022 to the Detaining

Authority, State Government and the Advisory Board

through the Chief Superintendent, Central Jail,

Bengaluru. The Detaining Authority has rejected the said

representation on 15.03.2022. The Advisory Board after

hearing the detenue and after referring to the

considering the representation of the detenue, has

submitted its report to the State Government on

23.03.2022 opining that there was sufficient cause for

the detention of the detenue and on receipt of such a

report, the State Government in exercise of its power

under Section 12 of the Act has passed a confirmation

order on 29.03.2022. The petitioner has, thereafter, filed

the present writ petition on 06.09.2022.

5. During the pendency of the writ petition, the

State Government has considered the detenue's

representation and rejected the same by order dated

20.09.2022. The respondents have filed their statement

of objections on 05.11.2022 denying all the allegations

made in the petition and contended that the impugned

order of detention was passed in accordance with law and

the requirements of the provisions of the Act has been

complied by the respondents. It is also stated that the

petitioner is involved in as many as 15 criminal cases

which include the offences punishable under Sections

307, 302 IPC & etc., and after being released on bail in

the aforesaid cases, he has continued his illegal activities,

and accordingly, prayed to dismiss the petition.

6. Learned Counsel for the petitioner submits that

the representation made by the detenue against the

detention order was not considered by the State

Government till the writ petition was filed and on that

ground alone, the writ petition is required to be allowed.

He submits that though the detenue was enlarged on bail

in Crime No.143/2021, the order of bail passed by the

jurisdictional court was not placed on record, and

therefore, the same was not considered by the State

Government at the time of passing the order of approval.

He submits that the documents furnished to the detenue

along with the approval order were not legible, and

therefore, an effective representation could not be made

by the detenue. He also submits that in compliance of

Section 10 of the Act, the case of the detenue was not

referred to the Advisory Board within 21 days. In support

of his arguments, he has relied upon the judgments in

the case of RUSHIKESH TANAJI BHOITE VS STATE OF

MAHARASHTRA & OTHERS - (2012)2 SCC 72, SUSHANTA

KUMAR BANIK VS STATE OF TRIPUTA & OTHERS - 2022

SCC OnLine 1333, SHANKARA GOUDA VS THE STATE OF

KARNATAKA, REP. BY ITS UNDER SECRETARY (LAW &

ORDER), HOME DEPARTMENT & OTHERS - ILR 2015 KAR

3312, WPHC.No.113/2015 (RIZWAN SHARIF VS THE

STATE OF KARNATAKA & OTHERS) disposed of on

07.11.2015, MAKUKO CHUKWUKA MUOLOKWO VS THE

STATE OF KARNATAKA, REP. BY ITS SECRETARY, HOME

DEPARTMENT, BENGALURU & OTHERS - ILR 2020 KAR

5447.

7. Learned State Public Prosecutor argued in

support of the detention order and submitted that the

representation of the detenue has been considered by all

the three authorities to whom it was forwarded. He

submits that since the matter was seized before the

Advisory Board, there has been a delay in considering the

representation by the State Government and the same

therefore cannot be of any consequence. He submits that

a detention order can be passed even when the detenue

is in custody, and therefore, the fact that the detenue

was released on bail in Crime No.143/2021 is also of no

consequence. He submits that the documents which were

furnished to the detenue were all legible and in his

representation he has not made any grievance in this

regard and it is for the first time such a grievance is

made before this Court, and therefore, there is no merit

in the said contention urged on behalf of the detenue. He

submits that the detention order and its grounds were

placed before the Advisory Board within three weeks, and

therefore, the requirement of Section 10 of the Act has

been complied, and accordingly, he prays to dismiss the

petition.

8. We have carefully considered the arguments

addressed on behalf of the parties and also perused the

material on record.

9. The petitioner has undisputedly forwarded his

representation dated 07.03.2022 against the detention

order through the Chief Superintendent, to the Detaining

Authority, State Government and the Advisory Board. On

receipt of such representation, the Detaining Authority

after considering the same, has rejected it on

15.03.2022. The said representation dated 07.03.2022

was also placed before the Advisory Board and the same

is evident from the report submitted by the Advisory

Board. However, there is no order passed by the

Advisory Board rejecting the representation made by the

petitioner. The State Government for a considerable

period of time has not taken any action on the

representation filed by the detenue and the

representation has been rejected by the State

Government on 20.09.2022 which is after the filing of the

present writ petition.

10. The Constitution Bench of the Hon'ble Supreme

Court in the case of JAYANARAYAN SUKUL VS STATE OF

WEST BENGAL - (1970)1 SCC 219, in a case where the

representation was made by the detenue to the State

Government on 23.06.1969 and the case of the detenue

was placed before the Advisory Board on 01.07.1969

which submitted its report on 13.08.1969 stating that

there was sufficient cause for detention, and thereafter,

the representation was considered and rejected on

19.08.1969, in paragraph 18 has held as under:

"18. It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of the detenu as early as possible. The appropriate Government itself is bound to consider the representation as expeditiously as possible. The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities."

11. In the case of HARADHAN SAHA VS STATE OF

WEST BENGAL - (1975)3 SCC 198, the Constitution

Bench of the Hon'ble Supreme Court considered the

distinction between the consideration of representation

by the Government and by the Advisory Board, and in

paragraphs 24 & 29, it has been observed as under:

"24. The representation of a detenu is to be considered. There is an obligation on the State to consider the representation. The Advisory Board has adequate power to examine the entire material. The Board can also call for more materials. The Board may

call the detenu at his request. The constitution of the Board shows that it is to consist of Judges or persons qualified to be Judges of the High Court. The constitution of the Board observes the fundamental of fair play and principles of natural justice. It is not the requirement of principles of natural justice that there must be an oral hearing. Section 8 of the Act which casts an obligation on the State to consider the representation affords the detenue all the rights which are guaranteed by Article 22(5). The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law. The Board, on the other hand, considers whether in the light of the representation there is sufficient cause for detention.

* * *

29. Principles of natural justice are an element in considering the reasonableness of a restriction where Article 19 is applicable. At the stage of consideration of representation by the State Government, the obligation of the State Government is such as Article 22(5) implies. Section 8 of the Act is in complete conformity with Article 22(5) because this section follows the provisions of the Constitution. If the representation of the detenu is received before the matter is referred to the Advisory Board, the detaining authority considers the representation. If a representation is made after the matter has been referred to the Advisory Board, the detaining authority will consider it before it will send representation to the Advisory Board." (emphasis supplied)"

12. The Hon'ble Supreme Court in the case of

ANKIT ASHOK JALAN VS UNION OF INDIA & OTHERS -

(2020)16 SCC 127, while considering the similar

question, at paragraph 17 has observed as under:

"17. In terms of these principles, the matter of consideration of representation in the context of reference to the Advisory Board, can be put in following four categories:

17.1. If the representation is received well 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 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."

13. The Division Bench of this Court in

WPHC.No.16/2020 (MR. KENNETH JIDEOFOR VS UNION

OF INDIA & OTHERS) disposed of on 12.05.2020, has

observed in paragraphs 19 & 20 as under:

"19. There is no explanation offered regarding the failure of the Sponsoring Authority to forward a copy representation to the Specially Empowered Officer. A copy of representation dated 15th April 2020 was sent by the Prison Authorities to the Joint Secretary (PITNDPS) by speed post. There is no explanation why the representation was not forwarded to the Specially Empowered Officer or to the Central Government by e- mail. It is alleged in the additional statement of objections that as and when Detaining Authority became aware of the representation dated 15th April 2020, the same was obtained by it from NCB, Bengaluru on 29th April 2020. Then the representation was hurriedly disposed of on the same day itself i.e., on 29th April 2020. There is absolutely no explanation forthcoming for not forwarding the representation dated 15th April 2020 to the Specially Empowered Officer who had passed the impugned order. Even the representation dated 17th April 2020 made by the petitioner to the Central Government through the Superintendent of Central Prison was not forwarded to the Central Government immediately but the same was forwarded on 20th April,

2020 and it is specifically stated that the same was decided on 30th April 2020. The delay from 20th of April to 30th April 2020 has not been explained at all.

20. Thus, the only conclusion which can be drawn is that there is an inordinate delay in considering the representations made by the petitioner to the Specially Empowered Officer as well as to the Central Government. In fact, there are no efforts made to explain the reasons for such inordinate delay. Hence, there is a complete violation of rights of the petitioner under Article 22 of the Constitution of India and in particular Clause (5) thereof. On account of the inordinate delay in deciding the representations made by the petitioner, the continuation of impugned order of preventive detention is vitiated and therefore the impugned order of detention will have to be set aside."

14. In the present case, the order of detention was

placed before the Advisory Board on 23.02.2022. The

detenue has submitted the representation on

07.03.2022. The Advisory Board has reported to the

State Government on 23.03.2022. Prior to the Advisory

Board submitting its report, the State Government has

failed to consider the representation of the detenue and

place the same before the Advisory Board. Even after

receipt of the report from the Advisory Board, for nearly

six months the State Government has not passed any

order on the representation submitted by the detenue.

15. Though the learned State Public Prosecutor has

sought to defend the action of the State Government on

the ground that the representation was not considered by

the State Government since the matter was pending

consideration before the Advisory Board, the said

contention is liable to be rejected for the reason that the

State Government is required to consider the

representation independently, as expeditiously as

possible.

16. In the present, even after the Advisory Board

submitted its report on 23.03.2022, for a period of nearly

six months the State Government has not passed any

order on the representation of the detenue, and

therefore, we are of the considered view that the same

would amount to violation of the constitutional rights

guaranteed to the detenue. Though there is no hard and

fast rule as to how much time should be taken by the

competent authority or the Government for considering

the representation, the time taken by the State

Government to consider the petitioner's representation in

the present case is inordinate and cannot be considered

as reasonable.

17. The perusal of the grounds of detention would

go to show that the Detaining Authority was appraised of

the order of bail granted to the detenue in Crime

No.143/2021, and therefore, there is no merit in the

contention urged by the detenue that non-production of

the bail order granted in the said Crime No.143/2021 has

adversely affected his case. The judgments in Rushikesh

Tanaji Bhoite's case, Sushanta Kumar Banik's case,

Shankara Gouda's case and Rizwan Sharif's case supra,

would therefore, not be applicable to the facts of the

present case.

18. Further, a reading of the representation

submitted by the detenue would go to show that he has

not raised any plea with regard to supply of illegible

documents to him, and therefore, the said contention

raised by the petitioner before this Court is liable to be

rejected.

19. Further, the material on record would also go

to show that the detenue's case was placed before the

Advisory Board within the prescribed time as provided

under Section 10 of the Act, and therefore, the

contention of the learned Counsel for the petitioner that

there is violation of Section 10 of the Act in the present

case is also liable to be rejected.

20. However, for the reason that the detenue's

representation has not been considered by the State

Government within a reasonable period and the same has

been rejected only after filing of the present writ petition,

we are of the considered view that there is violation of

the rights conferred upon the detenue under Article 22(5)

of the Constitution of India, and therefore, the

continuation of the order of detention is rendered illegal.

Accordingly, the writ petition succeeds and we pass the

following order:

21. The writ petition is allowed. The order of

detention dated 10.02.2022 at Annexures-A & A1, the

order of approval of detention dated 17.02.2022 at

Annexure-C and the confirmation order dated 29.03.2022

at Annexure-F, are quashed. We direct that the

detenue/Mahammed Riyaz shall be set at liberty

forthwith by the Bengaluru Central Prison, if he is not

required in connection with any other case.

SD/-

JUDGE

SD/-

JUDGE KK