Manjula N vs Commissioner Of Police Bengaluru
2023 Latest Caselaw 1292 Kant

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                                                       WPHC No.103 of 2022




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                          DATED THIS THE 14TH DAY OF FEBRUARY 2023
                                           PRESENT
                            THE HON'BLE MR. JUSTICE ALOK ARADHE
                                             AND
                          THE HON'BLE MR. JUSTICE VIJAYKUMAR A PATIL
                                    W.P.H.C. NO.103 OF 2022
                   BETWEEN:
                   1.   MANJULA .N
                        W/O SANJAY L &
                        D/O NARASIMHA MURTHY
                        AGED 26 YEARS
                        R/AT 222, 4TH CROSS, MARUTHI NAGAR
                        VRUSHABAVATHI NAGAR, KAMAKSHIPALYA
                        BANGALORE - 560079.
Digitally signed
by RUPA V               AADHAR CARD NO. 9297 4455 6628.
Location: High
Court of                                                        ...PETITIONER
Karnataka
                   (BY SRI. ROHAN VEERANNA TIGADI, ADV.,)
                   AND:
                   1.   COMMISSIONER OF POLICE, BENGALURU
                        NO.1 INFANTRY ROAD
                        BENGALURU - 560001.

                   2.   STATE OF KARNATAKA
                        VIDHANA SOUDHA
                        AMBEDKAR VEEDHI
                        SAMPANGI NAGARA, BENGALURU
                        KARNATAKA - 560001
                        (REP. BY SECRTARY HOME
                        DEPARTMENT - LAW AND ORDER).

                   3.   SENIOR SUPERINTENDENT
                        CENTRAL PRISON, BENGALURU
                        BENGALURU - 560001.

                                                              ...RESPONDENTS
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                                          WPHC No.103 of 2022




(BY SRI. THEJESH P. HCGP)

     THIS WPHC IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
HABEAS CORPUS DECLARING THE DETENTION OF SANJAY
SANJU (CENTRAL PRISON UTP NO.9788 OF 2022) IS ILLEGAL
AND SET HIM AT LIBERTY FORTHWITH AFTER QUASHING THE
ORDER BEARING REFERENCE NUMBER 17/CRM(4)/DTN/2022
DATED 23.09.2022 (ANNEXURE A) PASSED BY THE 1ST
RESPONDENT UNDER SECTION 3(1) OF THE GOONDA ACT,
THE ORDER BEARING NUMBER HD 562 SST 2022 DATED
30.09.2022 (ANNEXURE B) PASSED BY THE 2ND RESPONDENT
UNDER SECTION 3(3) OF THE GOONDA ACT AND ORDER
BEARING REFERENCE NUMBER HD 562 SST 2022 DATED
05.11.2022 (ANNEXURE C) PASSED BY THE 2ND RESPONDENT
UNDER SECTION 13 OF THE GOONDA ACT & ETC.

     THIS PETITION COMING ON FOR FURTHER HEARING,
THIS DAY, ALOK ARADHE J., MADE THE FOLLOWING:

                            ORDER

In this writ petition, the petitioner who is the wife

of the detenue has questioned the validity of the order of

detention dated 23.09.2022 as well as the order dated

30.09.2022 passed by the State Government under

Section 3(1) and Section 3(3) of the Karnataka

Prevention of Dangerous Activities of Bootleggers, Drug

offenders, Gamblers, Goondas, Immoral Traffic

Offenders and Slum Grabbers and also Video and Audio

WPHC No.103 of 2022

Pirates Act, 1985 (hereinafter referred to as 'the Act' for

short.

2. Facts giving rise to filing of this petition

briefly stated are that the petitioner is the wife of the

detenue viz., Sanjay alias Sanju. The detenue is aged

about 26 years. The detenue is an accused in 10

criminal cases which are registered against him for a

period from 2015 till 2022. The State Government

passed an order on 23.09.2022 under Section 3(1) of the

Act. Therefore, the aforesaid order was forwarded for

confirmation under Section 3(3) of the Act to the State

Government. The State Government by an order dated

30.09.2022 approved the order of detention under

Section 3(3) of the Act.

3. The detenue submitted a representation on

12.10.2022 to the Advisory Board. Thereafter, the

Advisory Board submitted a report on 02.11.2022. On

the basis of the report submitted by the Advisory Board,

WPHC No.103 of 2022

the order of detention was confirmed by an order dated

05.11.2022 for a period of one year. After the order of

detention was confirmed, the State Government by an

order dated 15.11.2022 has rejected the representation

submitted by the detenue.

4. Learned counsel for the petitioner submitted

that there is an unexplained delay in considering the

representation dated 22.10.2022 submitted by the

detenue. It is also pointed out that the representation

of the detenue was within the knowledge of the

Government, which is evident from an endorsement

dated 14.10.2022. It is also pointed out that the delay in

deciding the representation has not been explained by

the respondents in the statement of objections.

5. On the other hand, learned Additional

Government Advocate has submitted that since, the

detenue had submitted a representation to the Advisory

Board and the matter was pending before the Advisory

WPHC No.103 of 2022

Board, the decision on the representation submitted by

the petitioner could not be taken. It is further

submitted that after the order of detention was

confirmed on 05.11.2022, the representation submitted

by he detenue was decided.

6. We have considered the submissions made by

learned counsel for the parties and have perused the

record. A constitution bench of Supreme Court in

JAYANARAYAN SUKUL VS. STATE OF WEST

BENGAL', (1970) 1 SCC 219 has laid down four

principles, governing the right of consideration of

representation of the detenue.

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

WPHC No.103 of 2022

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 Hon'ble Supreme Court in TARA CHAND

V. STATE OF RAJASTHAN (1980) 2 SCC 321 has held

that any inordinate and unexplained delay on the part

of the Government in considering the representation

renders the detention illegal. A division bench of this

court in 'SMT.LEELAVATHI VS. COMMISSIONER OF

POLICE, BENGALURU AND OTHERS', ILR 2019 KAR

4105 has also held that whenever the representation is

made by the detenue, it has to be considered at the

WPHC No.103 of 2022

earliest point of time. It has further been held that if

there is a delay in deciding the representation the State

Government is under an obligation to explain the same.

8. In the light of aforesaid well settled legal

principles, we may advert to the facts of the case in

hand. Admittedly, the detenue had submitted a

representation to the Advisory Board on 12.10.2022.

Even though the representation was not addressed to

the detaining authority independently, it is not in

dispute that the detaining authority was under an

obligation to decide the aforesaid representation. [See:

'GRACY VS. STATE OF KERALA AND OTHERS', (1991)

2 SCC 1]. The fact that the detenue had submitted a

representation was within the knowledge of the State

Government, which is evident from the endorsement

dated 14.10.2022. After submission of the

representation by the Advisory Board on 02.11.2022,

the State Government by an order passed on

WPHC No.103 of 2022

05.11.2022 confirmed the order of detention of the

detenue dated 22.09.2022 for a period of 1 year.

9. After the expiry of 15 days from the date of

confirmation of date of detention and after more than a

month from the date of submission of the representation

submitted by the detenue was rejected on 15.11.2022.

In the facts of the case, in our considered opinion there

is an inordinate delay in deciding the representation

submitted by the detenue. It is noteworthy that the

aforesaid delay in deciding the representation has not

been explained in the statement of objection by the state

Government. Therefore, the unexplained delay in

considering the representation dated 12.10.2022

renders the detenue vitiated in law.

For the aforementioned reasons, the order dated

23.09.2022, 30.09.2022 and the order dated

05.11.2022 are hereby quashed. We direct that the

detenue Sanjay alias Sanju be set at liberty forthwith by

WPHC No.103 of 2022

the Bengaluru Central Prison, if he is not required in

connection with any other case .

Sd/-

JUDGE

Sd/-

JUDGE

SS