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2022 DIGILAW 1503 (KAR)

Dheeraj v. State of Karnataka

2022-11-24

ALOK ARADHE, S.VISHWAJITH SHETTY

body2022
JUDGMENT/ORDER VISHWAJITH SHETTY, J. - The instant writ petition under Article 226 of the Constitution of India has been filed by the petitioner who is the brother of the detenue Rohidas @ Akasha Bhavan Sharan @ Charan (hereinafter referred to as 'the detenue'), with a prayer to quash the detention order dtd. 10/2/2022 passed by respondent no.3, the order dtd. 17/2/2022 passed by respondent no.2 approving the detention order and the order dtd. 29/3/2022 passed by respondent no.2 confirming the detention order passed under the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders, SlumGrabbers and Video or Audio Pirates Act, 1985 (for short, 'the Act'). 2. Heard the learned Counsel for the petitioner and also the learned State Public Prosecutor-II on behalf of the respondents. 3. Facts leading to filing of this writ petition narrated in brief are, respondent no.3 had passed an order of detention dtd. 10/2/2022 under the provisions of the Act against the detenue on the ground that he was allegedly involved in as many as 19 criminal cases and he was an habitual offender who continued to commit offences against person and property and with a view to prevent the detenue from acting in any manner prejudicial to the maintenance of public order, it was necessary to pass the order of detention against him. 4. The said order of detention and the grounds of detention was served on the detenue. Respondent no.2, on 17/2/2022, had approved the order of detention passed by respondent no.3, and thereafter, the matter was placed before the Advisory Board on 21/3/2022. The Advisory Board has forwarded a report to the State Government stating that sufficient cause and grounds were made out for passing the order of detention against the detenue which was approved by the State Government. After receipt of such a report, the State Government by its order dtd. 29/3/2022 had confirmed the order of detention fixing the period of detention as one year from the date of the order. The writ petition was thereafter filed by the brother of the detenue challenging the detention order, approval order and the confirmation order. 5. The respondents having entered appearance in the matter, have filed statement of objections denying the petition averments and have prayed to dismiss the writ petition. 6. The writ petition was thereafter filed by the brother of the detenue challenging the detention order, approval order and the confirmation order. 5. The respondents having entered appearance in the matter, have filed statement of objections denying the petition averments and have prayed to dismiss the writ petition. 6. Learned Counsel for the petitioner submits that the detenue was in judicial custody as on the date of passing the detention order, and therefore, it was wholly unnecessary to pass the detention order against the detenue. He submits that the representation given by the detenue has not been considered by the Advisory Board and the State Government. He also submits that the documents furnished to him which was relied for the purpose of passing the detention order are not legible, and therefore, an effective representation could not be made by the detenue. He submits that the representations were forwarded from the jail, and therefore, the detenue has not retained the copy of the representation. 7. Per contra, learned State Public Prosecutor-II submits that the requirement of the provisions of the Act have been complied with by the authorities while passing the detention order. He submits that the detenue has given the representation only to the Detaining Authority which has been considered and rejected and no representation has been given by the detenue to the State Government or to the Advisory Board. He also submits that the detenue has not raised any grievance prior to the filing of the writ petition to the effect that the documents supplied to him were not legible. He also submits that the order of detention can be passed even when the detenue is in jail and in support of this argument, he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of UNION OF INDIA & ANOTHER VS DIMPLE HAPPY DHAKAD - (2019)20 SCC 609 . 8. The contention of the petitioner that since the detenue was already in custody no detention order could be passed against him is liable to be rejected and the said issue is no more res integra in view of the judgment of the Hon'ble Supreme Court in Dimple Happy Dhakad's case supra, wherein at paragraph 33, it has been observed as under: "33. It is well settled that the order of detention can be validly passed against a person in custody and for that purpose, it is necessary that the grounds of detention must show that the detaining authority was aware of the fact that the detenu was already in custody. The detaining authority must be further satisfied that the detenu is likely to be released from custody and the nature of activities of the detenu indicate that if he is released, he is likely to indulge in such prejudicial activities and therefore, it is necessary to detain him in order to prevent him from engaging in such activities." 9. The further grievance of the petitioner that the documents supplied to him were not legible is also liable to be rejected for the reason that such a grievance has been made for the first time in this writ petition which is filed on 12/9/2022 which is nearly after seven months from the date of passing of the detention order. 10. It is the specific case of the petitioner that the detenue had given representation to the Detaining Authority, State Government as well as the Advisory Board, but the State Government and the Advisory Board have not considered the said representation and such an averment has been made by the petitioner in paragraph 24 of the writ petition. In the objections filed on behalf of the respondents, it has been categorically stated that the detenue has given representation only to the Detaining Authority and the State Government as well as the Advisory Board have not received any representation from the detenue. From the original file which is made available to this Court by the learned State Public Prosecutor-II, it is seen that in the list of dates and synopsis which is available in the file, at Sl. Nos.8 & 9, it has been mentioned as under: 8) Detenue submitted his representation to Advisory Board Date 22/3/2022 9) Detenue Representation received in Govt. 18/5/2022 11. This Court on 23/11/2022 having noticed the same had put a query to the State Public Prosecutor-II, who had sought time to enable him to file an affidavit explaining the aforesaid dates which have been mentioned in the list of dates and synopsis found in the original file. 12. 18/5/2022 11. This Court on 23/11/2022 having noticed the same had put a query to the State Public Prosecutor-II, who had sought time to enable him to file an affidavit explaining the aforesaid dates which have been mentioned in the list of dates and synopsis found in the original file. 12. Today, he has filed the affidavit of one Rajashekar.M.G. S/o Giriyappa, serving as Under Secretary to the Government, Home Department (Law and Order), stating that the representation which was received from the detenue on 7/3/2022 for transferring him to Bengaluru or Bellari Jail was forwarded to the Advisory Board on 22/3/2022 and the same has been mentioned at Sl. No.8 in the list of dates and synopsis filed in the original file, and the receipt of the representation dtd. 18/5/2022 by the State Government is mentioned at Sl. No.9 in the list of dates and synopsis and it is also stated in the affidavit that the said documents are available at Page Nos.87 & 141 of the original records. 13. We have perused the said two documents which are available in the original records. The document which is available at Page No.87 is an inter-departmental communication addressed by the Under Secretary to the Government, to the Additional Chief Secretary to Government, whereas in the list of dates and synopsis, the said document is referred to as the representation submitted by the detenue to the Advisory Board. 14. In so far as the representation of the detenue received by the Government on 18/5/2022 as stated at Sl. No.9 in the list of dates and synopsis is concerned, a perusal of the said document which is available at Page No.141 of the original file would go to show that the said document is dtd. 6/5/2022, whereas the alleged representation stated at Sl. No.9 is dtd. 18/5/2022. 15. Therefore, we are not satisfied with regard to the explanation offered by the respondents in the affidavit filed by them today with regard to the mentioning of submission of representation by the detenue to the Advisory Board and the State Government as found at Sl. Nos.8 & 9 in the list of dates and synopsis available in the original file produced by the respondents. 16. Nos.8 & 9 in the list of dates and synopsis available in the original file produced by the respondents. 16. The Constitution Bench of the Hon'ble Supreme Court in the case of JAYANARAYAN SUKUL VS STATE OF WEST BENGAL - (1970)1 SCC 219 , at 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." 17. In the present case, the petitioner has made a specific averment in the writ petition that the detenue has given representation to the State Government as well as to the Advisory Board, and the respondents have denied that the detenue has filed such a representation to the State Government and the Advisory Board. However, a reading of the list of dates and synopsis which is available in the original file would give rise to a serious doubt about the correctness of such a statement made by the respondents. 18. In addition to the same, the copy of the representation which admittedly has been received by the Detaining Authority is also not available in the original file submitted by the respondent and inspite of a specific query being made with regard to the same, no attempt has been made by the respondent to produce the said copy of the representation made by the detenue to the Detaining Authority. 19. Under the circumstances, we are constrained to draw an adverse inference against the respondents with regard to the filing of the representation by the detenue to the State Government as well as the Advisory Board. Non-consideration of such representation would violate 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. Non-consideration of such representation would violate 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 dtd. 10/2/2022, the order of approval of detention dtd. 17/2/2022 and the confirmation order dtd. 29/3/2022 at Annexures-A, B & C, respectively, are quashed. We direct that the detenue/Rohidas @ Akasha Bhavan Sharan @ Charan shall be set at liberty forthwith by the Central Prison, Belagavi, if he is not required in connection with any other case.