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2023 DIGILAW 53 (KAR)

Mohammed Hameed v. State of Karnataka

2023-01-06

ALOK ARADHE, S.VISHWAJITH SHETTY

body2023
JUDGMENT/ORDER VISHWAJITH SHETTY, J. - This writ petition under Articles 226 and 227 of the Constitution of India has been filed by the detenue who is presently detained in Central Prison, Parapanna Agrahara, Bengaluru, assailing the order of detention dtd. 17/3/2022 passed by respondent no.2 and the order of confirmation dtd. 5/5/2022 passed by respondent no.1 as per Annexures-A & F, respectively, and further to direct respondent no.3 to release the detenue forthwith. 2. Heard the learned Senior Counsel appearing for the detenue and the learned SPP-2 appearing for respondent nos.1 to 3, and also perused the material available on record. 3. Facts leading to filing of this petition briefly narrated are, an order of detention under Sec. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short, 'the Act') was passed on 17/3/2022 by respondent no.2 and the grounds of detention was also served on the detenue on the very same day. Thereafter, respondent no.2 had forwarded the order of detention along with the grounds of detention to respondent no.1 for confirmation on 24/3/2022. The detenue was produced before the Advisory Board on 20/4/2022 and on the said date, the detenue has also submitted a representation to the Advisory Board. The Advisory Board had forwarded a report to respondent no.1 stating that it was satisfied that there were sufficient grounds for passing the order of detention against the detenue and upon receipt of the same, respondent no.1 has passed the order of confirmation on 5/5/2022. The detenue is before this Court challenging the order of detention and the order of confirmation dtd. 17/3/2022 & 5/5/2022, respectively. 4. Learned Senior Counsel appearing for the detenue submits that the detention order passed against the detenue is illegal and arbitrary, and the copy of the documents which were relied upon by the Detaining Authority was not properly served on the detenue and the said documents were also not legible. He submits that the representation submitted by the detenue was not considered by the Advisory Board, and therefore, his detention amounts to violation of Article 22(5) of the Constitution of India. 5. He submits that the representation submitted by the detenue was not considered by the Advisory Board, and therefore, his detention amounts to violation of Article 22(5) of the Constitution of India. 5. Per contra, learned SPP-2 appearing on behalf of the respondents submits that the detention order has been passed after following all the requisite procedures and the detenue is a hard core criminal involved in many criminal cases involving offences under the Narcotic Drugs and Psychotropic Substances Act, 1985. He submits that the detenue has made a representation only to the Advisory Board and no representation has been made by him to the Detaining Authority or to the State Government and the representation submitted by the detenue to the Advisory Board has been considered and rejected in its report forwarded to the State Government, and accordingly, he prays to dismiss the writ petition. 6. The material on record would go to show that the detenue was produced before the Advisory Board on 20/4/2022 and on the said date, he has submitted a representation to the Advisory Board which is available on record at Annexure-E. A detailed representation running to 10 pages was submitted by the detenue. Learned SPP-2 has submitted that the said representation was considered by the Advisory Board and it has been rejected, and he refers to paragraph 13 of the report of the Advisory Board dtd. 22/4/2022 which is forwarded to the State Government. Paragraph 13 of the report of the Advisory Board dtd. 22/4/2022 reads as under: "13. In the representation that the detenue has given, he may have claimed to be innocent and put forth the hardship that his family suffers if his detention is continued, but the interest and health of the society assumes significance more than individual's hardship. The detenue has also pointed out some lacunae in investigation. We need not consider those aspects, for the concerned courts where trial is being held have to rule upon those issues." 7. From the reading of the same, it is evident that no orders have been passed by the Advisory Board on the representation made by the detenue. On the other hand, it has been observed that it is not required for the Advisory Board to consider the same and it is for the concerned courts where the trial is being held, to consider the issues raised in the representation of the detenue. 8. On the other hand, it has been observed that it is not required for the Advisory Board to consider the same and it is for the concerned courts where the trial is being held, to consider the issues raised in the representation of the detenue. 8. 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 paragraph 18 has observed 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." 9. 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. Sec. 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). It is not the requirement of principles of natural justice that there must be an oral hearing. Sec. 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. Sec. 8 of the Act is in complete conformity with Article 22(5) because this sec. 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)" 10. It is trite law that the representation submitted by the detenue is required to be considered independently by the Detaining Authority, Advisory Board as well as by the State/Central Government. In the present case, the representation submitted by the detenue to the Advisory Board has not been considered and no orders have been passed on the same by the Advisory Board, and therefore, the order of detention passed against the detenue and the subsequent order of confirmation of the same cannot be sustained as the same would amount to violation of the rights guaranteed to the petitioner under Article 22(5) of the Constitution of India. Accordingly, the following order: 11. The writ petition is allowed. The order of detention dtd. 17/3/2022 at Annexure-A and the order of confirmation dtd. 5/5/2022 at Annexure-F, are quashed. We direct that the detenue/Mohammed Hameed @ Hameed @ Ganja Hameed be set at liberty forthwith by the Bengaluru Central Prison, if he is not required in connection with any other case.