IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 17TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR. JUSTICE M.NAGAPRASANNA WRIT PETITION (HC) NO.125 OF 2019 BETWEEN:
MURSHIDUL AMEEN SON OF MOHAMMED KOYA AGED ABOUT 30 YEARS RESIDING AT “THANDILAM PARAMBATH HOUSE” KUNNAMANGALAM VILLAGE PILASSERY POST CALICUT DISTRICT KERALA-673 572.
...PETITIONER (BY SRI: KIRAN S. JAVALI, ADVOCATE ALONG WITH SRI: CHANDRASHEKARA K., ADVOCATE) AND:
1. GOVERNMENT OF KARNATAKA BY PRINCIPAL SECRETARY HOME DEPARTMENT VIDHANA SOUDHA BENGALURU-560 001.
2. ADDITIONAL CHIEF SECRETARY TO GOVERNMENT OF KARNATAKA HOME DEPARTMENT VIDHANA SOUDHA BENGALURU-560 001 BY SHRI RAJNEESH GOEL.
3. SENIOR SUPERINTENDENT CENTRAL PRISON BENGALURU-560 100.
… RESPONDENTS (BY SRI: DHYAN CHINNAPPA, AAG ALONG WITH SRI: S.V.GIRIKUMAR, AGA) THIS WPHC IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF HABEAS CORPUS OR ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION DECLARING THE DETENTION OF SHRI MUHHAMED JALEEL C.K., SON OF SHRI ALI C.K., BY ORDER HD 5 SCF 2019 DATED 21.02.2019 (ANNEXURE-A) AS ILLEGL AND VOID ABINITIO.
***** THIS WPHC COMING ON FOR ORDERS THIS DAY, RAVI MALIMATH J., PASSED THE FOLLOWING:
ORDER This petition is filed seeking for a writ of Habeas Corpus or any other appropriate writ, order or direction declaring the detention of Sri.Muhhamed Jaleel C.K., son of Sri.Ali C.K., as illegal and void-ab-initio.
2. The petitioner is the brother-in-law of the detenue. The order of detention was passed by the Additional Chief Secretary to Government being a Specially Empowered Officer under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (for short ‘COFEPOSA Act’), placing the detenue under preventive detention in terms of the order dated 21.02.2019 vide Annexure-A. The grounds of detention were also furnished to him. Inter-alia, at para 60, the detenue was informed of his right to make representations against the order of detention to the Detaining Authority, the Government of Karnataka, the Central Government and the COFEPOSA Advisory Board. In pursuance whereof, representations were made, one to the Detaining Authority and the other to the Government of Karnataka.
3. Presently, a memo is filed by the learned Counsel for the petitioner enclosing the copy of endorsement issued by the Government of Karnataka dated 27.11.2019 rejecting the representation of the detenue and yet another endorsement dated 27.11.2019, wherein, the Detaining Authority has rejected his representation for revocation of the detention order.
4. The primary contention of the petitioner is that, the detenue is entitled to make representations to the various authorities as enunciated in para 60 of the ground of detention. That each one of the authorities are required to apply its mind independently. That the application of mind is called for, by each one of the authorities to whom the representation is made. In the instant case, the representation made to the Government has been rejected by the Additional Chief Secretary, Department of Home, namely, Sri.Rajneesh Goel, who is also the Detaining Authority who has rejected the representation made to the Detaining Authority. Therefore, the said officer has acted in the capacity of a Detaining Authority as well as the Specially Empowered Officer of the Government. The same would necessarily indicate non application of mind. Hence, the order of detention becomes unsustainable.
5. The same is disputed to by the State through their statement of objections, which is filed in the Court today. It is submitted that the order of detention is supported on the ground that the detentue has habitually committed the offences complained of. Therefore, a preventive detention order has been made is in the manner known to law.
6. On hearing learned Counsels, we are of the view that appropriate interference is called for. An identical issue came up for consideration before the Division Bench of this Court in the case of SMT.MAIMUNA Vs. GOVERNMENT OF KARNATAKA AND OTHERS in Writ Petition (HC) No.61 of 2019 disposed off on 18.07.2019. This Court relying upon various judgments of the Hon’ble Supreme Court, held that there has to be an application of mind independently by each one of the authorities as enunciated therein.
7. Whenever a representation is made to any authorities as specified, each one of the authorities would have to consider the representation by an independent application of mind. The right granted to the detenue to make a representation is a fundamental right, which requires to be so considered. Here also, it could be seen that the very same officer Mr.Rajneesh Goel has replied to the representations made by the detenue, acting as a Detaining Authority, as well as the Specially Empowered Officer, representing the State Government. These actions of the officer becomes unsustainable in law. Even though he is entitled to hold both the positions, insofar as the question of considering the representation is concerned, the same has to be independently considered. The Hon’ble Supreme Court in a catena of decisions and also as held by this Court in Maimuna’s case, the representations have to be independently considered. Failure to do so, would affect the fundamental rights of the detenue to a fair consideration of the representation. Therefore, the representations have been considered without any application of mind, is opposed to the well established principles of law governing the consideration of representations. Consequently, when the representations are not considered in accordance with law and the fundamental rights of the detenue being affected, his further detention becomes illegal.
8. For the aforesaid reasons, the Writ Petition Habeas Corpus No.125 of 2019 is allowed. The further detention of the detenue is held to be illegal.
The detenue, namely, Sri.Muhhamed Jaleel C.K., son of Sri.Ali C.K., is directed to be released from custody forthwith, if he is not required in any other case/s.
Registry is directed to communicate the operative portion of this order to the Jail Authorities, Central Prisons, Parapanna Agrahara, Bengaluru, forthwith, for necessary action.
Sd/- JUDGE Sd/- JUDGE *bgn/-