1 ® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF MARCH, 2019 PRESENT THE HON’BLE MR. JUSTICE K.N. PHANEENDRA AND THE HON’BLE MR. JUSTICE K. NATARAJAN WPHC NO. 102/2018 BETWEEN SMT JAYAMMA W/O RAMANNA AGED 63 YEARS R/AT SHETTIPURA HALAGERE POST AMRUTHUR TALUK TUMKUR DIST – 572 111 ... PETITIONER (BY SRI. KIRAN S. JAVALI, FOR SRI CHANDRASHEKARA K., ADV.) AND 1. COMMISSIONER OF POLICE NO.1, INFANTRY ROAD BENGALURU – 560 001 BY SRI T. SUNIL KUMAR 2. STATE OF KARNATAKA BY SECRETARY HOME DEPARTMENT (LAW & ORDER) VIDHANA SOUDHA BENGALURU – 560 001 3. SENIOR SUPERINTENDENT CENTRAL PRISON BENGALURU – 560 100 ... RESPONDENTS (BY SRI. SANDESH J. CHOUTA, AAG A/W SRI. S. V. GIRIKUMAR, AGA) THIS WPHC IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THE DETENTION OF SRI. RAVI KUMAR @ KUMARA @ TANGO, S/O RAMANNA, BY ORDER NO.14/CRM(4)DTN/2018 DATED 29.08.2018 (ANNEXURE-A AND B) APPROVED BY RESPONDENT NO.2 BY ORDER NO.HD490 SST 2018 DATED 05.09.2018 (ANNEXURE-E) AND CONFIRMED BY THE RESPONDENT NO.2 BY ORDER NO.HD 490 SST 2018 DATED 01.10.2018 (ANNEXURE-F) AS ILLEGAL AND VOID ABINITIO.
THIS WPHC HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 05.02.2019 COMING ON FOR ‘PRONOUNCEMENT OF ORDER’, THIS DAY K.N. PHANEENDRA, J. MADE THE FOLLOWING:
ORDER The Writ Petitioner Smt. Jayamma, who is the mother of one Ravikumar @ Kumara @ Tango s/o. Ramanna of Shettipura, Halagere post, Amruthur Taluk, Tumkur District has filed this Writ Petition Habeus Corpus for the following reliefs:
(a) Declare the detention of Sri. Ravi Kumar @ Kumara @ Tango, S/o Ramanna, by Order No. 14/CRM(4)/DTN/2018 dated 29.08.2018 (Annexure “A” and “B”) passed by Respondent No.1 and approved by the Respondent No.2 by order No.HD490 SST 2018 dated 05.09.2018 (Annexure “E”) and confirmed by the Respondent No.2 by Order No.HD 490 SST 2018 dated 01.10.2018 (Annexure “F”) as illegal and void abinitio.
(b) Pass such order or orders declaring the order of Detention, the Order of Approval and the Order of Confirmation, as illegal and abinitio void.
(c) Pass such other orders including release of the Detenu forthwith.
(d) Award Costs.
2. It is the case of the petitioner that the detenu Ravikumar was taken into custody vide Detention Order noted above dated 29.8.2018. The said detention order is called in question on various grounds before this court. Though number of grounds have been taken, but the learned counsel for the petitioner has concentrated himself on some of the material grounds, and has elaborately argued before this court. The grounds urged before this court by the learned counsel are that:
(1) Firstly, with reference to the language used in the detention order while furnishing the English and Kannada version of the detention order, there are lot of differences and some of the documents furnished to the detenu, were not translated and they are not in Kannada language.
(2) Secondly, it is contended that all the documents which were referred to and relied upon by the detaining authority have not been furnished to the detenu particularly the bail orders passed in various cases releasing the accused on bail.
(3) Thirdly, it is contended that the accused detenu was acquitted in many cases and those acquittal judgments were neither furnished to the detenu nor it was secured and considered by the detaining authority or the other authorities.
(4) Fourthly, it is contended that some of the copies furnished to the detenu, are illegible copies and not readable. Therefore, the detention order is illegal, as the detenu could not make effective representation.
(5) Lastly, it is contended that, there was no consideration of the representation either by the detaining authority or by the Government before passing the detention order or even before confirming the detention order, by the Government.
Therefore, the learned counsel submits that for all the above said reasons, the order of detention is vitiated by serious incurable defects. Therefore, the same is liable to be quashed.
3. REGARDING GROUNDS 1 TO 4:
Elaborating his arguments on the above grounds, the learned counsel for the petitioner has drawn our attention to the documents which are furnished to the detenu, which were in two volumes, which is also admitted by the learned Additional Advocate General. At paragraph 15 of the petition, it is specifically mentioned that the documents at pages 44, 75-78, 90-198, 220-233, 251-261, 264, 295-
316, 337-365, 410-435, 454-486, 504-520, 536-539, 560-
563, 601-630, 718-722, 744-785, 794-813, 876-983, 994-
996 are in English language which are the order sheets passed in various criminal cases registered against the detenu and no translation of those documents in kannada language have been furnished.
4. It is further contended that, the detention order reveals that the detaining authority has relied upon the facts that, there is violation of bail conditions in some of the cases by the detenu, but no bail orders have been furnished in order to establish which are the conditions violated by the detenu. But those bail orders were not secured and considered by the detaining authority or the Government.
5. It is also contended that in some of the cases, detenu has been acquitted particularly with reference to Crime No.580/2012, Crime No.206/2013, Crime No.381/2013, Crime No.203/2013 and Crime No.352/2015.
6. So far as the above contentions are concerned, the learned Additional Advocate General also accepts that, the bail orders and acquittal orders, in some of the cases secured, but kannada translated version has not been furnished and in some of the cases, the acquittal orders were not secured and considered by the detaining authority. Even though the violation of bail conditions and acquittal orders are referred to in the orders, they are not actually relied upon by the detaining authority. Therefore, there was no obligation to furnish those documents.
7. The other important aspect canvassed is on providing of legible copies. Of course, some of the pages shown to us are not so legible, but the learned Additional Advocate General, contends that the copies which are not legible, have not been relied upon or referred to in the detention order. Therefore, there is no obligation on the part of the detaining authority to furnish those copies.
Both the counsels have relied upon various decisions in this regard which are going to be discussed in due course.
8. Before adverting to the grounds noted supra, it is just and necessary to consider as to how the grounds of detention have to be formulated and considered by the detaining authority. In this regard, we would like to rely upon a decision of the Hon'ble Apex Court reported in (2017) 3 SCC 133, between Goutam Jain and Union of India and another, wherein the Hon'ble Apex Court after considering various decisions has formulated some guidance as to what constitute “grounds” forming the basis for detention, at paragraph 22 of the judgment states that – “From the above noted judgment, some guidance as to what constitutes “grounds” forming the basis for detention order, can be easily discerned. In the first instance, it is to be mentioned that these grounds are the “basic facts”, on which conclusions are founded and these are different from subsidiary facts or further particulars of these basic facts. From the aforesaid, it is clear that each “basic fact” would constitute a ground and particulars in support thereof or the details would be subsidiary facts or further particulars of the said basic facts, which will be integral part of the “grounds”.
At paragraph 23, the Hon’ble apex court also observed that the detention order is based on multiple grounds inasmuch as various different acts, which form separate grounds, are mentioned on the basis of which the detaining authority formed the opinion that it was desirable to put the appellant under detention. The High Court has dissected the order of detention, which we find is the correct exercise done by the High Court in paras 11 & 12 of the impugned judgment.
It is also said at paragraph 24 of the judgment that Section 5A stipulates that when the detention order has been made, on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly that if one irrelevant or one inadmissible ground had been taken into consideration that would not make the detention order bad.”
Therefore in view of the above said decision, which is based on earlier decisions of the Hon'ble Apex Court, it is clear that the detaining authority can take any number of grounds for the purpose of detaining the detenu and any one of the grounds is sufficient, then the detention order cannot be interfered with, if the detention order is otherwise legal and not liable to be quashed on any other legal grounds.
9. The court also should bear in mind that the order of detention is a preventive measure which the Government would take and there is no opportunity for the detenu/accused either to seek bail under this particular enactment or get any opportunity before any court of law for pleading for his discharge with reference to the charges leveled against him in the detention order, there will not be any trial on the basis of the allegations made in the detention order and there would be no opportunity for the detenu to challenge the grounds urged in the detention order in any court of law except filing a petition for Habeaus Corpus under the provisions of the Constitution of India. Further, Article 22(5) of the Constitution of India and the various decisions of the Hon'ble Apex Court safeguard the constitutional right of liberty of a person. The said right can be curtailed only by meticulously following the legal process as contemplated under the Act itself. Therefore, in the background of the above said aspects, all the grounds urged has to be taken into consideration independently by this court.
10. The learned counsel for the petitioner has in fact relied upon various decisions to draw the attention of this court that the detaining authority has not followed meticulously the legal obligations cast upon them.
11. As could be seen from the detention order dated 29.8.2018, as many as 15 grounds are considered by the detaining authority in order to detain the detenu in jail. It is worth to refer the cumulative opinion of the detaining authority in keeping the detenu in jail. At page No.2 in English version of the detention order, it is stated that – “You along with your associates indulged in offences using deadly weapons such as sickle, machetes, knives, iron rods, roaming in the public areas disturbing the public peace and tranquility, threatening public and assaulting, robbing innocent people and creating panic and fear in the area. Even though you were arrested and legal action initiated against you every time, your rowdy activities disturbing public peace and order in the area was uncontrollable. After obtaining bail from the Hon’ble Courts, violating bail conditions, you have been continuing your goonda activities regularly.”
12. After quoting 15 grounds, the detaining authority after examining the report and materials placed before it, has come to the conclusion that in view of the anti social activities, a sense of insecurity has been created in certain areas of the city. Thus, it is certain that if the detenu is allowed to move free, he will continue to indulge in anti-social activities, drug peddling and his acts will disturb public order and future life of young ones. Therefore, on the above said grounds, the detaining authority has passed the detention order.
13. Though this court cannot go in detail with regard to the factual aspects on which the detaining authority satisfied itself as to the existence of sufficient ground or grounds, nevertheless, the court can definitely delve upon the legal aspects raised before this court bearing in mind the facts and grounds narrated in the detention order. Of course, there is no dispute that two volumes of documents have been furnished to the detenu.
14. In order to avoid repetition of facts and the legal aspects, we would like to take up and discuss the grounds No.1 to 4 urged in the petition as narrated at paragraph 2 of this judgment.
15. Learned Additional Advocate General has drawn our attention to page No.44, of the paper book furnished to the detenu is with regard to the Memorandum of Petition; and page Nos.75-78 are Post Mortem report in a particular case and from pages 90-198 and other pages referred to at paragraph 15 of the petition are all with reference to the order sheets in different crime numbers noted in the order of detention. It is submitted that the above said documents were neither relied upon nor referred to, in order to take any decision in passing the detention order. Therefore, he submits that there is no obligation to furnish any copy of such documents much less any translated copy. In this regard, the learned counsel for the petitioner and the learned Addl. Advocate General relied upon various decisions which we would like to quote them in order to arrive at a conclusion as to what would be the correct procedure, the detaining authority should follow with respect to furnishing of the documents and materials to the detenu. First, we would like to consider the rulings relied upon by the petitioner’s counsel.
15(a). In a decision reported in AIR 1969 SC 43 between Hadibandhu Das and District Magistrate, Cuttack and another, wherein the Five Judges Bench of the Hon'ble Apex Court has laid down the following principles at paragraph 6 of the judgment thus:
“6. The grounds in support of the order served on the appellant ran into fourteen typed pages and referred to his activities over a period of thirteen years, beside referring to a large number of court proceedings concerning him and other persons who were alleged to be his associates. Mere oral explanation of a complicated order of the nature made against the appellant without supplying him the translation in script and language which he understood would in our judgment, amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making a representation against the order. The order made by the District Magistrate, Cuttack not having been followed up by service within five days as provided by Section 7(1) of the communication to him of the grounds on which the order was made must be deemed to have become invalid and any subsequent detention of the appellant was unauthorized.”
This ruling clearly indicates that if the order of the detaining authority is complicated and does not easily understandable, then it is necessary to all the documents and their translation in script in the language in which the detenu would understand. If it is not furnished, it amounts to denial of the right of being communicated the grounds and the detention would become unauthorized.
15(b). In another decision reported in 1990 (2) SCC 1=1990 SCC (Cri.)258 between M.Ahmedkutty and Union of India and another wherein the Hon'ble Apex Court has observed at paragraph 20 that – “20. It is immaterial whether the detenu already knew about their contents or not. In Mehrunnissa Vs. State of Maharashtra [(1981) 2 SCC 709] it was held that the fact that the detenu was aware of the contents of the documents not furnished was immaterial and non-furnishing of the copy of the seizure list was held to be fatal. To appreciate this point one has to bear in mind that the detenu is in jail and had no access to his own documents. In Mohd.Zakir Vs. Delhi Administration it was reiterated that it being a constitutional imperative for the detaining authority to give the documents relied on and referred to in the order of detention pari passu the grounds of detention, those should be furnished so that the detenu could make an effective representation immediately instead of waiting for the documents to be supplied with. The question of demanding the documents was wholly irrelevant and the infirmity in that regard was violative of constitutional safeguards enshrined in Article 22(5) of the Constitution of India.”
[Emphasis supplied] Therefore, from the above decisions, it is clear that irrespective of the knowledge of the contents of the documents or the facts which are relied upon and referred to, have to be furnished to the detenu by the detaining authority.
15(c). In another ruling reported in AIR 1991 SC 2261 between Abdul Sathar Ibrahim Manik and. Union of India and others, wherein the Hon'ble Apex Court has observed that – “In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu.”
This decision also states that irrespective of whether the document is relied upon or referred to, if they are relevant to the case and the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention and those documents are also to be furnished to the detenu.
15(d). In another ruling reported in AIR 2012 SC 890 between Rushikesh Tanaji Bhoite and State of Maharashtra & Others, wherein the Hon'ble Apex Court has observed that – “9. In a case where detenu is released on bail and is enjoying his freedom under the order of the court at the time of passing the order of detention, then such order of bail, in our opinion, must be placed before the detaining authority to enable him to reach at the proper satisfaction.”
16. The learned counsel for the petitioner also relied upon some other rulings with regard to the strict compliance of law by the detaining authority which are also in our opinion relevant to be noted.
16(a). In a decision reported in 1981 SCC (Cri.) 853 between Rattan Singh and State of Punjab and others, wherein the Hon'ble Apex Court has rendered judgment under COFEPOSA Act, which is the similar enactment wherein it has been observed that – “The laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenus.”
16(b). In another ruling reported in AIR 1980 SC 1983 between Smt. Icchu Devi Choraria and Union of India and others, wherein the Hon'ble Apex Court has observed that – “If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them. It would not, therefore, be sufficient to communicate to the detenu a bare recital of the grounds of detention, but copies of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject to clause (6) of Article 22 of the Constitution of India in order to constitute compliance with clause (5) of Article 22 and sub-Section (3) of Section 3 of COFEPOSA Act. If this requirement is not satisfied, the continued detention of the detenu would be illegal and void”
17. Therefore, looking into the above said decisions cited by the learned counsel for the petitioner, it creates an imperative mandate that, the detaining authority has the legal obligation of serving the grounds of detention and to ensure that they are in the language known to the detenu, which he can easily understand as to the grounds of detention taken against him and the documents relied upon and referred to by detaining authority and further in order to understand the said grounds as well as the documents, the legible copies of the documents must also to be furnished. This is the fundamental basic duty on the part of the detaining authority to comply with the above said legal requirements.
18. So far as the above said aspect is concerned, the learned Additional Advocate General has fairly submitted that amongst 15 grounds taken up, in some of the cases, of course, the detenu have been acquitted, the judgment copies have not been furnished and in some of the cases, where the accused are acquitted, though the acquittal orders have been produced, but translated copies have not been produced. He fairly concedes that in ground No.2, in respect of Crime No.580/2012, the accused has been acquitted, but translated copy of the judgment was not furnished. In ground No.3 pertaining to Crime No. 206/2013, the detenu was acquitted, but the acquittal order was not produced. In ground No.4, in respect of Crime No.381/2013, detenu was acquitted, but the acquittal order was not produced. In ground No.7 in respect of the Crime No.203/2015, the detenu was acquitted and judgment copy was not secured and furnished. In ground No.8, in respect of the Crime No. 352/2015, acquittal order was produced, but translated copies are not provided. Therefore, the above said five grounds urged out of 15 grounds may not be available to the detaining authority. In respect of ground No.5, with reference to Crime No.193/2014, ground No.6 in respect of the Crime No. 198/2014, the cases are pending against the detenu. Likewise, in ground No.9 in respect of the Crime No. 336/2015, the detenu has been convicted on plea of guilt and furnished the copy of judgment, but translated version has not been furnished. In ground No.10 pertaining to Crime No.630/2013 and ground No.11 in respect of the Crime No.811/2015, the cases are still pending. In respect of ground No.12 pertaining to Crime No.278/2017, bail conditions said to have been violated, but bail orders have not been furnished, in respect of the Crime No.422/2016, the case is still pending. In respect of ground No.14, Crime No.356/2017, the investigation of the case is still pending and ground No.15, with regard to Crime No.368/2018, the case is still pending. So far as these grounds are concerned, the documents which are sought to be furnished with reference to the bail orders and other documents are not in fact relied upon by the detaining authority. Therefore, there is no obligation to furnish any other documents than bail orders. Though the wordings used that the bail conditions are violated in respect of some cases pending, but the reliance is not there with regard to the violation of any bail conditions in other cases except in ground No.12, wherein it is specifically stated that violation of the bail conditions are there, but in that case, the bail order was not furnished. Therefore, ground No. 12 also may not be available to the detaining authority otherwise the detention order is valid so far as other grounds are concerned. There is only general reference with regard to bail condition being violated, but not relied upon, hence those documents which were not relied upon and only referred to and there is no obligation to furnish those copies.
19. Learned Additional Advocate General has strongly bent upon to argue that when the documents are not relied upon by the detaining authority, there is no obligation to furnish those documents which are simply referred to in the grounds of detention. In this context, he relied upon various rulings of the Hon'ble Apex Court.
20. In a decision reported in (1975) 2 SCC 81 between Khudiram Das and The State of West Bengal and Others, wherein the Hon'ble Apex Court has observed that – “The communication of the grounds of detention is, therefore, also intended to subserve the purpose of enabling the detenu to make an effective representation. If this be the true reason for proving that the grounds of which the order of detention is made should be communicated to the detenu, it is obvious that the ‘grounds’ mean all the basic facts and materials which have been taken into account by the detaining authority in making the order of detention and on which, therefore, the order of detention is based.”
Therefore, the learned Additional Advocate General submitted that, the basic facts and the materials only be furnished along with the grounds of the detention order. Therefore, it does not mean to say, every document which is referred to in the detention order, shall be furnished.
21. He has relied upon another ruling of the Hon'ble Apex Court reported in (1981) 3 SCC 317 between Mst.L.M.S.Ummu Saleema and Shri B.B.Gujaral & another, wherein the Hon'ble Apex Court has observed after relying upon Khudiram Das’s case and relying upon other cases has held that – “Failure to supply the documents and materials which are only casually or passingly referred to in the course of narration of the facts in the grounds of detention and are not relied upon by the detaining authority in making detention order, held, would not render the detention illegal.”
Therefore, he submits that from the above said decision, it is clear that every failure to furnish copies of such documents, for which, only a reference is made in the detention order, which does not mean to say there is violation of any constitutional right of the detenu.
22. In another ruling reported in (1992) 1 SCC 1 between Abdul Sathar Ibrahim Manik and Union of India and others, which is also reliedupon by the petitioner’s counsel in this case, wherein the Hon'ble Apex Court has set down certain conclusions at paragraph 12 at page 17 of its judgment, at 6th point, the Hon'ble Apex Court has observed that – “(6) In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu.”
23. Learned Additional Advocate General clarifies that if those bail orders are relied upon by the detaining authority, that particular document should be furnished to the detenu. The learned counsel also relied upon another ruling reported in (2005) 7 SCC 70 between J. Abdul Hakeem and State of T.N. and others, wherein the Hon'ble Apex Court after relying upon Ahamedkutty’s case, Kamarunnissa’s case and Radhakrishnan Prabhakaran’s case at paragraph 8, referring to the decision of Radhakrishnan Prabhakaran Vs. State of Tamilnadu reported in (2000) 9 SCC 170, has observed that – “8. we make it clear that there is no legal requirement that a copy of every document mentioned in the order shall invariably be supplied to the detenu. What is important is that copies of only such of those documents as have been relied on by the detaining authority for reaching the satisfaction that preventive detention of the detenu is necessarily shall be supplied to him.”
24. From the above said decisions narrated by the learned Additional Advocate General and also as argued by him, it is clear that he want to persuade this court that detenue has a right, to be supplied with the material documents on which reliance is placed by the detaining authority for passing the detention order. On the other hand, detention order is not vitiated, if the document although referred to in the order is not supplied which is not relied upon by the detaining authority for forming its opinion or made the basis for passing the order of detention. Therefore, he submits that there is no necessity of supplying the copies of those documents to the detenu. He further argued that, though in some of the cases, the detaining authority has referred to some of the documents or referred to with reference to some of the orders granting of bail, there is no obligation to furnish those bail applications/orders to the detenu.
25. From the above said detailed discussion in the decisions of the Hon'ble Apex Court and the submissions made by the learned counsels, of course, in some of the decisions, it is stated that even to some extent, the documents which are referred to also should be provided to the detenu, if those documents are in fact led to the consequences of passing of the detention order. But the totality of the above said judgments clearly goes to show that, merely non furnishing of a document, and mere reference of the same would not vitiate the detention order, but it is vitiated if the documents which are relied upon and the translated and legible version of those documents are not furnished to the detenu. This in our opinion, creates some ambiguity which is not clarified in the above referred judgments as to what is meant by the referred documents and what is meant by the relied upon documents and how they can be distinguished and understood by an ordinary person.
26. It is worth to note here that all the detenus may not be so well versed in understanding the detention order. Some of the detention orders may be complicated in nature, incorporating various grounds taken up by the detaining authority. If the order of detention is read, an ordinary man could not be able to understand as to which are all the documents actually relied upon and which are all the documents which are only referred to, then it may cause serious impediment to give an effective representation against such order. In such an eventuality, the detaining authority has to make it abundantly clear to the detenu, to make him to understand which are all the documents relied upon by them and which are all the documents only referred to so as to comply with the legal requirement of furnishing those relied upon legible, translated documents. It also enables the detenu to understand that all other documents which are only referred documents and that there was no obligation on the part of the detaining authority to furnish those documents.
27. In the absence of specifically referring the documents in the detention order and specifically not stating which are all the documents relied upon or referred to in the detention order, it would be very difficult even to a person who is well versed in legal aspects to specifically and in a candid manner to distinguish between the documents relied upon and referred thereto. Therefore, it is incumbent upon us to say that this can be clarified by the detaining authority themselves.
28. Of course, in none of the above cited decisions, it is stated that what is meant by ‘relied upon documents’ and what is meant by ‘referred documents’. Even if we go by the dictionary meaning for ‘relied upon’ documents, it means the documents which are actually relied upon and contents of the documents and the factual aspects of the documents are made basis for the purpose of tentative or final conclusion, that means the relied upon documents are the depended documents to reach a tentative or final conclusion. Per contra, ‘referred documents’ or referred facts are that they are just mentioned and they are not depended upon for the purpose of arriving at a tentative or final conclusion. Therefore, the referred documents are only mere mentioned documents, but actually those documents are not made basis for the purpose of arriving at any conclusion. However, the ‘relied upon documents’ or relied upon facts are made basis for the purpose of arriving at a temporary or final conclusion. This has to be borne in mind by the detaining authority or the Government while actually distinguishing between the relied upon facts, documents and referred documents and facts 29. Of course, in view of the decision referred to by us in Gautam Jain vs. Union of India and another’s case, each and every ground taken up by the detaining authority is sufficient to detain a detenu even if the detaining authority fail, on some of the grounds taken up in the detention order. But each ground mentioned in the order should be clear and understandable by the detenu. Therefore, in our opinion, underneath each ground or at least anywhere in the body of the order, the detaining authority shall specifically mention the documents which are relied upon by them and the legible, translated copies of those documents are furnished to the detenu. The detaining authority also required to make a reference in the order or in each ground underneath the ground or in the body of the order, as to which are all the documents which are only referred to etc.,. This exercise of the detaining authority would further clarify the detention order and also enable the detenu to make an effective representation to the detaining authority or to the Government.
30. Though we found that in this particular case, the detaining authority has not made such exercise in each ground showing that which are all the documents which are relied upon or referred to, an omnibus satisfaction has been expressed as noted in the early part of this judgment with reference to the facts and materials relied upon to formulate the grounds. Even we found that in the detention order an allegation has been made against the detenu that he was involved in drug peddling, but how the detaining authority got this ground and how the detaining authority has arrived at such a conclusion that the detenu was involved in drug peddling is not depicted in the order based on any factual aspects or the documents thereon. Therefore, the said general ground taken while satisfying itself, the detaining authority has not made any efforts to elaborate the same. This is also in our opinion is beneficial to the detenu in this case.
31. The detaining authority has not referred to any of the documents either relied upon or referred to on any of the grounds in the detention order, but the detaining authority has passed such an order leaving it to the perception of each and every person who reads that order according to their own perception and to distinguish which are of the documents only referred to or relied upon by the detaining authority. In our opinion, this will create a serious ambiguity and problem because it is not for the person who reads the detention order, to decide as to which are the documents relied or referred to by the detaining authority. It is the detaining authority which is the competent, proper and authoritative authority to say as to which are all the documents relied upon by them and the documents which are only referred to in the order. No other person shall be allowed to interpret this particular aspect otherwise, every person who reads the detention order will have his own perception and decides according to his whims and fancies in order to nullify the effect of the detention order. Therefore, by this order, we direct the detaining authority atleast hereinafter shall mention underneath each grounds of detention in the detention order as to which are all the documents relied upon by them and the documents which are only referred to. Even if the referred documents are not mentioned atleast they should specifically mention which are all the documents relied upon and whether copies of those documents and translated and legible versions have been furnished to the detenu so as to enable him to make an effective representation.
32. It is also to be borne in mind, the above said direction required to be given, considering the capability of the detenus in understanding the detention order. It is evident from the Act itself that they are not assisted by any legal person while reading and understanding the detention order for making their representations to the detaining authority or to the Government. Therefore, the detaining authority has to understand that the order of detention and grounds narrated in the detention order and the documents relied upon by them are so intelligible and understandable by the detenu, and the said obligation of the authority should not be a mere formality. Therefore, we are inclined to make such a direction as noted above.
33. This judgment shall not be treated as applicable to the orders which are already passed, but the above said direction has to be followed hereinafter by the detaining authorities.
34. Now, coming to the last and valid ground which is with reference to the representation, both the counsels have no dispute that in this particular case, the representation was submitted by the detenu on 3.9.2018 and also on 24.9.2018 to the detaining authority.
35. Before adverting to who and how the representation has to be considered and whether the representation was accordingly considered by the competent authority or not, it is just and necessary to bear in mind, some of the relevant decisions relied upon by the learned counsels in this regard.
36. First and foremost decision is reported in AIR 1970 SC 675 between Jayanarayan Sukul and State of West Bengal, wherein the Hon'ble Apex Court has laid down certain principles with regard to the consideration of representation in the following manner:
“Broadly stated, four principles are to be followed in regarding representation of detenus. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu 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 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 detenu’s representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will send the case along with the detenu’s representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detnu the Government will release the detenu. If the advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu.”
37. In another ruling reported in 1981 SCC (Cri.) 853 between Rattan Singh & Another and State of Punjab & Others, wherein the Hon'ble Apex Court has observed that – “Representation to Central Government - Failure of jail authorities to forward detenue’s representation to the Central Government either directly or through the State Government - representation lying unattended for several months – Held detention illegal under Section 11 of COFEPOSA Act, 1974.”
38. In another ruling reported in 1995 SCC (Cri.) 643 between Kamalesh Kumar Ishwardas Patel and Union of India and others connected with other cases, the Hon'ble Apex Court after detailed and meticulous consideration of other previous decisions has laid down certain principles with regard to preventive detention that-
“Preventive Detention - Representation before appropriate authority/Government – Detaining Authority - Officer specially empowered to order detention under COFEPOSA Act/PIT NDPS Act – When such officer passes order of detention detenu has a right to make representation to him and he is obliged to himself consider and dispose of the same – This is so by giving effect to the expression ‘without prejudice to the provisions of S.21 of the General Clauses Act, 1897’ in S.1 of COFEPOSA Act and S.12 of PIT NDPS Act – This right of detenu flows from Article 22(5) and is in addition to his right to make representation to State Government or Central Government – Detenu has to be informed about this right – Government which specially empowers the officer to make order of detention does not become detaining authority on the analogy that the order passed by such officer acquires deemed approval by the Government from the time of its issue.”
Therefore, the Hon'ble Apex Court has further observed at para 46 of the judgment cited supra that – “Having found that the representation of the person detained was not considered by the officer making the order of detention, the High Court was in error in holding that the said failure on the part of the detaining authority to consider and decide the representation is not fatal to the order of detention. We are therefore, unable to up hold the answer given by the Full Bench to Question No.3 and, in our view, the said question should be answered in the ‘Affirmative’. On that basis it has to be held that since there was a denial of the constitutional safeguard provided to the detenu under Article 22(5) of the Constitution on account of the failure on the part of the officer who had made the order of detention to independently consider the representation submitted by the detenu against his detention and to make a decision on the said representation, the further detention of the detenu Ishwardas Bechardas Patel is rendered illegal.”
39. In a decision reported in AIR 1994 SC 1479 between Moosa Husein Sanghar and State of Gujarat and others, wherein the Hon'ble Apex Court has observed relying upon various other earlier rulings in the following manner:
“The contents of Article 22(5) as well as the nature of duty imposed thereby on the detaining authority support the view that so long as there is a representation made by the detenu against the order of detention, the aforesaid dual obligation under Article 22(5) arises irrespective of the fact whether the representation is addressed to the detaining authority or to the Advisory Board or to both. The mode of address is only a matter of form which cannot whittle down the requirement of the constitutional mandate in Article 22(5) enacted as one of the safeguards provided to the detenu in case of preventive detention.”
It must, therefore, be held that merely because the representation was addressed to the Advisory Board and not to the State Government., did not absolve the State Government from the constitutional obligation flowing from Article 22(5) to consider the said representation.”
40. In the last decision cited by the learned Additional Advocate General reported in (1991) 1 SCC 476 between K.M. Abdulla Kunhi & another and Union of India & others, wherein the Hon'ble Apex Court has made the following observation -
“(1) The constitutional right to make representation under clause (5) of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation. However, the obligation of the government to afford to the detenu an opportunity to make representation and to consider such representation is distinct from its obligation to refer the case of detenu along with the representation to the Advisory Board under clause (4) of Article 22 read with Section 8(c) of the COFEPOSA Act to enable the Board to form its opinion and send a report to the government. It is implicit in clauses (4) and (5) of Article 22 that the government while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation. It has to consider the representation on its own without being influenced by any such view of the Board. The obligation of the government to consider the representation is different from the obligation of the Board to consider the representation at the time of hearing the references. 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 the representation and the case of the detenu to examine whether there is sufficient case for detention. The consideration by the Board is an additional safeguard and not a substitute for consideration of the representation by the government. The right to have the representation considered by the Government is safeguarded by Clause (5) of Article 22 and it is independent of the consideration of the detenu’s case and his representation by the Advisory Board under clause (4) of Article 22 read with Section 8(c) of the Act.”
The Hon'ble Apex Court has further clarified at para 17 that -
“17. The crucial question that remains for consideration is whether the government should consider and dispose of the representation before confirming the detention order. This Court in V.J.Jain case has observed (at SCC P.405) that it is a constitutional obligation under Clause (5) of Article 22 to consider the representation before confirming the order of detention. If it is not so considered, the confirmation becomes invalid and the subsequent consideration and rejection of the representation could not cure the invalidity of the order of confirmation.”
41. Last, but not least, the decision of the Hon'ble Apex Court reported in (2015) 16 SCC 177 between Golam Biswas and Union of India and another also play a dominant role. In this particular decision, the Hon'ble Apex Court has observed that – “Placement of detenu’s representation before the Advisory Board is mandatory obligation of the competent authority and its binding effect is also considered. If the Advisory Board upholds the order of detention, it would be open to Central Government to continue detention or release detenu, depending on the merits of each case. The fact that opinion of the Advisory Board against continuance of order of detention is final vis-à- vis the appropriate Government is the motivating imperative for requiring appropriate Government to forward pending representation of detenu to Advisory Board so as to enable it to traverse entire panorama of grounds taken against detention order for an effective, timely and meaningful consideration of the case of detenu.”
42. On materials reading and understanding the above said decisions, it is amply clear that the detaining authority has to provide an opportunity as early as possible complying all the requirements of law along with the detention order and the documents relied upon by the detaining authority to the detenu so as to enable him to make an effective representation to the detaining authority. If the Government itself is the detaining authority under sub clause (1) of Section 3 of Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1985, then the Government has to consider the representation filed by the detenu, if the said power of detention is provided to any other authority under sub clause (3) of Section 3, the said detaining authority has to consider the representation filed by the detenu. Thereafter, the detention order containing grounds and other materials along with the representation has to be sent to the Advisory Board u/s.10 of the Act for its consideration. Then, u/s.11 of the Act, the Advisory Board after considering the materials placed before it, i.e., including representation of the detenu has to give its opinion to the State Government within seven weeks from the date of detention of the concerned. Thereafter, u/s.12 of the Act, the Government either confirm the detention order or vacate the order of detention of the person concerned depending on the report of the Advisory Board. However, if the Advisory Board has reported that there are no sufficient cause for the detention of the person concerned, the State Government shall revoke the detention order and cause the person to be released forthwith.
43. We have found in this case as discussed above that some of the grounds taken up by the detaining authority is vitiated, but irrespective of the same, they are not sufficient to hold that all the grounds are vitiated with reference to non furnishing of the documents and the legible copies and the translated copies of the documents. There is no specific mention as to which are all the documents relied upon by the detaining authority, which are not furnished to the detenu. Therefore, in our opinion, this ground is not available though we have observed that hereinafter the detaining authority has to mention in the order underneath each ground of detention with reference to the documents relied upon or referred to.
44. Further it is to be remembered that, irrespective of the representation being filed to the detaining authority or Government or to the Advisory Board, directly, it will not absolve the responsibility of the Government or the detaining authority as the case may be to consider the said representation. In order to make it further clear that if the representation is made to the Government or to the detaining authority as the case may be, before sending the said representation to the Advisory Board, the detaining authority or the Government are duty bound mandatorily to consider the said representation for to serve a specific purpose. If the detaining authority or the Government as the case may be, considering the representation of the detenu decides not to continue the detention, there ends the matter, then there is no need for the detaining authority or the Government to send the papers to the Advisory Board for its opinion.
45. If the representation is directly made to the Advisory Board, though there was no opportunity to the Government or the detaining authority to consider the said representation prior to sending the matter to the Advisory Board, in such an eventuality, after the Advisory Board gives its opinion holding that there are sufficient reasons to detain the detenu then it becomes obligatory on the part of the Government to consider the representation and then pass appropriate orders either confirming the detention order to continue the detention of the person concerned or revoking the detention order. This discretion is in built under Section 12 of the Act itself. Therefore, it is clarified that even if the Advisory Board expresses the view that there is sufficient cause for detention, further discretion vests with the Government after considering the representation, it may revoke the detention for valid reasons. In view of the above said safeguards, which amounts to a constitutional safeguard has to be meticulously followed by the detaining authority.
46. Therefore, it is abundantly clear from the above said decisions and the provisions of law, that there must be consideration of the representation at two levels. Firstly by the Government or by the detaining authority as the case may be, at the earliest prior to sending papers to the Advisory Board; if not after the report of Advisory Board by the Government, and Secondly by the Advisory Board. Therefore, the consideration of the representation by the Advisory Board shall not in any manner absolve the responsibility of the Government or the detaining authority from considering the representation.
47. In the wake of the above said dictum and principles laid down by the Hon'ble Apex Court in the decisions cited supra and as understood by this court in the above manner, now this court has considered the factual matrix of this case.
48. Admittedly, a representation was given on 3.9.2018 and on 24.9.2018 and the same were considered by the Advisory Board. But on looking into the records, these representations were only considered by the Advisory Board and not considered either by the Government or by the detaining authority prior to or after sending of the papers to the Advisory Board for its opinion. Therefore, there is no consideration of the representations made by the detenu. Therefore, the whole of the detention order is vitiated for non compliance of the constitutional provisions under Article 22(5) of the Constitution of India. Therefore, we have no hesitation to quash the detention order passed by the detaining authority as illegal and void abinitio.
49. Before parting with this judgment, though we cannot exhaustively laid down meticulous guidelines, we prefer to lay down certain guidelines which may be helpful to the Government and the detaining authority while initiating the proceedings under the Preventive Detention Laws. According to us, the following are the few guidelines framed for passing the preventive detention order under the Act, for the benefit of the state holders:
(1) Detention order in writing, soon after it is passed, should be communicated to the detenu. The detaining authority should also communicate the grounds of detention comprising of basic facts, and relied upon materials, in their entirety with documents, statements, or other materials, not later than 5 days from the date of passing of the detention order.
(2) If two or more grounds are relied upon by the authority, each of the grounds shall be separately and distinctly mentioned in the Detention order, as each one of the ground if valid is sufficient to validate the order even if other grounds are vitiated or invalidated for any reason.
(3) Every Detention order shall be supplied with the translated legible version of all the scripts and documents relied upon, in the language he understands to make an effective representation.
(4) Detaining authority shall specifically disclose with reference to each of the grounds for detention, which are all the documents relied upon and which are the documents casually or passingly referred to in the course of narration of facts (including the bail orders) and shall furnish the relied upon documents along with the detention order. If the detaining authority prefers to furnish the referred documents also, those materials also to be furnished in compliance with the first and third guidelines noted supra.
(5) So far as bail applications and orders, and violation of bail conditions are concerned, if the detenu is on bail, if the bail application and bail orders, conditions therein are with reference to any vital ground or vital materials, placing of those materials though may not always be mandatory but such requirement depends upon the facts and circumstances of each case, which the detaining authority and later Courts have to very carefully examine whether non placing of those materials in any way prejudiced the detenu. However failure to furnish any or all the referred documents shall not invalidate the order of Detention.
(6) If the order of detention is challenged, the courts also shall have to independently consider each ground, to ascertain on each ground whether the order is sustainable or not with reference to the guidelines herein refereed.
(7) If any representation is submitted by the detenu before the Detaining Authority, addressing the same to the Detaining Authority, government, or to Advisory Board, irrespective of the fact that, to whom it is addressed, the same shall be as early as possible considered by the appropriate Government, before sending the papers to the Advisory Board. If the appropriate Government revokes the detention order and directs release of the detenu, there arises no question of sending the case papers to the Advisory Board.
(8) The Government shall within three weeks from the date of the detention order, place the order before the Advisory Board along with all the materials, grounds, representation if any made by the detenu, along with any report by such officer made under sub-sec (3) of section 3 of the Act.
(9) The Advisory Board shall maintain records disclosing the date of receipt of the detention order and other materials, including the representation of the detenu. The Advisory Board shall consider all the materials placed before it, including the representation if any of the detenu, if necessary after calling for such further information as it deems it necessary, and if the person concerned desires to be heard, after hearing him in person and then send its report to the Government within Seven Weeks from the date of detention of the person concerned.
(10) After receipt of the report from the Advisory Board, the Government before passing any order of confirmation under section 12 of the act shall consider the representation of the detenu, if not already considered by it for reasons that, it was either directly submitted before the advisory board or the sub delegated Authority or received later after the Advisory Board’s report. Therefore, it is mandatory that appropriate Government shall consider the representation of the detenu, at least once at any stage before passing the final order of confirmation.
(11) The consideration of the representation if received before confirmation, order at any stretch of imagination, cannot be done after the confirmation of the detention order. It amounts to no consideration in accordance with law and procedure.
(12) If the Advisory Board has sent a report, stating that there is sufficient cause for the detention of the person concerned the Government, may confirm or revoke the said order. If the report says that there is no sufficient cause for detention, the Government, shall revoke the detention order and cause the person to be released forth with. It has no discretion to detain such person any more for any reason on the basis of such detention order.
(13) If the order is revoked either under section 12 or under section 14 as the case may be, or the period of detention under the order is fully undergone by the detenu, in such an event the detaining authority shall forth with release such person from detention. Further the detaining authority shall not pass any extended or further detention order on the same grounds. However, if any subsequent order of detention has to be passed, it shall be by a separate order on fresh grounds after again following the procedure, but not on the grounds on which earlier order was passed.
50. We feel it just and appropriate to direct the Registrar General, High Court of Karnataka, Bengaluru, to circulate this Judgment to the concerned authorities who are in the helm of affairs particularly to the following authorities:-
1. Additional Chief Secretary Home Department, Room No.222 Government of Karnataka Vidhana Soudha, Bengaluru – 560 001 2. The Principle Secretary Department of Law Room No.33 ground floor Vidhana Soudha, Bengaluru – 560 001 3. Director General and Inspector General of Police Director General of Police Karnataka, No.2 Police Headquarters Nrupathunga Road Bengaluru – 560 001 (Who in turn circulate the judgment and order to all commissioners of Police, Superintendent of Police who are authorized under Section 3(2) of Goonda Act to pass orders of preventive detention.
4. Principal Secretary Revenue Department Vidhana Soudha Bengaluru – 560 001 (Who in turn circulate the judgment and order to all District Magistrates/Deputy Commissioners of all the Districts who are authorized under Section 3(2) of Goonda Act to pass orders of preventive detention.
5. Secretary Department of Parlimentary affairs Room No.137, Opp to Kengal Statute Vidhana Soudha, Bengaluru – 560 001 51. In view of the above said discussion, we proceed to pass the following:
ORDER The Writ Petition Habeas Corpus is allowed. Consequently, the detention order passed by the respondent No.1 in No.14/CRM(4)/DTN/2018 dated 29.8.2018 and approved by respondent No.2 vide order No.HD490 SST 2018 Dated 5.9.2018 and confirmed by the respondent No.2 by order No.HD 490 SST 2018 dated 1.10.2018 are hereby quashed. It is ordered that the detenu shall be released forthwith.
Registry is hereby directed to communicate the operative portion of this order to the concerned detaining authority for release of the detenu forthwith.
Sd/- JUDGE Sd/- JUDGE PL*