IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JANUARY, 2019 PRESENT THE HON'BLE MR. JUSTICE K.N. PHANEENDRA AND THE HON'BLE MR. JUSTICE K. NATARAJAN W.P.H.C. NO.107 OF 2018 BETWEEN:
SMT. NITHYA S., W/O. NAVEEN KUMAR N., AGED 19 YEARS, RESIDING AT NO.312, KOTHANUR DINNE, J.P. NAGAR 8TH PHASE, BANGALORE.
(BY SRI B. LETHIF, ADVOCATE) ... PETITIONER AND 1. THE STATE OF KARNATAKA BY ITS SECRETARY, DEPARTMENT OF HOME (LAW AND ORDER), VIDHANA SOUDHA, BANGALORE.
2. THE COMMISSIONER OF POLICE BANGALORE CITY, BANGALORE.
3. THE SUPERINTENDENT OF PRISON BANGALORE CENTRAL PRISON, BANGALORE.
... RESPONDENTS (BY SRI SANDESH J. CHOUTA, A.A.G. ALONG WITH SRI S.V. GIRIKUMAR, A.G.A) * * * THIS W.P.H.C. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER OF DETENTION DATED 20-8-2018 PASSED BY RESPONDENT NO.2 IN NO.11/CRM(4)DTN/2018 PRODUCED AT ANNEXURE-A AND ETC.
THIS W.P.H.C. COMING ON FOR ORDERS, THIS DAY, K.N. PHANEENDRA, J., MADE THE FOLLOWING:
O R D E R The petitioner has called in question the detention order passed by respondent No.2 dated 20-8-2018 in No.11/CRM(4)DTN/2018 and sought for quashing the said order on various grounds.
2. There is no dispute that respondent No.2 has initiated the detention proceedings against the husband of the petitioner, by name, Naveen Kumar N., and passed the detention order on 20-8-2018. The detention order has been passed on various grounds.
3. Learned counsel for the petitioner though taken up various grounds for quashing the detention order, but ultimately, he concentrated on the ground that the representation made by the detenu on 29-8-2018, which has been received by the Superintendent of Prison on 30-8-2018, has not been forwarded to the Advisory Board and there is no consideration of the representation of the detenu by the Advisory Board. Secondly, he concentrated on the ground that, the detaining Authority, from the date of detention has to submit the records to the Advisory Board within three weeks’ as contemplated under Section 10 of the Karnataka Prevention of Dangerous Activities of Boot-Leggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1985, (for short, ‘the Act’). The said provision clearly discloses that in every case where a detention order has been made under this Act, the State Government shall within three weeks’ from the date of detention of a person under the order, place before the Advisory Board constituted by it under Section 9, the grounds on which the order has been made and the representation, if any, made against the order, and in case where the order has been made by the Officer, also the report by such Officer under Sub- Section(3) of Section 3 of the Act.
4. Learned Additional Advocate General along with the learned Additional Government Advocate, so far as above grounds are concerned, have contended that no substantial material has been placed by the detenu before this Court in order to hold that those grounds are valid and untenable. Therefore, he requested the Court to dismiss the petition. He has also produced the entire case file before this Court.
5. We have gone through the entire material on record. On careful perusal of Section 8 of the Act, the said provision says that when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the State Government. Therefore, it goes to show that under Section 8 of the Act, an opportunity has to be provided to the detenu, if he makes any representation to the detaining Authority or to the Government; the same has to be sent to the Advisory Board as contemplated under Section 10 of the Act.
6. In order to appreciate the grounds urged before this Court, we have carefully perused the records produced by the learned Additional Advocate General. It is seen from the records that, the representation was given by the detenu on 29-8-2018 to the Superintendent of Prison and the endorsement available on the said representation shows that, the same has been acknowledged or received on 30-8-2018. The order-sheet maintained by the Government discloses that on 6-9-2018, the Government has decided to place the matter before the Advisory Board. Accordingly, an order was passed to place the matter before the Advisory Board that there is no mention as to on what exact date, the said entire records have been placed before the Advisory Board and on what exact date, the Advisory Board received the said case on its board so as to ascertain whether the said records were sent to the Advisory Board within three weeks as contemplated under Section 10 of the Act. The Act is very stringent and to be meticulously followed by the detaining Authority or the Government in specifically performing their duties as per the statutory requirement. In the absence of any material to show that, the said material have been placed before the Advisory Board within three weeks from the date of detention, it cannot be said that the order passed by the Government in detaining the detention of the detenu is valid.
7. This particular aspect is also supported by looking to the opinion or advise of the Advisory Board. Opinion of the Advisory Board is also available in the records. The said order does not disclose that any representation being made by the detenu to the detaining Authority and the same has been placed for consideration before the Advisory Board and the same has been considered by the Advisory Board. These are all important aspects conspicuously absent in the opinion of the Advisory Board.
8. This goes to show that all the material have been placed before the Advisory Board within the statutory period, or the representation had been placed before the Advisory Board for its consideration before giving its advise in this context.
9. It is worth to refer a decision of the Hon’ble Apex Court in the case of JAYANARAYAN SUKUL v. STATE OF WEST BENGAL, reported in 1970 (1) SCC 219, wherein it was observed that, “Broadly stated, four principles are to be followed in regard to representation of detenus.
Firstly, 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 calculation 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. The 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 detenu, 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.”
10. In view of the observation made by the Hon’ble Apex Court, sending of the representation to the Advisory Board and consideration of the representation by the Advisory Board are legal requirements, which does not appears to have been followed so far as this case is concerned.
11. In the aforesaid circumstances, the petitioner has to succeed. Hence, we proceed to pass the following order:
i. The petition is allowed. Consequently, the order passed by respondent No.2 in No.11/CRM(4)DTN/2018 dated 20-8-2018 (detention order) is hereby quashed;
ii. The detenu is ordered to be released, forthwith; and iii. The Registry is hereby directed to communicate the operative portion of this order to the concerned detaining Authority to release the detenu, forthwith.
SD/- JUDGE SD/- JUDGE kvk