IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 20TH DAY OF NOVEMBER 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT PETITION (HC) NO.111 OF 2019 BETWEEN:
SIDDEEQ KADAVATH SON OF ABDUL KHADAR AGED 39 YEARS RESIDING AT ARIF MANZIL KADAVATH, THALANGARA KASARAGOD – 671 122 (BY SRI. KIRAN S. JAVALI AND … PETITIONER SRI. CHANDRASHEKARA K., ADVOCATES) AND:
1. GOVERNMENT OF KARNATAKA BY PRINCIPAL SECRETARY HOME DEPARTMENT, VIDHANA SOUDHA BANGALORE – 560 001 2. ADDITIONAL CHIEF SECRETARY TO GOVERNMENT OF KARNATAKA HOME DEPARTMENT, VIDHANA SOUDHA BANGALORE – 560 001 BY SHRI RAJNEESH GOEL 3. SENIOR SUPERINTENDENT CENTRAL PRISON BANGALORE – 560 100 (BY SRI. DHYAN CHINNAPPA, … RESPONDENTS ADDITIONAL ADVOCATE GENERAL ALONG WITH SRI. S. K. GIRI KUMAR, AGA) THIS WRIT PETITION (HC) 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. AHAMED SAMASHEER ALIAS CHECHU, BY ORDER HD 10 SCF 2019 DATED 03.04.2019 (ANNEXURE-A) AS ILLEGAL AND VOID AB INITIO.
THIS WRIT PETITION (HC) COMING ON FOR ORDERS THIS DAY, RAVI MALIMATH J., MADE THE FOLLOWING:
ORDER The petitioner is the brother of the detenue Sri. Ahamed Samsheer alias Chechu He is interested in the wellbeing and interest of the detenue. An order of preventive detention was passed by the 2nd respondent dated 03.04.2019, in terms of Annexure-A. The grounds of detention in terms of Annexure-B were also furnished to him. In terms of paragraph 72 to 75, he was given a right to make representations to the Detaining Authority, the Government of Karnataka, the Central Government and the Advisory Board. In pursuance whereof, he made separate representations to the Detaining Authority, the Government of Karnataka and the Advisory Board. No response was received. Hence the instant petition was filed seeking to quash the order of detention.
2. On service of notice, statement of objections have been filed by the respondents through the Under Secretary In-charge, Home Department. During the course of hearing this petition, the learned counsel for the petitioner has filed a memo enclosing a copy of the endorsement issued by the 2nd respondent, Additional Chief Secretary to the Government, Home Department, rejecting his representation.
3. Sri. Kiran S. Javali, learned counsel for the petitioner, primarily contends that he had made three representations, one to the Detaining Authority, one to the Government of Karnataka and one to the Advisory Board. The Additional Advocate General, Sri. Dhyan Chinnappa, by placing reliance on the records, submits that the Detaining Authority has rejected the representation of the petitioner which is the endorsement dated 08.11.2019. It is also submitted that the Government has also rejected the representation of the petitioner in terms of the endorsement dated 08.11.2019, which is the endorsement filed in court today by learned counsel for petitioner.
4. What is being contended is that the Detaining Authority was the Additional Chief Secretary to the Government, Home Department. He has rejected the representation of the petitioner. The second representation made to the Government of Karnataka had to be considered by the Government of Karnataka. The endorsement purported to be issued on behalf of the Government of Karnataka is an endorsement issued by the Detaining Authority, who also happens to be the Additional Chief Secretary to the Government, Home Department. Para-1 of the order itself indicates that the representation of petitioner has been re-directed to the Additional Chief Secretary to the Government, Home Department, who is the Detaining Authority. Therefore, it is pleaded that law demands that each one of the authorities independently considers the representations of the detenue.
5. In the instant case, the representation made to the Detaining Authority having been rejected, it is that very person who acts on behalf of the Government and has rejected the endorsement. That the same is not permissible in law. In support where of, he relies on the judgment of the Division Bench of this court in the case of SMT. MAIMUNA VS. GOVERNMENT OF KARNATAKA AND OTHERS, passed in Writ Petition (HC) No.61 of 2019 dated 18.07.2019, wherein a similar view was considered by the Division Bench and held that the consideration by each one of the authorities would have to be independent. That there cannot be a two in one reply to the representations of the petitioner. In so holding, the Division Bench relied on the following judgments of the Hon'ble Supreme Court:
(i) In the case of RAMA DHONDU BORADE VS. V.K.SARAF, COMMISSIONER OF POLICE AND OTHERS, reported in AIR 1989 SCC 1861, the Hon’ble Supreme Court held at para 20 as follows:
“20. The Detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution. Correspondingly, there is a constitutional mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correctness of the detention order clamped upon him and requesting for his release to consider the said representation within the reasonable dispatch and to dispose the same as expeditiously as possible. This constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering the continued detention constitutionally impermissible and illegal, since such a breach would defeat the very concept of liberty – the highly cherished right – which is enshrined in Article 21 of the constitution.”
(ii) In the case of RATTAN SINGH VS. STATE OF PUNJAB AND OTHERS, reported in 1981 SCC (Cri) 853, the Hon’ble Supreme Court at para – 4 held as follows:
“4.There is no difficulty insofar as the representation to the Government of Punjab is concerned. But the unfortunate lapse on the part of the authorities is that they overlooked totally the representation made by the detenu to the Central Government. The representations to the State Government and the Central Government were made by the detenu simultaneously through the Jail Superintendent. The Superintendent should either have forwarded the representations separately to the Governments concerned or else he should have forwarded them to the State Government with a request for the onward transmission of the other representation to the Central Government. Someone tripped somewhere and the representation addressed to the Central Government was apparently never forwarded to it, with the inevitable result that the detenu has been unaccountably deprived of a valuable right to defend and assert his fundamental right to personal liberty. May be that the detenu is a smuggler whose tribe (and how their numbers increase!) deserves no sympathy since its activities have paralyzed the Indian economy. But 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 detenu. Section 11(1) of COFEPOSA confers upon the Central Government the power to revoke an order of detention even if it is made by the State Government or its officer. That power, in order to be real and effective, must imply the right in a detenu to make a representation to the Central Government against the order of detention. The failure in this case on the part either of the Jail Superintendent or the State government to forward the detenu’s representation to the Central Government has deprived the detenu of the valuable right to have his detention revoked by that Government. The continued detention of the Detenue must therefore be held illegal and the detenu set free.”
(iii) In the case of KAMALESHKUMAR ISHWARDAS PATEL VS. UNION OF INDIA AND OTHERS, reported in 1995 SCC (Cri) 643, the Hon’ble Supreme Court at para – 38 held as follows:
“38. Having regard to the provisions of Article 22(5) of the Constitution and the provisions of the COFEPOSA Act and the PIT NDPS Act the question posed is thus answered: Where the detention order has been made under Section – 3 of the COFEPOSA Act and the PIT NDPS Act by an officer specially empowered for that purpose either by the Central Government or the State Government the person detained has a right to make a representation to the said order and the said officer is obliged to consider the said representation and the failure on his part to do so results in denial of the right conferred on the person detained to make a representation against the order of detention. This right of the detenu is in addition to his right to make the representation to the State Government and the Central Government where the detention order has been made by an officer specially authorized by a State Government and to the Central Government where the detention order has been made by an officer specially empowered by the Central Government, and to have the same duly considered. This right to make a representation necessarily implies that the person detained must be informed of his right to make a representation to the authority that has made the order of detention at the time when he is served with the grounds of detention so as to enable him to make such a representation and the failure to do so results in denial of the right of the person detained to make a representation.”
(iv) In the case of AMIR SHAD KHAN vs. L.HMINGLIANA AND OTHERS, reported in 1991 SCC (CRI) 946, the Hon’ble Supreme Court at para–3 held as follows:
“3.xxx Thus on a conjoint reading of Section 21 of the General Clauses Act and Section 11 of the Act it becomes clear that the power of revocation can be exercised by three authorities, namely, the officer of the State Government or the Central Government, the State Government as well as the Central Government. The power of revocation conferred by Section 8(f) on the appropriate Government is clearly independent of this power. It is thus clear that Section 8(f) of the Act satisfies the requirement of Article 22(4) whereas Section 11 of the Act satisfies the requirement of the latter part of Article 22(5) of the Constitution. The statutory provisions, therefore, when read in the context of the relevant clauses of Article 22, make it clear that they are intended to satisfy the constitutional requirements and provide for enforcement of the right conferred on the detenu to represent against his detention order. Viewed in this perspective it cannot be said that the power conferred by Section 11 of the Act has no relation whatsoever with the constitutional obligation cast by Article 22(5).”
6. On following the aforesaid order, we are of the view that the further detention of the petitioner becomes illegal. There does not appear to be application of mind so far as the State Government is concerned. The State Government was expected to independently apply its mind to the representation and thereafter pass an order. Since the very same authority acts as the Detaining Authority as well as the officer empowered by the State, we are of the view that the law stands infringed, so far as this action is concerned. We would once again like to reiterate that each one of the representations would have to be independently considered by each of the authorities. Even though the concerned officer may act as a Detaining Authority as well as the officer designated by the State, he cannot consider two representations of the petitioner. Independent officers would have to consider the same.
7. For all the aforesaid reasons, we proceed to pass the following:
Order The petition is allowed.
Further detention of the detenue Sri. Ahamed Samsheer alias Chechu is held to be illegal. He shall be released from the custody, forthwith, if he is not required in any other case.
Registry to communicate the operative portion of this order to the jail authorities at Central Prison, Bengaluru.
Sd/- JUDGE Sd/- JUDGE RD