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Judgment
K.S. Mudagal, J
This petition is filed seeking quashing of Annexure-A dated 27.12.2024 the grounds of detention order passed by respondent No.1 under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (‘the Act’ for short) and Annexure-B the order dated 20.03.2025 passed by respondent No.2 under Section 9(f) of the Act.
The petitioner was/is charge sheeted, tried/being tried in all 12 cases for the offences punishable under NDPS Act, the particulars of which are as follows:
Sl. No.
Name of Police
Station
Crime No.
Date of
offence
Sections
Invoked
Case Status
1
Chamarajapete
307/2015
21.10.2015
20(b) NDPS Act
Acquitted in C.C. No.219/2017 on 12.09.2019
2
Chamarajapete
141/2016
18.07.2016
20(b) NDPS Act
Pending trial in C.C.No.8835/2017 (Bail granted on 03.10.2016)
3
Chamarajapete
149/2018
11.07.2018
20(b) NDPS Act
Acquitted on C.C. No.13407/2018 on 08.12.2023
4
Kempegowda Nagara
80/2020
06.10.2020
20(b) NDPS Act
Pending trial in C.C. No.1252/2021
(Bail granted on 07.11.2020)
5
Chamarajapete
102/2020
05.09.2020
20(b) NDPS Act
Pending trial in Spl. C.C. No.905/2022
(Bail granted on 07.11.2020)
6
Byatarayanapura
317/2021
29.11.2021
20(b) NDPS Act
Pending trial in Spl.C.C. No.591/2023
(Bail granted on 07.06.2023)
7
Annapoorneshwari Nagara
13/2022
11.02.2022
20(b) NDPS Act
Pending trial in Spl. C.C. No.1984/2022 (Anticipatory Bail granted in Crl.P.No.1587/ 2022 on 23.02.2022)
8
Kempegowda Nagara
17/2022
04.02.2022
20(b)(ii)(B), 27A NDPS Act
Pending trial in C.C. No.930/2022 (Bail granted on 07.06.2022)
9
Annapoorneshwari Nagara
58/2022
26.02.2022
20(b) NDPS Act
Pending trial in C.C. No.2222/2022
(Bail granted on 07.06.2022)
10
Chamarajapete
104/2023
22.06.2023
20(b) NDPS Act
Pending trial in Spl.C.C. No.71/2024
(Bail granted in Crl.Misc.No.6933/202 3 on 01.08.2023)
11
Byatarayanapura
156/2023
07.06.2023
20(b) NDPS Act
Pending trial in Spl.C.C. No.2374/2023
(Bail granted in Crl.P.No.6259/2023 on 13.07.2023)
12
Chamarajapete
30/2024
17.02.2024
20(b) NDPS Act
Pending trial in C.C. No.21573/2024
(Bail granted on 24.02.2024)
Police Inspector of Chamarajpet Police Station through the Assistant Commissioner of Police, Chickpete Sub Division and Deputy Commissioner of Police, West Division, Bengaluru recommended seeking detention of the petitioner under the Act submitted the reports along with other records.
Based on that, respondent No.1 acting under Section 3(1) of the Act passed the detention order on the ground that since 2015 the petitioner is indulging in illicit trafficking of narcotic and psychotropic substances, procuring the same from Tamil Nadu and Andhra Pradesh, he has high potentiality and propensity to indulge into such activities in an organized manner conspiring with his associates, his activities are prejudicial to the maintenance of the public order and welfare of the youth and students. It is further stated that violating the bail orders, he is indulging in illicit trafficking of ganja and narcotics, the actions taken against him under the relevant general laws are found inadequate to deter him, therefore to prevent him from such activities, it is necessary to detain him under Section 3(1) of the Act. Thus passed the detention order based on Annexure-A.
On passing such order, respondent No.2 referred the matter to the Advisory Board under Section 9 (b) of the Act seeking its opinion/report as required under Article 22(4)(a) of the Constitution of India. The petitioner made his representation before the Advisory Board. On receipt of the report of the Advisory Board, respondent No.2 confirming the order of detention, passed order Annexure-B under Section 9(f) of the Act and directed that he be detained for a period of one year from the date of detention i.e. 30.12.2024.
Though in the writ petition, several grounds are urged, Sri Rohan Veeranna Tigadi, learned Counsel for the petitioner restricted his challenge to Annexures-A & B to the following grounds:
(A) Respondent No.2 while passing order Annexure-B has not considered his representation dated 08.02.2025 independent of the opinion of the Advisory Board which is violative of Article 22(5) of the Constitution.
(B) Annexure-B/confirmation order does not apprise the petitioner/detenue of his right to make representation to the Central Government against such order, thereby the order is vitiated.
In support of his submissions, learned counsel for the petitioner relied on the following judgments:
(i) Gracy v. State of Kerala (1991)2 SCC 1
(ii) Jayamma v. Commissioner of Bangaluru ILR 2019 Kar 1543
(iii) Kamleshkumar Ishwardas Patel v. Union of India (1995)4 SCC 51
Per contra, Sri Thejesh P, learned HCGP submits that while passing order/Annexure-B, respondent No.2 has considered all materials including the representation of the petitioner. He further submits that the guidelines issued do not curtail the provisions of the statute, therefore, the judgment of the Hon’ble Supreme Court and this Court relied upon by the petitioner’s counsel are not applicable.
In support of his submissions, learned HCGP for the respondents relied on the following judgments:
(i) Union of India vs. Dimple Happy Dhakad (2019)20 SCC 609
(ii) Mrs.Khatejutal Najma v. State of Karnataka & ors WPHC No.110/2021 DD 23.12.2021 (DB)
(iii) Roopa v State of Karnataka WPHC NO.37/2025 D.D.26.06.2025 (DB)
In the light of submissions of both side, the questions that arise for consideration are:
i) Whether the order/Annexure-B is vitiated for non-consideration of representation of the petitioner?
ii) Whether detention is vitiated for not apprising the petitioner of his right to make representation to the Central Government?
Reg. Consideration of representation of the petitioner while passing order/Annexure-B:
Admittedly, first respondent passed the detention order exercising the power under Section 3(1) of the Act on the ground that the petitioner is habitually committing the offences under the NDPS Act which are detrimental to the public order. Annexure-B/confirmation order is passed by respondent No.2 exercising the power under Section 9(f) of the Act. Annexure-A is the grounds of detention order passed by the first respondent and not the order itself. There is also no dispute that said detention order was referred to Advisory Board as required under Section 9(b) of the Act and the Board in its report opined that detention order was justifiable.
The grievance of the petitioner was only regarding the validity of Annexure-B/confirmation order on the ground of non-consideration of his representation. The power and duties of respondent No.2 while passing the confirmation order are carved out in Section 9(f) of the Act as follows:
“9. Advisory Boards.-For the purposes of sub-clause (a) of clause (4) and sub-clause (c) of clause (7) of article 22 of the Constitution,-
(a) XXX
(b) XXX
(c) XXX
(d) XXX
(e) XXX
(f) in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith.”
Reading of the above provision shows that the power of the Government to confirm the detention order is independent of the opinion of the Advisory Board. As the word “may” is employed in Section 9(f) of the Act, even if the Advisory Board found sufficient cause for the detention, the Government has power to take a different view. Only in case if the Advisory Board finds no sufficient cause for detention, the Government is bound to revoke such order as the word “shall” is employed.
Hon’ble Supreme Court in paras 6, 8 and 9 of the judgment in Gracy’s case referred to supra, while concluding that the right of the detenue to have his representation considered is independent of consideration of the same by the Advisory Board, has held as follows:
"6. It is thus clear that the obligation of the government to consider the representation is different and in addition to the obligation of the Board to consider it at the time of hearing the reference before giving its opinion to the government. Consideration of the representation by the government has to be uninfluenced by the view of the Advisory Board. In short, the detenu's right to have the representation considered by the government under Article 22(5) is independent of the consideration of the detenu's case and his representation by the Advisory Board. This position in law is also not disputed before us.
XXX
It is undisputed that if there be only one representation by the detenu addressed to the detaining authority, the obligation arises under Article 22(5) of its consideration by the detaining authority independent of the opinion of the Advisory Board in addition to its consideration by the Advisory Board while giving its opinion. In other words, one representation of the detenu addressed only to the Central Government and not also to the Advisory Board does not dispense with the requirement of its consideration also by the Advisory Board. The question, therefore, is: Whether one of the requirements of consideration by government is dispensed with when the detenu's representation instead of being addressed to the government or also to the government is addressed only to the Advisory Board and submitted to the Advisory Board instead of the government? On principle, we find it difficult to uphold the learned Solicitor General's contention which would reduce the duty of the detaining authority from one of substance to mere form. The nature of duty imposed on the detaining authority under Article 22(5) in the context of the extraordinary power of preventive detention is sufficient to indicate that strict compliance is necessary to justify interference with personal liberty. It is more so since the liberty involved is of a person in detention and not of a free agent. Article 22(5) casts an important duty on the detaining authority to communicate the grounds of detention to the detenu at the earliest to afford him the earliest opportunity of making a representation against the detention order which implies the duty to consider and decide the representation when made, as soon as possible. Article 22(5) speaks of the detenu's ‘representation against the order’, and imposes the obligation on the detaining authority. Thus, any representation of the detenu against the order of his detention has to be considered and decided by the detaining authority, the requirement of its separate consideration by the Advisory Board being an additional requirement implied by reading together clauses (4) and (5) of Article 22, even though express mention in Article 22(5) is only of the detaining authority. Moreover, the order of detention is by the detaining authority and so also the order of its revocation if the representation is accepted, the Advisory Board's role being merely advisory in nature without the power to make any order itself. It is not as if there are two separate and distinct provisions for representation to two different authorities viz. the detaining authority and the Advisory Board, both having independent power to act on its own.
It being settled that the aforesaid dual obligation of consideration of the detenu's representation by the Advisory Board and independently by the detaining authority flows from Article 22(5) when only one representation is made addressed to the detaining authority, there is no reason to hold that the detaining authority is relieved of this obligation merely because the representation is addressed to the Advisory Board instead of the detaining authority and submitted to the Advisory Board during pendency of the reference before it. It is difficult to spell out such an inference from the contents of Article 22(5) in support of the contention of the learned Solicitor General. 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 preventive detention.”
(Emphasis supplied)
From the above judgment, it becomes clear that irrespective of Advisory Board considering the representation of the detenue, respondent No.2 while passing the confirmation order/Annexure-B was bound to independently consider the same. Further the coordinate bench of this Court in para 49 of the judgment in Jayamma’s case referred to supra has laid down the guidelines for the Government/detaining authorities in preventive detention proceedings. Para 49(7) of the guidelines reads as follows:
“49(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.”
(Emphasis supplied)
In Annexure-B absolutely there is no reference to the representation of the petitioner leave alone the independent consideration of same. To verify if respondent No.2 has considered the same in the proceedings while passing the order, the records of the proceedings were secured. Those proceedings show that based on the Advisory Board’s report, draft of Annexure-B was placed before the competent authority and that was approved as it is. There is not even a whisper at least in the proceedings’ sheet that respondent No.2 perused or examined the representation. Thus there is no independent consideration of the representation as required under Section 9(f) of the Act and larger bench judgment in Gracy’s case referred to supra. Hence the order is violative of Article 22(5) of the Constitution of India and contrary to the law laid down in the aforesaid judgment of the Hon’ble Supreme Court and this Court.
Perusal of the judgment in Dimple Happy Dhakad’s case referred to supra shows that the issue raised in the said case was regarding noncompliance of the administrative guidelines, therefore it was held that non-compliance of such order does not amount to violation of the provisions of a statute and that does not curtail the provisions of any statute. Since Section 9(f) of the Act requires the Government to consider the representation independently, the judgment in Dimple’s case is not applicable.
Reading of para 10 of the judgment of the coordinate Bench of this Court in Mrs.Khatejutal Najma’s case referred to supra shows that, in that case it was held that the representation of the detenue were considered by the State Government. But, in this case, as noticed above, the representation of the detenue was not considered. Hence, the said judgment does not advance the case of the respondents. Further in para 8 of the said judgment, para 20 of the judgment of the Hon’ble Supreme Court in Jayanarayan Sukul vs State West Bengal [(1970)1 SCC 219] is extracted which reads as follows:
“8. We have considered the submissions made by learned counsel for the parties and have perused the record. A constitution bench of the Supreme Court 'JAYANARAYAN SUKUL VS. STATE OF WEST BENGAL', (1970) 1 SCC 219 laid down four principles, governing the right of consideration of representation of the detenue in para 20 of the judgment, which reads as under:
First, the appropriate authority is bound to give an opportunity to the detenue to make a representation and to consider the representation of the detenue as early as possible. Secondly, the consideration of the representation of the detenue by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenue 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 detenue's representation to the Advisory Board. If the appropriate Government will release the detenue the government will not send the matter to the Advisory Board. If, however, the government will not release the detenue the government will send the case along with the detenue's representation to the Advisory Board. If thereafter, the Advisory Board will express an opinion in favour of the release of the detenue the government will release the detenue. If the Advisory Board will express any opinion against the release of the detenue the government may still exercise the power to release the detenue.”
(Emphasis supplied)
Thus it becomes clear that respondent No.2 is bound to consider the representation of the detenue entirely independent of the consideration of the same by the Advisory Board. On that count also, the said judgment is of no assistance to the respondents. In Roopa’s case referred to supra relied on by learned HCGP, this Court found that statutory requirement was complied. Therefore, the said judgment cannot be justifiably applied to the facts of the present case. Hence the contention of the petitioner that his representation was not independently considered by respondent No.2, thereby Annexure-B is vitiated, sustains.
Reg. Annexure-B not apprising the petitioner of his right to make representation.
It is the contention of the petitioner that the detaining authority should have apprised him to make representation to the Central Government seeking revocation of the same under Section 12 of the Act.
There is no dispute that Section 3(2) of the Act requires the State Government to report to the Central Government about the detention order within 10 days of passing of such order. Section 12(1)(b) of the Act confers powers on the Central Government to revoke or modify the order passed by a State Government. Article 22(5) of the Constitution of India requires the authority making the detention order to communicate the detenue the grounds of order and afford him earliest opportunity of making representation against the order.
No doubt Article 22(5) of the Constitution or Section 9(f) or 12(1)(a) of the Act do not expressly speak about the right of the detenue of being apprised of his right of making representation to the Central Government in the matter. If there was no need to reconsider the order passed by the State Government or the authority, Section 12 of the Act empowering the Central Government would not have been carved out in the Act by the legislature. The detenue is the main affected person in the matter. Only if the detenue is apprised by State Government making of such a report to the Central Government, he gets an opportunity seeking revocation of the same under Section 12(1)(b) of the Act. Otherwise his fundamental right under Article 22(5) of the Constitution to make representation gets affected. This view of ours gets support from para 14 of the judgment of the Hon’ble Supreme Court in Kamlesh Kumar’s case referred to supra which reads as follows:
“Article 22(5) must, therefore be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority i.e., the authority that has made the order of detention or the order for continuance of such detention, which is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to the revoke the order for detention and thereby give relief to the person detained. The right to make representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation.”
(Emphasis supplied)
For the aforesaid reasons the order Annexure-B stands vitiated on both the grounds. Hence liable to be quashed. Annexure-A is only the grounds of detention and not even detention order referred to in Annexure-B passed by the first respondent under Section 3(1) of the Act. The petitioner ought to have sought quashing of the said order which he has failed to do for the reasons best known to him. On quashing of Annexure-B, the same loses its existence, thus stands short of the requirement of Section 3(2) of the Act submitting the same to the Central Government within 10 days. Thereby the detention order dated 27.12.2024 referred to in Annexure-B loses its existence. Hence Annexure-A becomes inconsequential. The allegations against the petitioner in Annexure-B about the criminal cases pending against him are matter of trial in those cases. Hence the following:
ORDER
i) The order Annexure-B dated 20.03.2025 passed by respondent No.2 and consequentially the detention order dated 27.12.2024 in No.04/BCP/PIT-NDPS/DTN/2024 passed by respondent No.1 are hereby quashed.
ii) Petition is disposed of accordingly.
iii) Office is directed to communicate the operative portion of the order to respondent No.3. Original records of the proceedings are returned to learned HCGP.