Krishna Das Saroh vs Government Of Karnataka

The petitioner is the wife of the Detenu Sri.Rajnish Kumar Saroh. That the petitioner is interested in the life, welfare and personal liberty of the

Detenu. That the Additional Chief Secretary, Government of Karnataka, Home Department, Bengaluru, passed an order of detention bearing No.HD

3 SCF 2019, dated 21.02.2019, under Section 3(1)(ii) of the Conservation of Foreigh Exchange and Prevention of Smuggling Activities Act, 1974. The

grounds and the order of detention was served on the Detenu on 05.03.2019. He was also furnished with the relevant documents. It was also

communicated to him that he is entitled to make a representation to the detaining authority against the detention order through the Senior

Superintendent of Police, Central Prison, Bengaluru. He accordingly submitted his representation on 28.03.2019. The representation was rejected by

the order dated 04.04.2019 vide Annexure-E to the writ petition. At that stage, the instant writ petition was filed seeking to quash the order of

detention.

Notices were ordered to the State. In the interregnum, the Advisory Board submitted its report dated 06.05.2019. Thereafter, the State vide order

dated 08.05.2019 passed the order confirming the order of detention.

3.(a) Sri.Kiran S.Javali, learned Counsel appearing for the petitioner, contends that the grounds of detention as well as the order of detention are

illegal. That no grounds are made out to sustain the order of detention. He primarily pleads on the question of the representation being not considered

by the appropriate authority. He submits that in terms of the grounds of detention furnished to him, he was entitled to make a representation to the

detaining authority against the detention order. The detention authority was the Additional Chief Secretary, Government of Karnataka, Home

Department, Bengaluru. The representation was made by the Detenu, to the said officer, namely, the Additional Chief Secretary to the Government of

Karnataka. However, the representation has been rejected by the Under Secretary to Government, Home Department (Police Services-B), in terms

of the order dated 04.04.2019 vide Annexure-E. Therefore, he pleads that the detaining authority has not considered the representation furnished to

him. There has been non application of mind and the rejection is not by the designated authority.

(b) In support of his case, he relies on the judgment of the Hon’ble Supreme Court in the case of SANTOSH ANAND Vs. UNION OF INDIA

AND OTHERS reported in 1981 SCC (Cri) 45, 6wherein the Hon’ble Supreme Court held, that, since the representation was not considered by

the authority to whom the representation was made, the constitutional safeguard under Article 22(5) of the Constitution of India, cannot be said to

have been strictly observed or complied with. Consequently, the detention of the Detenu was held to be illegal and the order of detention was quashed.

(c) Reliance is also placed on the order of the Hon’ble Supreme Court in the case of KAMLESHKUMAR ISHWARDAS PATEL Vs. UNION

OF INDIA AND OTHERS reported in 1995 SCC (Cri) 643, with reference to para 38, which reads as under:

“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 officer 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.â€​

4.(a) Sri.Sandesh J.Chouta, learned Additional Advocate General appearing for the respondents disputes the said contention. He places reliance on the

statement of objections filed. He contends that there has been application of mind and the rejection of the representation of the Detenu is in

accordance with law. He also places the records for consideration.

(b) Reliance was placed on the judgment of the Hon’ble Supreme Court in the case of UNION OF INDIA AND OTHERS Vs. SALEENA

reported in (2016) 3 SCC 437. He contends that the question of application of mind and the order that has been communicated, should suffice the

requirement of law. In the instant case, there has been application of mind by the Additional Chief Secretary is concerned. Therefore, only because

the order is communicated in the name of the Under Secretary, would not vitiate the order of detention.

Heard learned Counsels.

So far as the judgment relied on by the learned Counsel for the petitioner is concerned, the law is well settled. The representation made to the

designated authority would necessarily have to be considered by that authority alone. The consideration by any other authority would vitiate the order

of detention. However, the learned Counsel for the respondents relies on the judgment of the Hon’ble Supreme Court in the case of UNION OF

INDIA AND OTHERS Vs. SALEENA reported in (2016) 3 SCC 437. We have considered the judgment in extenso. A similar question arose for

consideration in the said judgment. The Hon’ble High Court of Kerala, had set aside the order of detention on the ground that the constitutional

requirement was not satisfied, since the authority who was subordinate to the competent authority had rejected the representation. This order was

challenged before the Hon’ble Supreme Court. In considering the order of the High Court, the records pertaining to the case were looked into.

Therein the competent authority was the Special Secretary-cum-Director General, Central Economic Intelligence Bureau, Ministry of Finance,

Department of Revenue. However, the communication was made by the Under Secretary, Government of India. However, on examining the records

the Hon’ble Supreme Court found, that the competent authority had stated, as narrated in para 29 of the order, which reads as under:

“I have gone through the representation. I do not find sufficient ground for exercising powers under Section 11 of the COFEPOSA Act. The

representation is rejected.â€​

This order which was passed by the competent authority was communicated by the Under Secretary. Therefore, the Hon’ble Supreme Court held

that there has been application of mind so far as the competent authority is concerned. It was detailed in the judgment. There was no need to

elaborate the reasons by the competent authority to justify his application of mind. The order itself would reflect the application of mind by the

competent authority. Therefore, the order of detention was upheld.

However, factually, the same cannot be applied to the facts of the instant case. We have examined the records in detail. There is no order passed

by the Additional Chief Secretary that would narrate his application of mind. The communication of the rejection of the representation of the petitioner,

is by the Under Secretary to the Government. Admittedly, he is not the competent authority. The competent authority is the Additional Chief

Secretary. It was he alone who should have applied his mind to the representation made by the petitioner. The records do not indicate any order being

passed by the Additional Chief Secretary to that extent. However, in the aforesaid judgment of the Hon’ble Supreme Court, the competent

authority, however short the order may be, had applied its mind and rejected the representation. In the absence of non application of mind by the

competent authority herein, the order of detention cannot be sustained.

Therefore, the law on the issue is well established. It is the competent authority alone that has to consider the representation of the Detenu by

applying its mind. If the rejection of the representation is by any other authority, other than the competent authority, such a rejection of the

representation cannot be considered as a valid rejection in the eye of law. In the absence of any rejection order by the concerned competent authority,

it has to be held that there is non-consideration of the representation.

Under these circumstances, we do not find it necessary to consider the other grounds urged by the learned counsel for the petitioner. Both learned

counsels also submit that in view of the aforesaid observations, it would not be necessary to consider the other contentions.

For the aforesaid reasons, Writ Petition Habeas Corpus No.49 of 2019 is allowed. The order of detention dated 21.02.2019 bearing No.HD 3 SCF

2019 passed by the Additional Chief Secretary to Government, Home Department, Bengaluru, is hereby quashed.

The Detenu, namely, Sri.Rajnish Kumar Saroh, son of Sri.Umed Singh Saroh, is directed to be released from custody forthwith, if he is not required in

any other case/s.

Registry is directed to communicate the operative portion of this order to the Jail Authorities, Central Prisons, Parapanna Agrahara, Bengaluru,

forthwith, for necessary action.

Pending interlocutory application No.2 of 2019 stands rejected.