Leelavathi vs Commissioner Of Police

The petitioner is the mother of the Detenu. Her case is that the Detenu has been detained in pursuance of the order of detention alleging that the

Detenu is a ‘Goonda’ as defined under Clause (g) of Section 2 of the Karnataka Prevention of Dangerous Activities of Boot Leggers, Drug

Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum Grabbers, Video or Audio Pirates Act, 1985 (hereinafter referred to as ‘the

Act’).

The order of detention was passed on 25.07.2018. The same was placed before the Advisory Board and thereafter, the State Government

confirmed the detention. Questioning the order of detention, the Detenu filed Writ Petition Habeas Corpus No.96 of 2018 seeking to quash the order

of detention and for his release. By the order dated 18.12.2018, the learned Division Bench came to the conclusion that the petition would not survive

for consideration on merits and hence it was dismissed. It was noted therein that the representation made by the Detenu was belated in the sense that

it was submitted after the order of confirmation was made. Therefore, the Division Bench was of the view that the representation made by the

Detenu subsequent to the order of confirmation has to be considered by the State Government in terms of Section 14 of the Act. Therefore, liberty

was granted to the Detenu to file any additional statement in support of his earlier statement which was already made. Thereafter, a representation

was made by the Detenu on 05.02.2019. The representation was not considered expeditiously. Therefore, the instant petition was filed to declare that

the detention of the Detenu Sri.Yuvaraja @ Papa, in terms of the earlier order passed by the Detaining Authority and affirmed by the State

Government as illegal and void-ab-initio.

Notices were issued to the respondents. The respondents-State have filed the statement of objections and have also enclosed the copy of the order

dated 03.04.2019 passed under Section 14 of the Act, rejecting the representation of the Detenu.

4.(a) It is primarily contended by the learned Counsel for the petitioner, that the representation of the Detenu having been considered only on

03.04.2019, there is almost a delay of 57 days in considering the representation. Hence, it runs fatal to the State. That the delay in considering the

representation affects the rights of the Detenu under Article 22(5) of the Constitution of India.

(b) In support of his case, he places reliance on the judgment of the Hon’ble Supreme Court in the case of JAYANARAYAN SUKUL Vs.

STATE OF WEST BENGAL reported in 1970(1) Supreme Court Cases 21, 9with reference to paras 19 and 20. Therein, the Hon’ble Supreme

Court held, that even though there is no definite time frame within which the representation of the Detenu should be dealt with, the same should be

considered as expeditiously as possible. That the failure in considering the representation within a reasonable period of time and failure of the State to

explain the long delay, would have to be considered as a failure of the State in discharging his constitutional obligation, by inactivity and lack of

independent judgment.

(c) Reliance is also placed on the judgment of the Hon’ble Supreme Court in the case of PABITRA N.RANA Vs. UNION OF INDIA AND

OTHERS reported in 1980 Supreme Court Cases (Cri) 45,0 with reference to para 2. The same principle has been re-iterated in the said judgment. It

is held that the delay in considering the representation would run fatal and would enure to the benefit of the Detenu. That there was no justification for

the delay in taking a decision on the merits of the representation. In fact, the delay that occasioned therein was from October 16, 1979 to November 2,

1979, namely, a period of about 16 days, wherein the representation was rejected. Therefore, it was held that since the said delay in considering the

representation of the Detenu has not been satisfactorily explained, the order of detention becomes void.

(d) Reliance is also placed on the judgment of the Division Bench of this Court in the case of SMT.KOKILA Vs. COMMISSIONER OF POLICE,

BENGALURU CITY, BENGALURU AND OTHERS reported in 2013 (3) KCCR 1786 (DB), wherein a similar view was taken, by relying on the

earlier judgment of the Hon’ble Supreme Court in the case of KUNDANBHAI DULBABHAI SHAIKH Vs. DISTRICT MAGISTRATE,

AHMEDABAD AND OTHERS reported in 1996 SCC (Cri) 4. 7T0herein there was a delay of 40 days in considering the representation and that

was considered fatal to the case of the State. It was held that the delay has remained unexplained. Therefore, the detention order would become bad

in the eye of law.

(e) It is pleaded that in the instant case, there is a delay of 57 days in considering the representation of the Detenu. The detention of the Detenu

becomes illegal as the State has failed to perform its duty to consider the representation at the earliest. In the absence of furnishing adequate reasons

for the delay, the detention is illegal.

5.(a) The same is disputed by the learned Additional Advocate General. He places reliance on the statement of objections filed by him on 30.05.2019,

wherein the facts leading to the detention have been stated. He has also filed an affidavit in the Court today, sworn to by the Under Secretary,

Department of Home (Law and Order), Vidhana Soudha, Bengaluru, with an attempt to show cause, with regard to the delay in considering the

representation. It is stated therein that subsequent to the direction of this Court in Writ Petition Habeas Corpus No.96 of 2018, a representation dated

25.01.2019 was submitted before the Senior Superintendent, Central Prison, Bengaluru, on 05.02.2019. Thereafter, the office of the prisons has sent

the representation to the Government on 08.02.2019, which was received by the Tappal Section on 12.02.2019. It was re-directed to the Department

of Law and Parliamentary Affairs on 23.02.2019. A report was prepared on 29.03.2019 and forwarded to the Additional Chief Secretary on

01.04.2019. Thereafter, an endorsement was issued on 03.04.2019 which was served on the Detenu on the same day, rejecting his representation

made under Section 14 of the Act. Therefore, it is contended that there is no delay in considering the representation of the Detenu. It is stated that, the

State has not wasted any time in considering the representation of the Detenu.

(b) It is, however, pleaded that so far as consideration of the representation of the Detenu post-confirmation is concerned, the same would have to be

considered on a different parameter. The legal right of the Detenu before the confirmation order is passed, would not remain the same, after the

detention has been confirmed. Once the detention is confirmed, nothing further could be done. The representation made under Section 14 of the Act,

is required to be considered in the manner known to law. The question of re-opening the detention order and finding an error in it is beyond the scope

of the State under Section 14 of the Act. It is nothing but a mere Supervisory jurisdiction which the State exercises. Therefore, it cannot be said that

the delay would run fatal to the State.

(c) In support of his case, reliance is placed on the judgment of the Hon’ble Supreme Court in the case of A.C.RAZIA Vs. GOVT. OF

KERALA AND OTHERS reported in (2004) 2 Supreme Court Cases 6,2 w1ith reference to para 21. Therein the Hon’ble Supreme Court was

concerned with the provisions of COFEPOSA Act. Section 11 of the Act therein is similar to Section 14 of the Goonda Act. The consideration before

the Hon’ble Supreme Court was whether there could be any due application of mind on the part of the Central Government in proper disposal of

the representation in the absence of English translated copy of the document relied upon in the detention order. In answering the said question, the

Constitutional Bench went into the meaning of Section 11 of the COFEPOSA Act. Para

21 of the said judgment reads as under:

“Thus, the principle is well settled that the Government in exercise of the power under Section 11 does not consider the question of sufficiency or

adequacy of the grounds but it would only see whether the detention order is within the parameters of the power conferred under the statute. In other

words, it will not review the case as if it is an original or appellate authority. That is why the power under Section 11 has been described as

supervisory in nature as pointed out by G.P.Mathur, J. taking support from the observations in Sabir Ahmed v. Union of India and Sat Pal v. State of

Punjab. Obviously this supervisory power cannot be equated to the subjective satisfaction of the detaining authority or the power of the Advisory

Board to examine whether there is sufficient material for detention. The range of consideration by the Advisory Board is thus wider.â€​

Therefore, it is contented that no fault would lie with the State in rejecting the representation of the Detenu under Section 14 of the Act. That so far as

the delay is concerned, the same has been adequately explained. Hence, there is no delay in considering the representation.

Heard learned Counsels.

The duty cast on the State to consider the representation of the Detenu is not disputed. It has to be exercised at the earliest point of time. The delay

in considering the representation of the Detenu, would constitute a ground to nullify the order of detention.

The well settled law is that, whenever a representation is made, the same shall be considered at the earliest point of time. What is the ‘earliest

point of time’ is necessarily subjective. Assuming that there is a delay, the State is entitled to explain the delay. But however, the principle that the

representation has to be considered at the earliest point of time is not disputed. If there is a delay in considering the representation then the entire

detention order would have to be set aside on that ground alone.

However, the question for consideration is:

“Whether the representation made by the Detenu in terms of Section 14 of the Act, subsequent to the order of confirmation would be tested on the

same principle of considering a representation, prior to the confirmation order?â€​

The contention of the State is that once the order of detention has been made, it is only a supervisory jurisdiction that can be exercised under

Section 14 of the Act. Therefore, the question of the authority considering the detention order on merits are not within its scope as defined under

Section 14 of the Act. Therefore, it cannot be said that the supervisory power to be exercised by the State would have to be done at the earliest point

of time or else its failure would render the detention order being faulty. Since the detention order as such is not the subject matter for consideration

under Section 14 of the Act, the delay in considering the same cannot enure to the benefit of the Detenu.

However, we are of the view that the right of the Detenu to ensure that the representation has to be considered at the earliest point of time would

subsist throughout his detention. The right given to the Detenu in making a representation against the order of detention cannot be considered

otherwise, only because a confirmatory order is passed. Only because he is detained by the order of confirmation, does not mean that his opportunity

to make a representation has ceased. What is undisputed by the State is the right of the Detenu to make a representation under Section 14 of the Act.

Therefore, once that position remains, the act of the State in considering the representation is fully covered by the judgment of the Hon’ble

Supreme Court that the representation of the Detenu would have to be considered at the earliest point of time.

So far as the facts involved in the present case is concerned, the State has taken 57 days to consider the representation. The judgment of this

Court in Kokila’s case involved a delay of 40 days. The judgment of the Hon’ble Supreme Court in Pabitra N.Rana’s case involved a

delay of about two weeks.

The right to file a representation to the State being a constitutional right of the Detenu, would imply that such a right has to be exercised within an

appropriate time and the duty of the State is to dispose off the representation at the earliest point of time, if not, the constitutional right of the Detenu

would stand affected. We find no reason to dilute such a constitutional right post-confirmation. We are of the considered view that even if the

confirmatory order has been passed, the duty of the State to consider the representation at the earliest point of time cannot be diluted. The State

cannot be permitted to sit on the representation of the Detenu. The principles that govern the consideration of the representation pre-confirmation,

would stand equally applicable to the representation made subsequent to the order of confirmation.

The right of the Detenu is a constitutional right. It cannot be diluted. As long as the Detenu continues to be under detention, his right for the

earliest consideration of his representation does not in any circumstance gets diluted by the confirmation order.

Therefore, the question for consideration is answered by holding that the principles that govern the consideration of a representation prior to the

confirmation order are equally applicable to the representation made by the Detenu in terms of Section 14 of the Act, subsequent to the order of

confirmation.

Under these circumstances and in view of the aforesaid reasons and following the judgments of the Hon’ble Supreme Court, we are of the

view that the delay in considering the representation of the Detenu would be fatal to the case of the respondents-State. Therefore, the detention

becomes illegal.

Hence, for the aforesaid reasons, the Writ Petition Habeas Corpus No.43 of 2019 is allowed.

The Detenu, namely, Sri.Yuvaraja @ Papa son of Sri.Thyagaraj 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.