Mahammed Riyaz vs State Of Karnataka & Others

Vishwajith Shetty, J

The petitioner who is the brother of the detenue Mahammed Riyaz S/o P.Mayyadi (hereinafter referred to as 'the detenue'), has preferred this writ petition seeking for the following reliefs:

a) A Writ in the nature of Habeas Corpus by quashing of the order of detention dated 10.02.2022 passed by respondent No.2 in No.MAG/02/MGC/2022, which is produced at Annexure-A and Anenxure-A1.

b) A Writ in the nature of Habeas Corpus by quashing the approval order dated 17.02.2022 passed by the respondent No.1 in H.D. 53 SST 2022, Bengaluru which is produced at Annexure-C in the interest of jistice.

c) A Writ in the nature of Habeas Corpus by quashing the confirmation order dated 29.03.2022 passed by the respondent No.1 in H.D. 53 SST 2022,Bengaluru which is produced at Annexure-F in the interest of justice..

d) A Writ in the nature of Habeas Corpus directing the respondents to set at the detenue Mohammed Nawaz @ Pinky Nawaz @ Nawaz at liberty by releasing him from prison forthwith, in the interest of justice.

e) Any other order or direction may be issued as consequential orders, in the interest of justice."

Heard the learned Counsel for the petitioner and also the learned State Public Prosecutor on behalf of the respondents.

Brief facts of the case as revealed from the records that may be necessary for the purpose of disposal of this petition are, respondent no.2 has passed an order of detention dated 10.02.2022 under Section 3(1) & (2) of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum-Grabbers and Video or Audio Pirates Act, 1985 (for short, 'the Act') against the detenue on the ground that the detenue who is involved in number of criminal cases and who is released on bail, has continued his anti-social activities which has caused disturbance of public order, and therefore, to control his activities and to prevent the detenue from acting in any manner prejudicial to the maintenance of public order, it has become necessary to pass the detention order against him. The said order of detention was followed by a corrigendum dated 15.02.2022 and the detention of the detenue was shifted to Bengaluru Central Jail from Mangaluru District Jail. Thereafter, the State Government, on 17.02.2022 approved the detention order passed by respondent no.2 and the copy of the approval order was served on the detenue on 18.02.2022 along with the paper book which contained the documents relied upon by the competent authority while passing the order of detention.

In compliance of Section 10 of the Act, respondent no.1 had placed the order and the grounds of detention before the Advisory Board on 23.02.2022. The detenue had submitted a representation against the order of detention on 07.03.2022 to the Detaining Authority, State Government and the Advisory Board through the Chief Superintendent, Central Jail, Bengaluru. The Detaining Authority has rejected the said representation on 15.03.2022. The Advisory Board after hearing the detenue and after referring to the considering the representation of the detenue, has submitted its report to the State Government on 23.03.2022 opining that there was sufficient cause for the detention of the detenue and on receipt of such a report, the State Government in exercise of its power under Section 12 of the Act has passed a confirmation order on 29.03.2022. The petitioner has, thereafter, filed the present writ petition on 06.09.2022.

During the pendency of the writ petition, the State Government has considered the detenue's representation and rejected the same by order dated 20.09.2022. The respondents have filed their statement of objections on 05.11.2022 denying all the allegations made in the petition and contended that the impugned order of detention was passed in accordance with law and the requirements of the provisions of the Act has been complied by the respondents. It is also stated that the petitioner is involved in as many as 15 criminal cases which include the offences punishable under Sections 307, 302 IPC & etc., and after being released on bail in the aforesaid cases, he has continued his illegal activities, and accordingly, prayed to dismiss the petition.

Learned Counsel for the petitioner submits that the representation made by the detenue against the detention order was not considered by the State Government till the writ petition was filed and on that ground alone, the writ petition is required to be allowed. He submits that though the detenue was enlarged on bail in Crime No.143/2021, the order of bail passed by the jurisdictional court was not placed on record, and therefore, the same was not considered by the State Government at the time of passing the order of approval. He submits that the documents furnished to the detenue along with the approval order were not legible, and therefore, an effective representation could not be made by the detenue. He also submits that in compliance of Section 10 of the Act, the case of the detenue was not referred to the Advisory Board within 21 days. In support of his arguments, he has relied upon the judgments in the case of RUSHIKESH TANAJI BHOITE VS STATE OF MAHARASHTRA & OTHERS - (2012)2 SCC 72, SUSHANTA KUMAR BANIK VS STATE OF TRIPUTA & OTHERS - 2022 SCC OnLine 1333, SHANKARA GOUDA VS THE STATE OF KARNATAKA, REP. BY ITS UNDER SECRETARY (LAW & ORDER), HOME DEPARTMENT & OTHERS - ILR 2015 KAR 3312, WPHC.No.113/2015 (RIZWAN SHARIF VS THE STATE OF KARNATAKA & OTHERS) disposed of on 07.11.2015, MAKUKO CHUKWUKA MUOLOKWO VS THE STATE OF KARNATAKA, REP. BY ITS SECRETARY, HOME DEPARTMENT, BENGALURU & OTHERS - ILR 2020 KAR 5447.

Learned State Public Prosecutor argued in support of the detention order and submitted that the representation of the detenue has been considered by all the three authorities to whom it was forwarded. He submits that since the matter was seized before the Advisory Board, there has been a delay in considering the representation by the State Government and the same therefore cannot be of any consequence. He submits that a detention order can be passed even when the detenue is in custody, and therefore, the fact that the detenue was released on bail in Crime No.143/2021 is also of no consequence. He submits that the documents which were furnished to the detenue were all legible and in his representation he has not made any grievance in this regard and it is for the first time such a grievance is made before this Court, and therefore, there is no merit in the said contention urged on behalf of the detenue. He submits that the detention order and its grounds were placed before the Advisory Board within three weeks, and therefore, the requirement of Section 10 of the Act has been complied, and accordingly, he prays to dismiss the petition.

We have carefully considered the arguments addressed on behalf of the parties and also perused the material on record.

The petitioner has undisputedly forwarded his representation dated 07.03.2022 against the detention order through the Chief Superintendent, to the Detaining Authority, State Government and the Advisory Board. On receipt of such representation, the Detaining Authority after considering the same, has rejected it on 15.03.2022. The said representation dated 07.03.2022 was also placed before the Advisory Board and the same is evident from the report submitted by the Advisory Board. However, there is no order passed by the Advisory Board rejecting the representation made by the petitioner. The State Government for a considerable period of time has not taken any action on the representation filed by the detenue and the representation has been rejected by the State Government on 20.09.2022 which is after the filing of the present writ petition.

The Constitution Bench of the Hon'ble Supreme Court in the case of JAYANARAYAN SUKUL VS STATE OF WEST BENGAL - (1970)1 SCC 219, in a case where the representation was made by the detenue to the State Government on 23.06.1969 and the case of the detenue was placed before the Advisory Board on 01.07.1969 which submitted its report on 13.08.1969 stating that there was sufficient cause for detention, and thereafter, the representation was considered and rejected on 19.08.1969, in paragraph 18 has held as under:

"18. It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of the detenu as early as possible. The appropriate Government itself is bound to consider the representation as expeditiously as possible. The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities."

In the case of HARADHAN SAHA VS STATE OF WEST BENGAL - (1975)3 SCC 198, the Constitution Bench of the Hon'ble Supreme Court considered the distinction between the consideration of representation by the Government and by the Advisory Board, and in paragraphs 24 & 29, it has been observed as under:

“24. The representation of a detenu is to be considered. There is an obligation on the State to consider the representation. The Advisory Board has adequate power to examine the entire material. The Board can also call for more materials. The Board may call the detenu at his request. The constitution of the Board shows that it is to consist of Judges or persons qualified to be Judges of the High Court. The constitution of the Board observes the fundamental of fair play and principles of natural justice. It is not the requirement of principles of natural justice that there must be an oral hearing. Section 8 of the Act which casts an obligation on the State to consider the representation affords the detenue all the rights which are guaranteed by Article 22(5). The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law. The Board, on the other hand, considers whether in the light of the representation there is sufficient cause for detention.

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Principles of natural justice are an element in considering the reasonableness of a restriction where Article 19 is applicable. At the stage of consideration of representation by the State Government, the obligation of the State Government is such as Article 22(5) implies. Section 8 of the Act is in complete conformity with Article 22(5) because this section follows the provisions of the Constitution. If the representation of the detenu is received before the matter is referred to the Advisory Board, the detaining authority considers the representation. If a representation is made after the matter has been referred to the Advisory Board, the detaining authority will consider it before it will send representation to the Advisory Board.” (emphasis supplied)"

The Hon'ble Supreme Court in the case of ANKIT ASHOK JALAN VS UNION OF INDIA & OTHERS - (2020)16 SCC 127, while considering the similar question, at paragraph 17 has observed as under:

"17. In terms of these principles, the matter of consideration of representation in the context of reference to the Advisory Board, can be put in following four categories:

17.1. If the representation is received well before the reference is made to the Advisory Board and can be considered by the appropriate Government, the representation must be considered with expedition. Thereafter the representation along with the decision taken on the representation shall be forwarded to and must form part of the documents to be placed before the Advisory Board.

17.2. If the representation is received just before the reference is made to the Advisory Board and there is not sufficient time to decide the representation, in terms of law laid down in Jayanarayan Sukul and Haradhan Saha the representation must be decided first and thereafter the representation and the decision must be sent to the Advisory Board. This is premised on the principle that the consideration by the appropriate Government is completely independent and also that there ought not to be any delay in consideration of the representation.

17.3. If the representation is received after the reference is made but before the matter is decided by the Advisory Board, according to the principles laid down in Haradhan Saha, the representation must be decided. The decision as well as the representation must thereafter be immediately sent to the Advisory Board.

17.4. If the representation is received after the decision of the Advisory Board, the decisions are clear that in such cases there is no requirement to send the representation to the Advisory Board. The representation in such cases must be considered with expedition."

The Division Bench of this Court in WPHC.No.16/2020 (MR. KENNETH JIDEOFOR VS UNION OF INDIA & OTHERS) disposed of on 12.05.2020, has observed in paragraphs 19 & 20 as under:

"19. There is no explanation offered regarding the failure of the Sponsoring Authority to forward a copy representation to the Specially Empowered Officer. A copy of representation dated 15th April 2020 was sent by the Prison Authorities to the Joint Secretary (PITNDPS) by speed post. There is no explanation why the representation was not forwarded to the Specially Empowered Officer or to the Central Government by e-mail. It is alleged in the additional statement of objections that as and when Detaining Authority became aware of the representation dated 15th April 2020, the same was obtained by it from NCB, Bengaluru on 29th April 2020. Then the representation was hurriedly disposed of on the same day itself i.e., on 29th April 2020. There is absolutely no explanation forthcoming for not forwarding the representation dated 15th April 2020 to the Specially Empowered Officer who had passed the impugned order. Even the representation dated 17th April 2020 made by the petitioner to the Central Government through the Superintendent of Central Prison was not forwarded to the Central Government immediately but the same was forwarded on 20th April, 2020 and it is specifically stated that the same was decided on 30th April 2020. The delay from 20th of April to 30th April 2020 has not been explained at all.

Thus, the only conclusion which can be drawn is that there is an inordinate delay in considering the representations made by the petitioner to the Specially Empowered Officer as well as to the Central Government. In fact, there are no efforts made to explain the reasons for such inordinate delay. Hence, there is a complete violation of rights of the petitioner under Article 22 of the Constitution of India and in particular Clause (5) thereof. On account of the inordinate delay in deciding the representations made by the petitioner, the continuation of impugned order of preventive detention is vitiated and therefore the impugned order of detention will have to be set aside."

In the present case, the order of detention was placed before the Advisory Board on 23.02.2022. The detenue has submitted the representation on 07.03.2022. The Advisory Board has reported to the State Government on 23.03.2022. Prior to the Advisory Board submitting its report, the State Government has failed to consider the representation of the detenue and place the same before the Advisory Board. Even after receipt of the report from the Advisory Board, for nearly six months the State Government has not passed any order on the representation submitted by the detenue.

Though the learned State Public Prosecutor has sought to defend the action of the State Government on the ground that the representation was not considered by the State Government since the matter was pending consideration before the Advisory Board, the said contention is liable to be rejected for the reason that the State Government is required to consider the representation independently, as expeditiously as possible.

In the present, even after the Advisory Board submitted its report on 23.03.2022, for a period of nearly six months the State Government has not passed any order on the representation of the detenue, and therefore, we are of the considered view that the same would amount to violation of the constitutional rights guaranteed to the detenue. Though there is no hard and fast rule as to how much time should be taken by the competent authority or the Government for considering the representation, the time taken by the State Government to consider the petitioner's representation in the present case is inordinate and cannot be considered as reasonable.

The perusal of the grounds of detention would go to show that the Detaining Authority was appraised of the order of bail granted to the detenue in Crime No.143/2021, and therefore, there is no merit in the contention urged by the detenue that non-production of the bail order granted in the said Crime No.143/2021 has adversely affected his case. The judgments in Rushikesh Tanaji Bhoite's case, Sushanta Kumar Banik's case, Shankara Gouda's case and Rizwan Sharif's case supra, would therefore, not be applicable to the facts of the present case.

Further, a reading of the representation submitted by the detenue would go to show that he has not raised any plea with regard to supply of illegible documents to him, and therefore, the said contention raised by the petitioner before this Court is liable to be rejected.

Further, the material on record would also go to show that the detenue's case was placed before the Advisory Board within the prescribed time as provided under Section 10 of the Act, and therefore, the contention of the learned Counsel for the petitioner that there is violation of Section 10 of the Act in the present case is also liable to be rejected.

However, for the reason that the detenue's representation has not been considered by the State Government within a reasonable period and the same has been rejected only after filing of the present writ petition, we are of the considered view that there is violation of the rights conferred upon the detenue under Article 22(5) of the Constitution of India, and therefore, the continuation of the order of detention is rendered illegal. Accordingly, the writ petition succeeds and we pass the following order:

The writ petition is allowed. The order of detention dated 10.02.2022 at Annexures-A & A1, the order of approval of detention dated 17.02.2022 at Annexure-C and the confirmation order dated 29.03.2022 at Annexure-F, are quashed. We direct that the detenue/Mahammed Riyaz shall be set at liberty forthwith by the Bengaluru Central Prison, if he is not required in connection with any other case.