Karnataka High Court
Smt. Shruthi T K vs Deputy Commissioner And on 18 July, 2023
Author: Alok Aradhe
Bench: Alok Aradhe
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NC: 2023:KHC:24905-DB
WPHC No.39 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
W.P.H.C. NO.39 OF 2023
BETWEEN:
1. SMT. SHRUTHI T.K.
W/O SANTHOSH KUMAR S.K.
Digitally AGED ABOUT 35 YEARS
signed by
RUPA V NO.695/6, 2ND FLOOR
Location: NEAR NEW MASJID SYED PEER BADAVANE
High Court LENIN NAGAR, NITTUVALLI
of Karnataka DAVANAGERE 577004.
...PETITIONER
(BY SRI. CHANDRASHEKARA K, ADV.,)
AND:
1. DEPUTY COMMISSIONER AND
DISTRICT MAGISTRATE
DAVANAGERE DISTRICT
DAVANAGERE 577004
BY SHIVANAND KAPASHI, I.A.S.
2. STATE OF KARNATAKA
BY SECRETARY
HOME AND TRANSPORT DEPARTMENT
VIDHANA SOUDHA, BANGALORE 560001.
3. THE SUPERINTENDENT
CENTRAL PRISON
BELLARY 583103.
...RESPONDENTS
(BY SRI. THEJESH P, HCGP FOR R1-R3)
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NC: 2023:KHC:24905-DB
WPHC No.39 of 2023
THIS WPHC IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO DECLARE THE
DETENTION OF SHRI SANTHOSH KUMAR .K @ KANUMA S/O
KANUMAPPA, BY ORDER MAG/CR/253/2022-23 DATED
11.04.2023 (ANNEXURE-A AND B) PASSED BY RESPONDENT
NO.1 AND APPROVED BY THE RESPONDENT NO.2 BY ORDER
NO.HD 206 SST 2023 DATED 19.04.2023 (ANNEXURE-E) AS
ILLEGAL AND VOID ABINITIO.
THIS PETITION COMING ON FOR FINAL DISPOSAL, THIS
DAY, ALOK ARADHE J., MADE THE FOLLOWING:
ORDER
This petition has been by the wife of the detenue viz., Santhosh Kumar K alias Kanuma, in which the order dated 11.04.2023 passed under Section 3(1) of The Karnataka Prevention Of Dangerous Activities Of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders & Slum Grabbers Act, 1985 (hereinafter referred to as 'the Act' for short) has been assailed. The petitioner has also assailed the validity of the order dated 19.04.2023 passed by the State Government under Section 3(3) of the Act.
2. Facts giving rise to filing of this petition briefly stated are that the detenue has studied up to -3- NC: 2023:KHC:24905-DB WPHC No.39 of 2023 VIIth Standard. An order of detention as passed against the detenue on 11.04.2003 and a copy of the aforesaid order was forwarded to the State Government for confirmation. The detenue submitted a representation on 15.04.2003 to the detaining authority. Thereafter, the detaining authority passed an order under Section 3(3) of the Act on 19.04.2023.
3. Learned counsel for the petitioner has submitted that illegible documents were supplied to the detenue and therefore, he was deprived of the right to make an effective representation and therefore, the order of detention is vitiated in law. It is contended that failure to supply legible documents has violated the fundamental rights guaranteed to the detenue under Article 22(5) of the Constitution of India.
4. On the other hand, learned High Court Government Pleader has supported the order passed by -4- NC: 2023:KHC:24905-DB WPHC No.39 of 2023 the Commissioner of Police, which has been confirmed by the State Government.
5. We have considered the submissions made on both sides and have perused the record. The Hon'ble Supreme court in 'STATE OF MANIPUR AND OTHERS VS. BUYAMAYUM ABDUL HANAN ALAIAS ANAND AND ANOTHER', 2022 SCC ONLINE SC 1455 in para 17 and 18 has held as under:
17. It is well settled that right to make a representation implies that the detenu should have all the information that will enable him to make an effective representation. No doubt, this right is again subject to the right or privilege given by clause (6). At the same time, refusal to supply the documents requested by the detenu or supply of illegible or blurred copies of the documents -5- NC: 2023:KHC:24905-DB WPHC No.39 of 2023 relied upon by the detaining authority amounts to violation of Article 22(5) of the Constitution.
Although it is true that whether an opportunity has been afforded to make an effective representation always depends on the facts and circumstances of each case.
18. What will be the effect when the detenue is deprived of effective representation or denial of supply of relied upon documents by the detaining authority has been considered by this Court in Ramchandra A. Kamat v. Union of India and Others as under:
"6. The right to make a representation is a fundamental right. The representation thus -6- NC: 2023:KHC:24905-DB WPHC No.39 of 2023 made should be considered expeditiously by the government.
In order to make an effective representation, the detenu is entitled to obtain information relating to the grounds of
detention. When the grounds of detention are served on the detenu, he is entitled to ask for copies of the statements and documents referred to in the grounds of detention to enable him to make an effective representation. When the detenue makes a request 5 (1980) 2 SCC 270 for such documents, they should be supplied to him expeditiously. The detaining authority in preparing the grounds would have referred to the statements and documents relied on in the grounds of detention and would be -7- NC: 2023:KHC:24905-DB WPHC No.39 of 2023 ordinarily available with him -- when copies of such documents are asked for by the detenue the detaining authority should be in a position to supply them with reasonable expedition. What is reasonable expedition will depend on the facts of each case."
6. In view of the aforesaid enunciation of law by Hon'ble Supreme Court, we may advert to the facts of the case in hand. In the instant case, the documents which have been filed to the detenue have been produced before us. Learned High Court Government Pleader has also gone through the same and was unable to dispute the statement that the documents supplied to the detenue were not legible. Thus, it is evident that the detenue has been deprived of his right to make an effective representation. Therefore, the -8- NC: 2023:KHC:24905-DB WPHC No.39 of 2023 order passed under Section 3(1) and Section 3(3) of the Act cannot be sustained in the eye of law.
7. The orders dated 11.04.2023, 19.04.2023 as well s the order dated 29.05.2023 issued by the State Government are quashed. The respondents are directed to set the detenue at liberty in case, he is not required in connection with any other offence.
Accordingly, the petition is allowed.
Sd/-
JUDGE Sd/-
JUDGE SS