Karnataka High Court
Smt. B Monika W/O Y B Govind vs State Of Karnataka on 19 July, 2023
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2023:KHC-D:7555
WP No. 103178 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
®
DATED THIS THE 19TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
WRIT PETITION NO. 103178 OF 2023(GM-RES)
BETWEEN:
1. SMT. B.MONIKA W/O Y.B.GOVIND,
AGE: 22 YEARS, OCC: HOUSEHOLD,
R/O: BEHIND SCHOOL, ANDRAL VILLAGE,
BALLARI TALUK-583101.
...PETITIONER
(BY SRI.R.M. JAVED AND
SRI.ANWAR BASHA B., ADVOCATES)
AND:
1. STATE OF KARNATAKA
REP BY SECRETARY
DEPT OF HOME (LAW AND ORDER),
AMBEDKAR VEEDHI,
VIDHANA SOUDHA, BENGALURU-560001.
2. DEPUTY COMMISSIONER AND DIST MAGISTRATE
Digitally signed
by SAROJA
BALLARI DIST, BALLARI-583101.
HANGARAKI
Location:
HIGH COURT
OF
3. SUPERINTENDENT OF POLICE
SAROJA
HANGARAKI KARNATAKA
DHARWAD BALLARI DIST, BALLARI-583101.
BENCH
Date:
2023.12.21
15:46:28
+0530
4. SUPERINTENDENT CENTRAL PRISON
MANGALURU-575001.
...RESPONDENTS
(BY SRI.KIRAN S JAVALI, SENIOR COUNSEL AS AMICUS CURIAE
SRI.M.B. GUNDAWADE, SPECIAL PUBLIC PROSECUTOR)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CR.P.C. PRAYING TO. A. ISSUE A WRIT/ORDER IN THE NATURE OF
CERTIORARI QUASHING THE ORDER PASSED BY RESPONDENT NO.1,
DATED 19.04.2023 IN NO.HD.190.SST.2023 (ANNEXURE-G) WHICH
CONFIRMED THE ORDER PASSED BY RESPONDENT NO.2 IN
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WP No. 103178 of 2023
NO.REV/MAG/GOONDA/ACT/01/2022 DATED 27.03.2023 PASSED
U/S.3(2) OF THE KARNATAKA PREVENTION OF DANGEROUS
ACTIVITIES OF BOOTLEGGERS, DRUG OFFENDERS, GAMBLERS,
GOONDA (IMMORAL TRAFFIC OFFENDERS OR SLUM GRABBER OR
VIDEO OR AUDIO PIRATE) ACT, 1985 (ANNEXURE-D) IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The present writ petition is filed by Smt.B.Monika, wife of the detenue with the following prayer:
"Quashing the order passed by respondent No.1, dated 19.04.2023 in No.HD.190.SST.2023 (Annexure-G) which confirmed the order passed by respondent No.2 in No.REV/MAG/GOONDA/Act/01/ 2022 dated 27.03.2023 passed U/s.3(2) of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goonda (Immoral Traffic Offenders or Slum Grabber or Video or Audio Pirate) Act, 1985 (Annexure-D) in the interest of justice and equity."
2. Facts in brief for disposal of petition are as under:
District Magistrate, Ballari (respondent No.2) passed an order on 27.03.2023 under Section 3(2) of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas -3- NC: 2023:KHC-D:7555 WP No. 103178 of 2023 (Immoral Traffic Offenders or Slum Grabber or Video or Audio Pirate) Act, 1985 (hereinafter referred to as 'said Act' for short). By virtue of the said order, husband of the petitioner is detained as ordinary prisoner at Central Prison, Mangaluru on and from 27.03.2023.
3. Order dated 27.03.2023 confirmed by the State Government by order dated 19.04.2023 is challenged by the wife of the petitioner in the present petition.
4. It is submitted that the husband of the petitioner and the petitioner lived in Andral village, Ballari District along with their children. They used to do coolie work for eking out their livelihood. Jurisdictional police registered about nine cases against the husband of the petitioner. Among nine cases, three cases stood acquitted and four cases are pending trial and two cases are under investigation. In view of pendency of nine criminal cases against the husband of the petitioner, notices of the cases were issued to the petitioner who is the wife of Y.B.Govind (detenue).
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5. Respondent No.3 arrested Y.B.Govind on 27.03.2023 and he was sent to Central Prison, Mangaluru and passed an order purportedly acting under Section 3(2) of the said Act and such arrest was preventive detention.
6. It is further contended that there was no opportunity granted to the petitioner or the detenue to have their say in the matter and therefore it is illegal detention and the same is challenged on the following grounds:
"11) It is submitted that the respondent No.2 has not served any notice before passing the detention order Dt.27.3.2023 and no inquiry proceedings were initiated and without following the procedure as per sec.8 of the Goonda Act the impugned order is passed.
12) It is submitted that the respondent No.1 has not considered the objection filed by the detenue properly and has been overlooked by the respondent No.1 and the said order is against the settled position as per sec.3(1) and 3(2) of the said Act.
13) It is submitted that the Respondent No.1 Dt.19.4.2023 has passed two orders one rejecting the objection filed by detenue without considering -5- NC: 2023:KHC-D:7555 WP No. 103178 of 2023 properly and order confirming the detention order passed by Respondent No.2 Dt.27.3.2023. In the first instance the order if perused it goes to show that the objection submitted by detenue is translated in English language and thereafter no proper detailed order is passed on the subject matter and same day another order is passed confirming the detention order which is Illegal and unconstitutional.
14) It is submitted that if the Order Dt.19.4.2023 (Annexure-F) is perused, in reference column reference is made about Govt Order HD.190.SST.2023 Dt.5.4.2023, but however the detenue nor the petitioner are aware about such order. Hence the order passed by respondent No.1 is against the natural justice and violates the fundamental right of accused/detenue.
15) It is submitted that the Order passed by Respondent No.1 (Annexure-G) in it no where it speaks about the objection submitted by the detenue and no order is passed to that extent. Though the detenue requested for personal hearing before board he was not produced before the board at any point of time.
16) It is submitted that the Respondent No.3 alleged to have issued notice Dt.20.3.2023 about inquiry to detenue which was not served on him and there is no inquiry report of the respondent No.2 or 3 and nor -6- NC: 2023:KHC-D:7555 WP No. 103178 of 2023 made available to detenue at any point of time.
There was no inquiry held by the respondent No.3 and without conducting any inquiry straightaway passed the detention order Dt.27.3.2023 which is against sec.8 of the said Act and is illegal and against the law.
17) It is submitted that the detenue is accused in 6 pending cases and acquitted in earlier 3 cases. There is no independent report of jurisdictional police about any violation of any order passed by trail court on bail and no witness is tampered or violated any order. There is no case/report from any one. Then also the detenue is arrested and sent to judicial custody. It amounts to illegal detention.
18) It is submitted that when there are no reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence and no report or independent report is filed against him and nor made available to him the respondent police before Invoking provision for detention and no notice is served on the petitioner by the police.
19) It is submitted that the Respondent has not provided notice and not complied by producing a copy of complaint/report submitted by concerned police leveling certain allegations which could form the order for detention. There is no report from the -7- NC: 2023:KHC-D:7555 WP No. 103178 of 2023 respondent police or any independent complaint or complaint of violation of any conditions of order of bail. That there is no warrant for the petitioner to be externed on account of the aforesaid cases and hence seeking quashment of the said impugned order.
20) The petitioner finds no other alternative remedy than to approach this Hon'ble Court seeking the relief It is further submitted that the petitioner has not filed any other petition, suit or proceeding on the subject before any forum, court or tribunal nor are such proceedings pending before any forum, court or tribunal."
7. Reiterating the grounds urged in the petition, Sri.R.M.Javed, learned counsel representing the petitioner sought for allowing the writ petition with the aforesaid prayer.
8. Per contra, Sri.M.B.Gundawade, learned Special Public Prosecutor opposed the grounds urged in the petition by contending that the order challenged in the writ petition is valid and necessary procedure has been followed by the District Magistrate and all concerned in -8- NC: 2023:KHC-D:7555 WP No. 103178 of 2023 properly implementing the safeguards provided under the said Act before and after the preventive detention order is served and implemented.
9. He also contended that there is no error whatsoever in the orders passed by the District Magistrate and the Act contemplates only subjective satisfaction of the District Magistrate in arriving a finding that a person needs to be detained under the provisions of the said Act and therefore, no error has occurred either jurisdictional or technical in passing the order under challenge and therefore sought for dismissal of the petition.
10. Taking note of the good number of matters where the orders passed by the District Magistrate are called in question and majority of such orders would get set aside by higher courts only on technical errors, this Court has requested Sri.Kiran S Javali, learned Senior counsel who was the State Public Prosecutor for the State earlier, to act as an amicus and assist in disposal of the present petition.
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11. Sri.Kiran S Javali, learned Senior counsel agreed to assist the Court and he has furnished a synopsis detailing the procedural aspects to be followed before passing the order of preventive detention with relevant case laws.
12. In the light of the arguments put forth on behalf of the parties, in the facts and circumstances of the case and the synopsis furnished by learned amicus, this Court has analyzed the material on record.
13. The Karnataka Prevention of Dangerous Activities of Bottleggers, Drug Offenders, Gamblers, Goondas (Immoral Traffic Offenders or Slum Grabber or Video or Audio Pirate) Act, 1985 (hereinafter referred to as 'Act' for short) was promulgated and came into force on and from 29.04.1985. The object of the said enactment is to provide for issuance of preventive detention order and same should be in conformity with the requirement of Article 22(4) of the Constitution of India.
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14. Various judicial pronouncements have time and again ruled that, order of preventive detention is based in subjective satisfaction of the detaining authority. However, subjective satisfaction of the detaining authority must be based on relevant and pertinent material. Such satisfaction must be based on consideration of materials and vital facts which would compel passing of an order of preventive detention.
15. Indeed in recording the finding of subjective satisfaction, irrelevant material or extraneous material have no place and such material if considered, would render the subjective satisfaction illegal. It is to be construed that subjective satisfaction should not mean capricious appreciation of the relevant facts. But subjective satisfaction arrived at by the detaining authority should be in conformity with test of reasonableness inasmuch as a reasonable person can arrive at a finding or infer an opinion in the facts and circumstances which would result in passing an order of preventive detention and not on the logical conclusion with the strict rules of evidence.
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16. The Apex Court in the case of Sk.Nizamuddin vs. State of West Bengal reported in 1975(3) SCC 395, while dealing with the said aspect of the matter, has held as under:
"3. It is obvious from the facts set out in the affidavit- in-reply that the petitioner was arrested in connection with the criminal case arising out of the incident dated April 14, 1973 set out in the grounds of detention. The criminal case was ultimately dropped as the witnesses were not willing to come forward to give evidence for fear of danger to their life and the petitioner was discharged. The date of discharge of the petitioner was, however, not set out in the affidavit-in-reply. We asked the learned counsel appearing on behalf of the respondent as to whether there was any record with him from which he could tell us as to what was the date on which the petitioner was discharged but he stated that the only record which he had was that relating to the order of detention and the record relating to the criminal case had not been sent to him. We were told that even the history-sheet of the petitioner, which was before the District Magistrate when he made the order of detention, did not give the date when the criminal prosecution was dropped and the petitioner was discharged. It did not even make any reference to the criminal case. This is rather unfortunate. We should have thought that the fact that a criminal case is pending against the person who
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 is sought to be proceeded against by way of preventive detention is a very material circumstance which ought to be placed before the District Magistrate. That circumstance might quite possibly have an impact on his decision whether or not to make an order of detention. It is not altogether unlikely that the District Magistrate may in a given case take the view that since a criminal case is pending against the person sought to be detained, no order of detention should be made for the present, but the criminal case should be allowed to run its full course and only if it fails to result in conviction, then preventive detention should be resorted to. It would be most unfair to the person sought to be detained not to disclose the pendency of a criminal case against him to the District Magistrate. But that is a different question altogether and it need not detain us. The fact remains that there was no record with the learned counsel appearing on behalf of the respondent from which he could give us the date when the petitioner was discharged. In view of this failure of the part of the respondent to supply information to the Court as to when the petitioner was discharged, we must proceed on the assumption that he must have been discharged on or about September 10, 1973. The order of detention must have been made by the District Magistrate in anticipation of the discharge of the petitioner and the discharge of the petitioner can, therefore, be presumed to have taken place at or
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 about the time when the order of detention was made, that is, September 10, 1973. But if that be so, the conclusion is inescapable that though the petitioner was available for detention since about September 10, 1973, he was not detained for a period of about two and a half months up to November 23, 1973. There was delay of about two and a half months in detaining the petitioner pursuant to the order of detention and this delay, unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate recited in the order of detention. It would be reasonable to assume that if the District Magistrate was really and genuinely satisfied after proper application of mind to the materials before him that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner, he would have acted with greater promptitude in securing the arrest of the petitioner immediately after the making of the order of detention, and the petitioner would not have been allowed to remain at large for such a long period of time to carry on his nefarious activities. Of course when we say this we must not be understood to mean that whenever there is delay in arresting the detenu pursuant to the order of detention, the subjective satisfaction of the detaining authority must be held to be not genuine or colourable. Each case must depend on its own peculiar facts and circumstances. The detaining authority may have a reasonable
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 explanation for the delay and that might be sufficient to dispel the inference that its satisfaction was not genuine. But here we find that though an affidavit-in- reply was filed by the District Magistrate himself, no explanation was forthcoming in this affidavit as to why the petitioner was not arrested until November 23, 1973, though the order of detention was made as far back as on September 10, 1973. The learned counsel appearing on behalf of the respondent contended that the State was not expected to render any explanation in regard to the delay in arresting the petitioner pursuant to the order of detention because no such complaint was made in the petition. But this is hardly an argument which can avail the State when it is called upon to answer a rule issued on a petition for a writ of habeas corpus. It is the obligation of the State or the detaining authority in making its return to the Rule in such a case to place all the relevant facts before the Court and if there is any delay in arresting the detenu pursuant to the order of detention which is prima facie unreasonable, the State must give reasons explaining the delay. Vide Sk. Serajul v. State of West Bengal [ WP 2000 of 1973, decided on September 9, 1974] . Since in the present case no explanation for the delay has been given in the affidavit-in-reply filed by the District Magistrate, we are not at all satisfied that the District Magistrate applied his mind and arrived at a real and genuine subjective satisfaction that it was necessary to detain the petitioner with a
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 view to preventing him from acting in a prejudicial manner. The condition precedent for the making of the order of detention was, therefore, not satisfied and consequently the order of detention must be quashed and set aside."
17. Again, in the case of K.Aruna Kumari vs. Government of Andhra Pradesh, reported in (1988)1 SCC 296, the Hon'ble Apex Court, reiterated the above principles by holding as under:
"8. In support of his second point Mr Tarkunde contended that it is open to the petitioner to show that the levy cement which was being transferred into non- levy cement bags did not belong to Madhava Rao, and the impugned order having been passed on that assumption is, therefore, fit to be quashed. In other words, the learned Counsel said, that the ground mentioned for the detention being non-existent the application must succeed. Reliance was placed on a certificate dated 23-6-1987 of the office of the Divisional Railway Manager (Works), Hyderabad in reply to a letter by one K. Eswara Rao that 1000 bags of cement issued to him on 16-12-1986 was Puzzolon Portland Cement, Pyramid Brand of Pariyan Company and it was urged that as the 5 empty bags having the marks of "Ajanta Brand Kesoram, Basant Nagar (A.P.)
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 Portland Pozzolana Cement" as stated in the panchnama (page 82 of the paper-book of the writ petition) was found by the police, it must be assumed that the levy cement which was being transferred to empty bags was not the same which was issued to the detenu. Learned Advocate General, appearing for the respondent State, replied that there was sufficient material on the records of the case on the basis of which the detaining authority could have legitimately assumed that the cement in question was part of the cement issued to Madhava Rao. Before examining the point urged on behalf of the petitioner on merits, it must be pointed out that this Court while considering petitioner's writ application is not sitting in appeal over the detention order, and it is not for us to go into and assess the probative value of the evidence available to the detaining authority. Of course, a detention order not supported by any evidence may have to be quashed, but that is not the position here. There was clearly sufficient material before the District Magistrate to justify the forming of his opinion as stated earlier. The question was not raised in the writ petition filed before the High Court, and the plea based upon the brand of cement was belatedly taken in the case and has been dealt with at some length in the judgment of the High Court which is under challenge in the special leave petition. We do not consider it necessary to repeat them but we would mention briefly the argument of the learned Advocate General which
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 appears to be well founded. Our attention was drawn to the gatepass (page 154 of the paper-book of the writ petition) showing the issuance of the levy cement "to the contractor", that is, Madhava Rao, which was signed by Mohammad Chand on behalf of the Railways and Babu, Madhava Rao's employee. This does not mention the name of Eswara Rao, the other employee of the contractor. It is not denied on behalf of the detenu that he has been executing many contract works for the Railways, and therefore it cannot be presumed that the same consignment was the subject matter of the gatepass as well as the certificate relied upon on behalf of the petitioner. The point now urged on the basis of the brand of cement was taken on behalf of the petitioner belatedly as mentioned earlier. Besides, the detenu accepted the allegations against himself in his statement recorded under Section 161 of the Code of Criminal Procedure. It is true that it may not be a legally recorded confession which can be used as substantive evidence against the accused in the criminal case, but it cannot be completely brushed aside on that ground for the purpose of his preventive detention. The records further show that the oral evidence of the watchman and the labourer engaged in the house construction proved that it was the levy cement issued to the detenu which was being diverted at his instance. Before closing this chapter it may be re- stated that the sufficiency of the materials available to
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 the detaining authority is not to be examined by the court."
18. Whenever an order of detention is issued by exercising the power vested under the statute, the detaining authority or the issuing authority is not concerned with the mischief already committed by the detenu. But the detention order must always be issued in anticipation that the detenu may commit similar mischief/offence in future which would act prejudicial to the interest of the Society at large, as is held in the case of P.L.Lakhan Pal vs. Union of India reported in AIR 1967 SC 908 and Sadhu Roy vs. State of West Bengal reported in (1975)1 SCC 660. Relevant portion in the case of P.L. Lakhanpal reads as under:-
6. In the present case we are concerned not with a detention order passed by an authorised officer but by the Central Government. In the case of such an order made under Rule 30(1)(b) the determinative factor is the satisfaction in regard to a particular person that it is necessary to detain him with a view to prevent him from acting prejudicially to the matters or any one or more of them therein set out.
The jurisdiction to detain is not in respect of a
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 mischief already committed but in anticipation that the person concerned may in future act prejudicially. Such satisfaction is exclusively that of the detaining authority and it is inherent in the power that it is and has to be the subjective satisfaction. Presumably an emergency having been declared by the President the legislature granted such a drastic and unique power enabling the Government to act quickly to prevent the person concerned from doing anything detrimental to the said matters. In such a case it must have been presumed by the legislature that a judicial process under normal laws may be either inapt or inappropriate. Thus the condition precedent to the exercise of jurisdiction to detain under Rule 30(1)(b) is only the subjective satisfaction that it is necessary to detain the person concerned, (cf. Rammanohar Lohia v. State of Bihar [(1966) 1 SCR 709] ).
19. In Sadhu Roy v. State of W.B., (1975) 1 SCC 660 it has been held as under:
5. The crucial submission that deserves close study turns on the colourable nature or mindless manner of the impugned order. What are the facts germane to this issue? It is seen that the petitioner's name is not in the first information statements. Had a court
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 occasion to adjudge the guilt of an accused person charged with serious crime committed in the presence of quasi-police officers and his name is not seen in the earliest report to the police, that would have received adverse notice unless explained. Likewise, the circumstance that the final police report to the Court terminated the criminal proceedings may, unless other reasons are given, militate against the implication of the petitioner since Section 169 CrPC refers to two situations one of which at least nullifies possible inference of incrimination i.e. that there is no "reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate". It behoves the detaining authority to tell this Court how he reached his mental result in the face of a "release report" by the police. For, the legal label that the satisfaction of the executive authority about potential prejudicial activity is "subjective" does not mean that it can be irrational to the point of unreality. Subjective satisfaction is actual satisfaction, nevertheless. The objective standards which courts apply may not be applied, the subject being more sensitive; but a sham satisfaction is no satisfaction and will fail in court when challenged under Article 32 of the Constitution. If material factors are slurred over, the formula of "subjective satisfaction" cannot salvage the deprivatory order. Statutory immunology hardly saves such invalidity. After all, the jurisprudence of detention without trial is not the
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 vanishing point of judicial review. The area and depth of the probe, of course, is conditioned by the particular law, its purpose and language. But our freedoms are not wholly free unless the judiciary have a minimal look at their executive deprivation, even though under exceptional situations.
20. A survey of judicial pronouncements on the point would establish that the detention order must be passed in strict compliance with legal provisions of the act keeping in view that the detention order is issued based on the subjective satisfaction of the detailing authority/ issuing authority and having regard to the limited defence available to the detenue in challenging the order of detention. As such, the technical errors in passing the detention order or failure to adhere to the requirements of Article 22(5) of the Constitution of India would render the detention order as bad in law ipso facto.
Accordingly any such technical error in the order of detention and non adherence to requirements to the safeguards as is enshrined in Article 22(5) of the Constitution of India should always enure to the benefit of the detenue.
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21. In the backdrop of aforesaid legal principles, on perusal of Section 3(1) of the Act, an Order of detention has to be issued strictly in accordance with Section 3(1) of the Act by the State Government. The Order has to be issued with a view to prevent the detenue from acting in any manner prejudicial to the maintenance of public order and the anticipation of breach of public order. The anticipated mischief on the part of detenue should act as fulcrum in not only issuance of detention order but also in supporting detention order, if challenged.
22. On close reading of Section 3 of the Act, it is seen that Section 3(2) of the Act provides that power under Section 3(1) can be delegated to the Commissioner of Police or District Magistrate by issuing necessary notification. The order passed under Section 3(2) of the Act has to provide for a period during which, such power can be exercised by delegatee authority.
Further, if an order is issued by delegatee authority under Section 3(2) of the Act, such an order must meet requirement of the parameters under Section 3(3) of the Act. Further, if an order of detention is issued by an authority by exercising the delegated power under Section 3(2) of the Act, such an order would be valid to maximum period of only 12 days within which
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 the order passed under Section 3(2) of the Act must be approved by the State Government by exercising the power under Section 3(3) of the Act. If within 12 days the order passed under Section 3(2) is not approved by exercising the power under Section 3(3) of the Act, detenu is entitled to be released forthwith. Judicial pronouncements while considering the above provisions have categorically ruled that compliance of Section 3(3) of the Act is time bound and failure to adhere to the time frame as is contemplated under Section 3(2) and 3(3) and any lapse on the part of the authority should always enure to the benefit of the detenu in getting his immediate release.
23. Judicial pronouncements have time and again held that whenever a preventive detention order has to be passed, such orders must meet the constitutional mandate as is found in Article 22(5) of the Constitution of India. Therefore, the order of detention requires strict compliance of Constitutional mandate.
24. Hon'ble Apex court while considering the strict adherence to the mandatory compliance of safeguard in the case of Surendra Singh vs. Union of India reported in 1990 Crl.L.J 906 has held as under:
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7. In order to appreciate the points raised by the learned counsel appearing on behalf of the petitioner, it is necessary to give some more facts. From the perusal of the order of detention, the grounds in support thereof and the annexures to the grounds, it would appear that the same had been issued in English language. English, is not known to the petitioner, as stated in the writ application. According to the petitioner, he can only understand the GURUMUKHI script of Punjabi language and as such the failure on part of the Detaining Authority to furnish the aforementioned documents in a language known to the petitioner leads to violation of section 3(3) of the Cofeposa Act, which incorporates the provisions of Article 22(5) of the Constitution of India. The petitioner has stated that he has no knowledge of either Hindi or English. Therefore, he was deprived of filing any effective representation to the Authority to the effect that he was not a professional smuggler, who regularly indulges in transportation of smuggled goods.
25. Compliance of Article 22(5) of the Constitution of India is not an empty formality. The authorities are required to comply the requirements in its real sense by supplying the copies of all documents whereby the detaining authority
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 recorded subjective satisfaction for ordering detention. The compliance is to safeguard the valuable rights of detenu is not infringed as held in the case of Ramachandra A Kamat vs. Union of India reported in (1980)2 SCC 270. The relevant portion of the said judgment reads as under:
10. The explanation given by the detaining authority regarding the delay in furnishing copies as seen in his counter-affidavit is that the constitutional right of the petitioner to make effective representation had not been infringed. According to the detaining authority "it was not incumbent upon the detaining authority to supply copies of all the documents relied upon in the grounds of detention to the petitioner along with the grounds within 5 days of detention as petitioner has contended. In this context it would be relevant to state that the grounds were sufficiently detailed so as to enable the petitioner to make an effective representation against the detention". He further stated that all steps were taken to comply as expeditiously as possible. It may not be necessary for the detaining authority to supply copies of all the documents relied upon in the grounds of detention at the time when the grounds are furnished to the detenu but once the detenu states that for effective representation it is necessary that he should have copies of the statements and documents referred to
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 in the grounds of detention, it is the duty of the detaining authority to furnish them with reasonable expedition. The detaining authority cannot decline to furnish copies of the documents on the ground that the grounds were sufficiently detailed to enable the petitioner to make an effective representation. In this case, the detaining authority should have been taken reasonable steps to provide the detenu or his Advocate with the statements and documents as early as possible. The reply to the detenu was not sent by the detaining authority and it is not clear whether he appreciated the necessity to act expeditiously. As noted already, a communication was sent by the Deputy Secretary to the Deputy Director, who did not comply with the direction and furnish copies of the statements and documents. After a lapse of 12 days i.e. on September 22, 1979, the Deputy Director offered inspection.
26. On careful perusal of the principles of law enunciated in the aforesaid judgments, resultant legal position that could be deduced is that detaining authority after passing detention order, has to strictly follow the requirement as is found in Article 22(5) of the Constitution of India which reads as under:
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 "22(5). When any person is detained in pursuance of an Order made under any Law providing for preventive detention, the authority making the Order shall, as soon as may be, communicate to such person the Grounds on which the Order has been made and shall afford him the earliest opportunity of making a representation against the Order."
27. On bare reading of the above Article it is crystal clear that detaining authority must communicate the grounds on which detention has been made. Under Section 8(1) of the Act, grounds of preventive detention ought to be communicated to the detenu within a period of five days and failure to communicate the grounds within stipulated period of five days, the detention would be rendered bad in law and detenue would be entitled to his release forthwith.
28. Often, there arises a doubt as to what exactly is the meaning of 'grounds for detention'. The words 'grounds' as is found in Article 22(5) of the Constitution of India supra, has been the subject matter of interpretation in catena of judgments by the Hon'ble Apex Court namely Shalini Soni vs. Union of India reported in (1980)4 SCC 544, Lallubhai Jogibhai Patel v. Union of India, (1981) 2 SCC 427 and
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 Icchu Devi Choraria vs. Union of India reported in (1980)4 SCC 531.
29. In the case of Shalini Soni vs. Union of India reported in (1980) 4 SCC 544 it is held as under:
7. The Article has two facets: (1) communication of the grounds on which the order of detention has been made; (2) opportunity of making a representation against the order of detention.
Communication of the grounds presupposes the formulation of the grounds and formulation of the grounds requires and ensures the application of the mind of the detaining authority to the facts and materials before it, that is to say to pertinent and proximate matters in regard to each individual case and excludes the elements of arbitrariness and automatism (if one may be permitted to use the word to describe a mechanical reaction without a conscious application of the mind). It is an unwritten rule of the law, constitutional and administrative, that whenever a decision making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote. Where there is further an express statutory obligation to communicate not merely the decision but the
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 grounds on which the decision is founded, it is a necessary corollary that the grounds communicated, that is, the grounds so made known, should be seen to pertain to pertinent and proximate matters and should comprise all the constituent facts and materials that went in to make up the mind of the statutory functionary and not merely the inferential conclusions. Now, the decision to detain a person depends on the subjective satisfaction of the detaining authority. The Constitution and the statute cast a duty on the detaining authority to communicate the grounds of detention to the detenu. From what we have said above, it follows that the grounds communicated to the detenu must reveal the whole of the factual material considered by the dataining authority and not merely the inferences of fact arrived at by the detaining authority. The matter may also be looked at from the point of view of the second facet of Article 22(5). An opportunity to make a representation against the order of detention necessarily implies that the detenu is informed of all that has been taken into account against him in arriving at the decision to detain him. It means that the detenu is to be informed not merely, as we said, of the inferences of fact but of all the factual material which have led to the inferences of fact. If the detenu is not to be so informed the opportunity so solemnly guaranteed by the Constitution becomes reduced to an exercise in futility. Whatever angle from which the
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 question is looked at, it is clear that "grounds" in Article 22(5) do not mean mere factual inferences but mean factual inferences plus factual material which led to such factual inferences. The "grounds" must be self-sufficient and self-explanatory. In our view copies of documents to which reference is made in the "grounds" must be supplied to the detenu as part of the "grounds".
30. In the case of Lallubhai Jogibhai Patel v. Union of India, reported in (1981) 2 SCC 427 it is held as under:
20. It is an admitted position that the detenu does not know English. The grounds of detention, which were served on the detenu, have been drawn up in English. It is true that Shri C.L. Antali, Police Inspector, who served the grounds of detention on the detenu, has filed an affidavit stating that he had fully explained the grounds of detention in Gujarati to the detenu. But, that is not a sufficient compliance with the mandate of Article 22(5) of the Constitution, which requires that the grounds of detention must be "communicated" to the detenu.
"Communicate" is a strong word. It means that sufficient knowledge of the basic facts constituting the "grounds" should be imparted effectively and fully to the detenu in writing in a language which he
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 understands. The whole purpose of communicating the "ground" to the detenu is to enable him to make a purposeful and effective representation. If the "grounds" are only verbally explained to the detenu and nothing in writing is left with him, in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed. If any authority is needed on this point, which is so obvious from Article 22(5), reference may be made to the decisions of this Court in Harikisan v. State of Maharashtra [1962 Supp 2 SCR 918 : AIR 1962 SC 911 : (1962) 1 CriLJ 797] and Hadibandhu Das v. District Magistrate [(1969) 1 SCR 227 : AIR 1969 SC 43 : 1969 Cri LJ 274] .
31. Again in the case of Icchu Devi Choraria v. Union of India, reported in (1980) 4 SCC 531 Hon'ble Apex Court while dealing with Article 22(5) of Constitution has held as under:
6. We must therefore now proceed to examine whether there was any breach of the requirements of Article 22, clause (5) of the Constitution and Section 3 sub-section (3) of the COFEPOSA Act, for that is the breach which is claimed by the petitioner as invalidating the continued detention of the
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 detenu. Clause (5) of Article 22 of the Constitution reads as follows:
"When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order."
Section 3 sub-section (3) of the COFEPOSA Act provides as under:
"For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention."
The true meaning and import of clause (5) of Article 22 of the Constitution was explained by this Court in Khudiram Das v. State of W.B [(1975) 2 SCC 81 :
1975 SCC (Cri) 435 : (1975) 2 SCR 832] : (SCC p. 87, para 5)
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 "The constitutional imperatives enacted in this Article are two-fold: (1) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention. These are the barest minimum safeguards which must be observed before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security."
It will be seen that one of the basic requirements of clause (5) of Article 22 is that the authority making the order of detention must, as soon as may be, communicate to the detenu the grounds on which the order of detention has been made and under sub-section (3) of Section 3 of the COFEPOSA Act, the words "as soon as may be" have been translated to mean "ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days, from the date of detention". The grounds of detention must therefore be furnished to the detenu ordinarily within five days from the date of detention, but in exceptional circumstances and
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 for reasons to be recorded in writing, the time for furnishing the grounds of detention may stand extended but in any event it cannot be later than fifteen days from the date of detention. These are the two outside time-limits provided by Section 3 sub-section (3) of the COFEPOSA Act because unless the grounds of detention are furnished to the detenu, it would not be possible for him to make a representation against the order of detention and it is a basic requirement of clause (5) of Article 22 that the detenu must be afforded the earliest opportunity of making a representation against his detention. If the grounds of detention are not furnished to the detenu within five or fifteen days, as the case may be, the continued detention of the detenu would be rendered illegal both on the ground of violation of clause (5) of Article 22 as also on the ground of breach of requirement of Section 3 sub- section (3) of the COFEPOSA Act. Now it is obvious that when clause (5) of Article 22 and sub-section (3) of Section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may be, what is meant is that the grounds of detention in their entirety must be furnished to the detenu. If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them. It would not therefore be sufficient to communicate to the detenu a bare recital of the grounds of detention, but copies of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to clause (6) of Article 22 in order to constitute compliance with clause (5) of Article 22 and Section 3 sub-section (3) of the COFEPOSA Act. One of the primary objects of communicating the grounds of detention to the detenu is to enable the detenu, at the earliest opportunity, to make a representation against his detention and it is difficult to see how the detenu can possibly make an effective representation unless he is also furnished copies of the documents, statements and other materials relied upon in the grounds of detention. There can therefore be no doubt that on a proper construction of clause (5) of Article 22 read with Section 3 sub-section (3) of the COFEPOSA Act, it is necessary for the valid continuance of detention that subject to clause (6) of Article 22 copies of the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu along with the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 be recorded in writing, not later than fifteen days from the date of detention. If this requirement of clause (5) of Article 22 read with Section 3 sub- section (3) is not satisfied, the continued detention of the detenu would be illegal and void."
32. The gist of the legal principles enunciated in the above judgments is that grounds as is set out in Article 22(5) of the Constitution of India, do not actually mean mere factual inferences but should mean factual inferences plus factual material which lead to such factual inferences. Copies of the documents on which reference is made in the grounds must also be supplied to the detenu as part of the grounds. Legal principles enunciated in this regard has held that failure to communicate the factual material collected by the detaining authority and making it as part of the grounds would amount of non communication of the grounds on which the order of detention has been made and thus would infringe the legal requirement as is enunciated in Article 22(5) of the Constitution of India rendering the detention order as invalid.
33. After detention order is passed and grounds of detention are properly communicated to the detenu, next stage
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 would be to consider the representation of the detenu by the detaining authority. It is pertinent to note that the detenu is not entitled to object for the detention order, but he may make a representation that his detention is improper.
34. On receipt of such representation, how a representation of the detenu is to be considered by the detaining authority is also no longer res integra.
35. The Hon'ble Apex Court, in the case of Jayanarayan Sukul v. State of W.B., reported in (1970) 1 SCC 219 in paragraph 20, has held as under:
20. Broadly stated, four principles are to be followed in regard to representation of detenus.
First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu 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
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 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 detenu's representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will send the case along with the detenu's representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu.
36. While considering protection given to citizens of the country and obligation of the state in that direction as is enshrined in Article 22(5) in its true spirit, Hon'ble Supreme Court in the case of Kamleshkumar Ishwardas Patel v.
Union of India reported in (1995)4 SCC 51, has held as under:
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6. This provision has the same force and sanctity as any other provision relating to fundamental rights.
(See: State of Bombay v. Atma Ram Shridhar Vaidya [1951 SCC 43 : 1951 SCR 167, 186 : AIR 1951 SC 157]). Article 22(5) imposes a dual obligation on the authority making the order of preventive detention: (i) to communicate to the person detained as soon as may be the grounds on which the order of detention has been made; and
(ii) to afford the person detained the earliest opportunity of making a representation against the order of detention. Article 22(5) thus proceeds on the basis that the person detained has a right to make a representation against the order of detention and the aforementioned two obligations are imposed on the authority making the order of detention with a view to ensure that right of the person detained to make a representation is a real right and he is able to take steps for redress of a wrong which he thinks has been committed. Article 22(5) does not, however, indicate the authority to whom the representation is to be made. Since the object and purpose of the representation that is to be made by the person detained is to enable him to obtain relief at the earliest opportunity, the said representation has to be made to the authority which can grant such relief, i.e., the authority which can revoke the order of detention and set him at liberty. The authority that has made the order of
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 detention can also revoke it. This right is inherent in the power to make the order. It is recognised by Section 21 of the General Clauses Act, 1897 though it does not flow from it. It can, therefore, be said that Article 22(5) postulates that the person detained has a right to make a representation against the order of detention to the authority making the order. In addition, such a representation can be made to any other authority which is empowered by law to revoke the order of detention.
14. 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 revoke the order for detention and thereby give relief to the person detained. The right to make a 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.
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37. Again, in the case of State of Maharashtra vs. Santosh Shankar Acharya reported in (2000)7 SCC 463, it is held as under:
2. All these appeals have been filed by the State of Maharashtra assailing the correctness of the decision of the Full Bench of the Bombay High Court, Bench at Nagpur, answering the question referred to, in favour of the detenu and against the State. The question that had been referred to the Full Bench for being answered is, whether in case of an order of detention by an officer under sub-
section (2) of Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981 (hereinafter referred to as "the Maharashtra Act"), non-communication to the detenu that he has a right of making a representation to the detaining authority constitutes an infraction of a valuable right of the detenu under Article 22(5) of the Constitution, and as such, vitiates the order of detention. There is no dispute that in all these cases the order of detention had been passed not by the State Government under Section 3(1) of the Maharashtra Act but by the officer concerned empowered by the State Government under sub-section (2) of Section 3 of the Act. It is also not disputed that while
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 communicating to the detenu the grounds of detention it has not been indicated therein that he has a right to make a representation to the detaining authority, though in the said communication it was mentioned that the detenu could make a representation to the State Government as provided under Section 8(1) of the Maharashtra Act. The Division Bench of the Bombay High Court on this aspect had taken inconsistent views and, therefore, the matter had been referred to the Full Bench. The Full Bench relying upon the Constitution Bench decision of this Court in Kamleshkumar Ishwardas Patel v. Union of India [(1995) 4 SCC 51 : 1995 SCC (Cri) 643] and on thorough analysis of the different provisions of the Maharashtra Act came to the conclusion that an order issued under sub-section (2) of Section 3 of the said Act cannot remain valid for more than 12 days unless the same is approved by the State Government as provided under sub-section (3) of Section 3 of the said Act. It was further held that until the order is approved by the State Government in exercise of its power under sub-section (3) of Section 3, the detaining authority who had issued the order of detention under sub-section (2) retains the power of entertaining a representation and to annul, revoke or modify the same as provided under Section 14(1) of the Act read with Section 21 of the Bombay General Clauses Act. It has further been
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 held that failure on the part of the detaining authority in a case where order of detention is issued under sub-section (2) of Section 3 to communicate to the detenu that he has a right to make a representation, constitutes an infraction of the rights guaranteed under Article 22(5), and as such, the detention becomes invalid on that score. This conclusion is based upon the ratio of the Constitution Bench decision of this Court in Kamleshkumar case [(1995) 4 SCC 51 : 1995 SCC (Cri) 643] even though in Kamleshkumar case [(1995) 4 SCC 51 : 1995 SCC (Cri) 643] the Court was considering a case of detention under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (for short "the COFEPOSA Act"). Following the opinion on the question of law referred, the Division Bench of the High Court having set aside the order of detention the State Government is in appeal before us.
38. Thus, the resultant legal position is, representation of the detenu must be considered by the Government after the Order passed under Section 3(2) of the Act and sent for confirmation within 12 days under Section 3(3) of the Act.
Before considering the representation, if an order is passed under Section 3(3) confirming order passed under Section 3(2),
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 such order has to be considered as invalid. Consequently the detenue is entitled to be released forthwith.
39. Further, as is contemplated under section 8(1) of the Act, the detenu has to utilize his right of representation at the earliest opportunity. If the detenue utilizes his right in filing such representation, the State Government is duty bound to consider the representation and pass the final order. Act also contemplates that detaining authority is has a duty to inform the detenue his right of representation. Any lapses in this regard on the part of detaining authority, detention order is to be held as bad in law as it would violate safeguard provided to a citizen under Article 22(5) of Constitution of India. In this regard, it is pertinent to note the principles of law enunciated in the case of State of Maharashtra vs. Santosh Shankar Acharya reported in (2000)7 SCC 463, referred to supra.
40. This would take us to one more important stage in deciding the validity and confirmation of detention order. How a representation should be made by the detenue? Is there any prescribed form for representation? Could it be on plain paper?
Who should provide necessary assistance to the detenue in filing a representation, are some of common question that
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 would usually crop up for consideration before the court.
Sufficient light in this regard is thrown by the Hon'ble Apex court in the case of Shalini Soni v. Union of India, reported in (1980) 4 SCC 544 referred to supra. Further, principles of law enunciated in Changamma vs. State of Karnataka reported in ILR 1990 KAR 3031 would establish that there is no rigid formula in order to qualify a communication as representation so long as it contains a demand or request for release in whatever form or language. The relevant portion of the judgment of Changamma's case reads as under:
15. In the matter of delay in considering the representation to release the detenu in Harish Pahwa's case [(1981) 2 SCC 710:AIR 1981 SC 1126.] the Supreme Court has held thus:
"We may make it clear, as we have done on numerous earlier occasions, that this Court does not look with ??? upon such delays when this liberty of a person is concerned. Calling comments from other departments, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital importance. We would emphasis that it is
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 the duty of the State to proceed to determine representations of the character above mentioned with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu."
In that case, a representation dated 16-5-1980 was handed over by the detenu to the Varanasi Jail. The State Government received it on 4-6- 1980. For two days, no action was taken in connection with it. On 6-6-1980 comments were called for from the customs authorities with regard to the allegations made in the representations and the comments were received by the State Government on 13-6- 1980. On 17-6-1980 the State Government referred the representation to the Law Department for its opinion which was furnished on 19-6-1980. The rejection of the representation was ordered by the State Government on 24-6-1980. It was held that there was no expeditous consideration of the representation and the order of detention was set aside on that ground alone. In the instant
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WP No. 103178 of 2023
case, the representation for releasing the
detenu has not been considered at all.
Therefore, we are of the view that this ground alone is sufficient to entitle the detenu to have the order of detention quashed.
41. Often there arises another important question for adjudication as to whether the detaining authority should mention any time limit when an order is passes under section 3(1) of the Act. Careful perusal of the act would contemplate that if an order is passed exercising the power under Section 3(1) of the Act, there is no requirement that the detention order should mention any period for which the order would be in force.
42. However, ignoring the statute, if any time limit is fixed when an order is passed under Section 3(1), such detention order is illegal as is held in the case of Deb Sadhan Roy V/s. State of West Bengal reported in (1972)1 SCC 308 and Micki Khan vs. State of West Bengal reported in AIR 1972 SC 2262. Relevant portions of the afore said cases are culled out hereunder for ready reference and they read as under:
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 Deb Sadhan Roy v. State of West Bengal, (1972) 1 SCC 308 "6. The learned advocate for the petitioner contends that the State Government must confirm the opinion of the Board that there is sufficient cause for the detention within three months from the date of detention and that confirmation should also be communicated to the detenu within that period. This submission is based on the analogy of the requirement of sub-section (2) of Section 12 where the State Government on receipt of the opinion from the Board that there is no sufficient cause for the detention has to revoke the order and direct the release of the detenu forthwith, which implies that the State Government should apply its mind immediately as soon as a report is received from the Board irrespective of whether in its opinion there is sufficient cause or not for the detention. The State Government he says has therefore to make up its mind to confirm the opinion and extend the period of detention immediately after the receipt of the report from the Board which under the provisions of the Act has to be within ten weeks from the date of detention and in any case not later than three months. On behalf of the State however it is strenuously contended that there is no warrant for this submission as neither the Act nor clause (4) of Article 22 of the Constitution enjoins on the State Government the duty to confirm the Board's report within three months much less the duty to communicate such confirmation to the detenu. Relying on the decision of this Court in Dattatraya Moreshwar Pangarkar v. State of Bombay [(1952) 1 SCC 372 : AIR 1952 SC 181 : 1952 SCR 612] he submits that all that is required is for the Board to submit its report within three months and
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 thereafter the State Government may confirm the opinion and extend the period within a reasonable time.
7. It may be pertinent to refer to clause (4) of Article 22 of the Constitution under which no law providing for Preventive Detention shall authorise the detention of a person for a longer period than three months unless a Board consisting of persons who have or have been or are qualified to be appointed as Judges of the High Court, as referred to above, has reported within three months that there is in its opinion sufficient cause for such detention. It is evident from this provision that a law for Preventive Detention up to three months can be made under clause (4) subject to the limitation contained in clauses (5) to (7) of the Article. If a longer period of detention is to be provided for the law must subject to clauses (5) to (7) make provision for a reference to a Board as provided in clause (4) and for it to report on the sufficiency or otherwise of the detention which should be within three months from the date of detention. This requirement however is not insisted upon in cases where a law is made under sub- clause (a) of clause (7) of the said Article. In cases where the law provides for a reference to the Board or the receipt of its affirmative opinion the initial detention is only tentative for three months and only when the Board reports that there is sufficient cause for detention that the question of confirmation and extension of the period beyond three months will arise. The mere fact that the provision of a law under Article 22(4) requires a reference to be made to the Board within a particular period or for the Board to make its report by a specified time is not enough. The State Government has to take action only after a report is received from the Board expressing its opinion as to the sufficiency or otherwise of the detention. If the opinion of the Board that there is sufficient cause is received after three months from the detention the detention will be illegal as it is a contravention of the
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 mandatory provision of clause (4). In cases where the report is received within three months that there is no sufficient cause for detention but no action is taken thereon by the State Government to release the detenu or where its opinion is that there is sufficient cause, the detenu is neither automatically released nor is the period of his detention extended. It is therefore a crucial requirement of the Constitutional provision that the appropriate Government has to take action on the report of the Board, because as we said on that action would depend the revocation of the order and his release or the continuance of the detention beyond three months. In other words even where the Board is of opinion that there is sufficient cause the State Government is not bound to confirm that opinion. It can notwithstanding that opinion revoke the order. No doubt such a power can be exercised even after the confirmation of the order but that is not to deny the State Government the power to revoke the order even before confirming it. Viewed from any angle it is essential that the appropriate Government should take positive action on the report of the Board which action alone determines whether the detention is to be terminated or continued. It would therefore prima facie appear that that action should be taken immediately after the receipt of the opinion of the Board or at any rate within three months from the date a person is detained. It is for this reason after the Constitution every legislation dealing with Preventive Detention has made specific provision for confirmation and continuance of detention in view of the Constitutional mandate contained in Article 22(4). A period within which the appropriate Government has to make a reference to the Board, the period within which the Board has to make a report on the sufficiency of the ground for detention is provided for which has been uniformly one month and ten weeks respectively. The period of ten weeks for the submission of
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 the report by the Board where Article 22(4) provides for twelve weeks is designdly fixed because that would give the appropriate Governments two weeks to confirm and extend the period or not to confirm. Of course the opinion of the Board need not necessarily be given on the last day of the expiry of the ten weeks. It is quite possible that this information may be submitted to the appropriate Government well within ten weeks. In such cases a question whether the confirmation and extension has to be made by the appropriate Government within a reasonable period may arise for consideration, but in any case failure to confirm and extend the period within three months will result in the detention becoming illegal the moment the three months period has elapsed without such confirmation. Any subsequent action by the appropriate Government after the three months cannot have the effect of extending the period of detention. This view of ours is further fortified by Section 13 of the Act where the maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under Section 12 shall be twelve months from the date of detention. This requirement would suggest that the extension of the period of detention beyond three months up to a maximum of twelve months is from the date of confirmation of the opinion of the Board which if unconfirmed would not extend the period beyond three months. If so at what point of time should that be confirmed? It would be meaningless to suggest that the confirmation of the Board's opinion can take place beyond three months when the period of detention has come to an end and has not been extended by the want of it. Looking at it in a different way what these provisions amount to is that no person can be detained for any period beyond three months or for any period thereafter up to twelve months unless the Board's opinion is confirmed within three months.
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8. A similar view has been taken by the several courts in this Country right from 1952 onwards on Section 11 and 11(A) of the Preventive Detention Act which is analogous to Section 12 and Section 13 of the Act. See Kaur Singh v. State [AIR 1952 Pep 134 : 1952 Cri LJ 1452] , Dhadhal Kanthad Valeg v. Saurashtra State [AIR 1953 Sau 138 : 1953 Cri LJ 1247] , Umed Singh Narubha v. State. [AIR 1953 Sau 51 : 1953 Cri LJ 503] A Bench of the Mysore High Court in Sangappa Mallappa Kodli v. State of Mysore [AIR 1959 Mys 7 : ILR 1957 Mys 874] referred to these decisions. The learned Advocate-General in that case had contended on behalf of the State as was contended in the case before us on behalf of the State of West Bengal that the confirmation mentioned in Section 11 of the Preventive Detention Act was a mere formality and became redundant in view of the fact that the Government had already approved of the order of detention, because the word "may" in Section 11 does not make the confirmation of the detention mandatory. It was further argued that there was nothing illegal in confirming the order of detention beyond the period of three months from the date of detention either under the Constitution or under the Act itself, because what the Constitution lays down is that unless the Board has made a report to the effect that there is sufficient cause for such detention within three months from the date of detention, there can be no detention of a person under any law for a longer period than three months and nothing more, but it does not however say that the order of confirmation has to be within three months from the date of detention. S.R. Das, C.J., rejecting this contention observed at p. 9:
"In my opinion having regard to the different provisions of the Preventive Detention Act, the order of confirmation which the Government is required to make under Section 11 of the Act has to be made within a period of three
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 months from the date of detention. In my opinion the contention of the petitioners on this part of their case finds support from the very sections of the Preventive Detention Act and particularly from the wording of sub-section (1) of Section 11 itself. That sub-section, to my mind, makes it clear that the confirmation order in question has to be made if the Government after receipt of the report from the Advisory Board decides to continue the detention and in view of the provisions of clause (4) of Article 22 of the Constitution such confirmation has to be made within three months from the date of detention."
The Calcutta High Court has recently construed the provisions of the Act Aswini Kumar Banerjee v. State [1970- 71 (Col. LXXV), Calcutta Weekly Notes, 866] which we are now construing on the question whether the confirmation under Section 12(1) should be made within three months from the date of detention. It considered the several cases to which we have earlier referred and held that where there is a specified time provided for in clause (4) of Article 22 of the Constitution of India the concept of reasonable time cannot be introduced in interpreting the provisions of sub-section (1) to Section 12 of the Act. The absence of a time-limit in express terms in the body of Section 12(1) of the Act does not render it to be analogous and that the Board cannot be equated with the State Government because it can only advise and not act by way of passing an order of detention or continuing it thereafter. This is left to the over-riding discretion of the State Government.
9. We agree with the views expressed in these cases."
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 In the case of Micki Khan V/s. State of West Bengal reported in AIR 1972 SC 2262 it is held as under:
2. The arrest of the detenus in each of these five cases was made on 13-4-71, 2-1-71, 30-1-71, 27-
2-71 and 17-4-71 respectively while the order of confirmation of the opinion of the Board that there was sufficient cause for detention was made on 16- 8-71, 6- 5-71, 27-7-71, 30-7-71 and 9-8-71 respectively. It will be seen that they Judgment pronounced today in Writ Petition No. 218 of 1971 that under the mandatory provisions of the Article 22 (4) of the Constitution not only should the report of the Advisory Board be received within 3 months from the date of detention but the confirmation and continuance must also be within three months. Inasmuch as the confirmation in all these cases has not been made within 3 months, the detention is not valid. Accordingly the Petitions are allowed and the petitioners are forthwith.
43. In the light of the above settled legal principles, when the material on record is appreciated, it is the experience of this Court that many of the orders of Preventive Detention are being set-aside only on the ground of technicality. Even though several judicial pronouncements
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 have cautioned the authorities not to commit technical mistakes while passing orders on Preventive Detention, for the reasons best know to the authorities, one or the other technical mistakes are committed by the authorities while passing Preventive Detention order, whereby, not only precious time of the Court is wasted, but also, the Preventive Detention orders are set-aside by the Courts only on technical reasons and same has not served the purpose and object of passing Preventive Detention order and in a given case, the person who according the authorities is dangerous to be in the Society would be walking away with order of quashing of Preventive Detention Order resulting in further damage to the Society at large.
44. On a conspectus of the authoritative pronouncements of the Hon'ble Apex Court, referred to supra, one can safely conclude that development of law in the field of preventive detention and to obviate short comings in the orders of Preventive Detention, it is just and necessary for this Court to issue following Guidelines which are only indicative and not exhaustive, to quell the possible technical mistakes whereby a culprit who would be otherwise required to be detained by
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NC: 2023:KHC-D:7555 WP No. 103178 of 2023 passing an order of Preventive Detention lest escape from the clutches of law.
GUIDELINES
(i) Preventive detention order to be issued based on subjective satisfaction of detaining authority.
(ii) Such satisfaction must be based on an apprehension that intended act would result in disturbance to public order
(iii) The intended act or specific activity must have an impact on the broader community or the general public, evoking feelings of fear, panic, or insecurity and not an act resulting in general disturbance to public tranquility.
(iv) Preventive detention order to be issued by the detaining authority independently by considering the imminent need for preventive detention.
(v) Past conduct which has become stale and mere pendency of criminal cases against detenue which are not so grave should not automatically make out a ground for passing preventive detention order.
(vi) Subjective satisfaction needs to be recorded by the detaining authority keeping in view the existence of a live and proximate link between the past conduct of detenue and the imperative need to detain him.
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(vii) Preventive detention order to be issued by detaining authority by proper application of mind to all relevant circumstances by indicating the grounds for preventive detention.
(viii) Preventive detention order to be issued on satisfaction of the detaining authority based on materials which are germane and having rational probative value.
(ix) Preventive detention order to be issued by exercising the power authorised by the statute for achieving the purpose for which it has been conferred.
(x) When Preventive detention order is issued by exercising the power under section 3(1) of the Act no time limit is to be fixed.
(xi) The grounds which would form the basis for passing an order of preventive detention should be informed to detenu in writing in the language known to detenu.
(xii) Such grounds should not be vague but must be precise, pertinent and relevant with sufficient clarity,
(xiii) The preventive detention order should clearly mention that the detenue has got a right of representation,
(xiv) If any such representation is received in the prescribed period, the authorities are bound to consider the representation properly before passing the order of confirmation of detention.
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(xv) Representation of the detenu must be considered by the Government after the Order passed under Section 3(2) of the Act and sent for confirmation within 12 days under Section 3(3) of the Act as failure to consider the representation and passing an order of confirmation would render the detention order invalid.
(xvi) Authorities at all level, should scrupulously follow the time line as provided under the statute while passing the order of detention and confirmation thereof.
45. In the case on hand, the District Magistrate has written that the 'detention order shall remain in force for not more than 12 days from this date unless in the meantime, it has been approved by the State Government'.
46. Such incorporation in the detention order has rendered the very detention order as illegal as the District Magistrate has no power to fix the time limit in the detention order as discussed supra.
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47. Therefore, the detention of the petitioner in Mangaluru Jail is to be termed as illegal detention.
Accordingly, a case is made out by the petitioner to seek for allowing the prayer in the writ petition as referred to supra.
48. Further, the detenu facing a criminal case is not a ground while passing the preventive detention order but the authority has to satisfy itself about the imminent threat if the preventive detention order is not passed against the detenu. Further, on perusal of the detention order, no proper reasons or grounds for passing the order of detention is forthcoming.
49. In view of the above discussion, following order is passed:
ORDER The writ petition is hereby allowed.
Impugned order challenged in this
petition is hereby quashed.
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WP No. 103178 of 2023
The detenu Shri.Y.B.Govind who is the
husband of the petitioner is ordered to be released forthwith if not required by the police in any other matter.
Learned Special Public Prosecutor and counsel for the petitioner is entitled for the copy of this order out of turn if applied.
Sd/-
JUDGE SH List No.: 2 Sl No.: 84