Karnataka High Court
Mrs. Farhana vs The State Of Karnataka on 10 August, 2021
Equivalent citations: AIRONLINE 2021 KAR 2390
Bench: Aravind Kumar, N S Sanjay Gowda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF AUGUST, 2021
PRESENT
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
W.P.H.C. NO.51/2021
BETWEEN:
MRS. FARHANA
W/O SYED NAZEEM
AGED ABOUT 38 YEARS
R/A NO.35, VENKATESHPURAM
PILLANNA GARDEN 2ND STAGE
BENGALURU - 560 045.
...PETITIONER
(BY SRI. ANEES ALI KHAN, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY ITS SECRETARY
HOME DEPARTEMENT
VIDHANA SOUDHA
BANGALORE - 560 001.
2. THE COMMISSIONER OF POLICE
NO.1, INFANTRY ROAD
BANGLORE - 560 001.
3. THE SUPERINTENDENT
BANGALORE CENTRAL PRISON
PARAPANA AGRAHARA
BANGALORE - 560 100.
...RESPONDENTS
(BY SRI. V.S. HEGDE, S.P.P-II)
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THIS W.P.H.C. IS FILED UNDER ARTICLE 226 OF
CONSTITUTION OF INDIA PRAYING TO DECLARE THE
DETENTION OF SYED NAZEEM S/O BYL NAWAB BY ORDER
NO.HD/BCP/CRM/PIT-NDPS/DTN/2020 DATED 30.09.2020
VIDE ANNEXURE-A PASSED BY RESPONDENT NO.2 AND
CONFIRMED BY RESPONDENT NO.1 BY ORDER NO.HD 34-
PND-2020 DATED 22.12.2020 VIDE ANNEXURE-E, AS
ILLEGAL AND SET THE DETENUE AT LIBERTY.
THIS PETITION HAVING BEEN HEARD AND
RESERVED, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY ARAVIND KUMAR J, MADE THE
FOLLOWING:
ORDER
Petitioner who is the wife of Sri Syed Nazeem (detenue) has preferred this petition to declare the detention order No.02/BCP/CRM/PIT-NDPS/DTN/2020 dated 30.09.2020 (Annexure-A) passed by second respondent and confirmed by first respondent by order No.HD 34 PND 2020 dated 22.12.2020 (Annexure-E) as illegal and to set the detenue at liberty.
2. Petitioner has contended that Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short 'PITNDPS Act') empowers the authorities specified thereunder to 3 pass detention order and the Commissioner of Police namely, second respondent is not entitled to pass the detention order dated 30.09.2020 (Annexure-A). It is further contended that there cannot be any delegation of power to the Commissioner of Police to pass an order and as such, order of detention is illegal and liable to be set aside.
3. Further grounds urged in the writ petition is that under Section 9(b) of the PITNDPS Act, 'appropriate Government' has to refer the matter to the Advisory Board within five weeks and records do not disclose as to who has referred the matter to the Advisory Board. It is further urged that detenue was produced before the Advisory Board through video conference for the first time on 25.11.2020 i.e., after expiry of seven weeks and five days as the detenue was under detention since 01.10.2020 and on account of reference not being made to the Advisory Board within five weeks, same is liable to be set aside. Grievance of the petitioner is that order of detention has been mechanically passed and there is 4 non-application of mind and there is no material to indicate that respondents have gone through the entire material and derived substantive satisfaction before passing the detention order. Hence, on these grounds and amongst others as urged in the petition, it has been prayed to set the detenue at liberty by quashing the impugned orders.
4. On being notified, respondents have entered appearance and filed their statement of objections. Refuting the contentions raised in the petition, it has been contended that there is no error much less illegality in the impugned orders passed and as such, they have sought for dismissal of the petition. It is contended that under Section 3 of PITNDPS Act, Officers competent to pass orders have been specified and on the basis of report dated 11.09.2020 submitted by the Police Inspector, K.G.Halli Police Station, Commissioner of Police, Bengaluru has passed an order under Section 3(1) of the PITNDPS Act. It is also contended that by virtue of power conferred under Section 3(1) of PITNDPS 5 Act, appropriate Government has empowered the Officers specified in the notification dated 30.01.2020 (Annexure- R2) and by virtue of the same, second respondent has passed the order of detention under Section 3(1). He would also submit that appropriate Government by communication dated 08.10.2020 (Annexure-R4) has intimated the Central Government under Section 3(2) about the order of detention passed against the detenue. It is also contended that there is due compliance of Section 9(b) of PITNDPS Act and hence, respondents have prayed for dismissal of the petition. Affidavit dated 14.07.2021 of the Additional Chief Secretary, Department of Home came to be filed on 15.07.2021 contending interalia that notification dated 30.01.2020 (Annexure-R2) has been issued in exercise of the power conferred under Section 3(1) of PITNDPS Act which empowered the second respondent to pass the detention order. It is also contended that second respondent is of the rank of Principal Secretary to Government and he is in the pay scale of Principal Secretary of Government and as such, he is competent to pass the detention order 6 under Section 3(1) of PITNDPS Act. It is also contended that Under Secretary is the junior most Officer of the 1st rung of the Secretariat and is an Officer within the definition of the 'appropriate Government' as defined under Section 2(a) of PITNDPS Act as stipulated under the Karnataka Government Secretariat Manual of Office Procedures (Revised) 2005 and said Officer is authorised to issue orders in the name of the Governor of Karnataka under Rule 19 of the Karnataka Government (Transaction of Business) Rules, 1977. Hence, contending that in terms of Section 9(f) and Section 11 of PITNDPS Act, order of detention dated 22.12.2020 (Annexure-E) issued by the said Officer is in conformity with Rule 19 and as such, they have prayed for dismissal of the petition.
5. Sri Anees Ali Khan, learned Advocate appearing for petitioner has reiterated the grounds urged in the writ petition and has sought for petition being allowed by relying upon the following judgments:
1) 2000 CRI.L.J. 805
STATE OF M.P. vs BHUPENDRA SINGH
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2) Order dated 19.12.2007 passed in
WPHC No.100/2007.
6. Per contra, Sri V.S.Hegde, learned SPP-II appearing for the State has reiterated the contentions raised in the statement of objections and has sought for dismissal of petition.
7. Having heard the learned Advocates appearing for parties, we are of the considered view that following point would arise for consideration:
"Whether impugned order dated
30.09.2020 (Annexure-A) passed
by second respondent and order dated 22.12.2020 (Annexure-E) confirmed by first respondent suffers from any illegality or not?
8. In the background of grounds urged in the writ petition, we are of the considered view that it would be apt and appropriate to extract the relevant Sections of PITNDPS Act namely, Sections 2(a), 3 and 9 pressed into service and they read:
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"2. Definitions.- In this Act, unless the context otherwise requires,-
(a) "appropriate Government"
means, as respects a detention order made by the Central Government or by an officer of the Central Government, or a person detained under such order, the Central Government, and as respects a detention order made by a State Government or by an officer of a State Government, or a person detained under such order, the State Government;
3. Power to make orders detaining certain persons.- (1) The Central Government or a State Government, or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner) that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary so to do, make an order directing that such person be detained.
(2) When any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order.9
(3) 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.
9. Advisory Boards.- For the purposes of sub-clause (a) of clause (4) and sub-clause
(c) of clause (7) of Article 22 of the Constitution,-
(a) the Central Government and each State Government shall, whenever necessary, constitute one or more Advisory Boards each of which shall consist of a Chairman and two other persons possessing the qualifications specified in sub-clause (a) of clause (4) of Article 22 of the Constitution;
(b) save as otherwise provided in Section 10, the appropriate Government shall, within five weeks from the date of detention of a person under a detention order, make a reference in respect thereof to the Advisory Board constituted under clause (a) to enable the Advisory Board to make the report under sub-clause (a) of clause (4) of Article 22 of the Constitution;
(c) the Advisory Board to which a reference is made under clause (b) shall after considering the reference and the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the 10 purpose through the appropriate Government or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard in person, after hearing him in person, prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within eleven weeks from the date of detention of the person concerned;
(d) when there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board;
(e) a person against whom an order of detention has been made under this Act shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential;
(f) in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its 11 opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith."
9. A plain reading of Section 3 of PITNDPS Act would indicate that any Officer of State Government not below the rank of a Secretary to that Government, specially empowered for the purposes of said Section may if satisfied with respect to any person (including a foreigner) that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary so to do, can make an order directing that such person is to be detained.
10. Sub-section (2) of Section 3 of PITNDPS Act mandates that when the order of detention is made by a State Government or by an Officer empowered by the State Government, then, in such an event, the State Government is required to send a report in respect of the order so made to the Central Government within 10 days. Sub-section (3) of Section 3 mandates that for the 12 purposes of clause (5) of Article 22 of Constitution of India, communication to a person detained in pursuance of a detention order, the grounds of which the order has been made has to be made as soon as may be after detention, but ordinarily not less than five days and in exceptional circumstances for the reasons to be recorded in writing, not later than fifteen days from the date of detention.
11. On such order of detention being passed under Section 3(1) and same being executed, has to make a reference in respect of such detention order within five weeks from the date of detention to the Advisory Board constituted under clause (a) of Section 9 to enable such Advisory Board to make a report under sub-clause (a) of clause (4) of Article 22 of the Constitution of India. The Advisory Board to which a reference is made under clause (b) shall after considering reference and the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any 13 person and if in any particular case, Advisory Board considers it essential so to do or if the person concerned desires to be heard in person, after hearing him in person, prepare its report specifying its opinion as to whether or not there is sufficient case for the detention of the person concerned and submit a report to the appropriate Government within 11 weeks from the date of detention of the person concerned.
12. Under clause (f) of Section 9, the appropriate Government is empowered to confirm the detention order and continue the detention of the person so detained for such period as it thinks fit, if opinion of the Advisory Board so indicate and in the event of Advisory Board opining there is no sufficient cause for detention of the person concerned, appropriate Government is required to revoke the detention order and cause the person to be released forthwith.
13. Thus, emphasis in clause (f) of Section 9 is to the expression 'appropriate Government' which will have to confirm the order of detention if the opinion rendered 14 by the Advisory Board is to the effect there is sufficient cause for the detention of such person. As noticed herein above, appropriate Government has been defined under clause (a) of Section 2 of PITNDPS Act and a plain reading of the above provision would indicate that appropriate Government means as respects a detention order made by a State Government or by an Officer of a State Government or the State Government itself. In other words, order of detention when passed by the State Government, it has to be necessarily by an Officer of the State Government who is not below the rank of a Secretary. When this provision is read along with clause
(f) of Section 9, it would clearly indicate that where Advisory Board under clause (c) of Section 9 prepares a report and submits the same to the appropriate Government by opining there being sufficient cause for detention of such person, then, 'appropriate Government' would require to confirm the detention order. Clause (a) of Section 2 defines 'appropriate Government' to mean an Officer of the State Government or the State Government itself.
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14. Now turning our attention to the facts on hand, we notice that order dated 30.09.2020 (Annexure- A) has been passed by the Commissioner of Police, Bengaluru city. Sub-section (1) of Section 3 empowers any officer of the State Government not below the rank of the Secretary to that Government specially empowered for the purpose of sub-section (1) of Section 3 to pass an order or the State Government itself to pass the order. In the instant case, the State Government, by virtue of the powers conferred under Section 3(1) has empowered the Officers specified thereunder namely, (i) Commissioner of Police and (ii) Range Inspector General of Police. Said Officers being specially empowered for the purposes of sub-section (1) of Section 3 by the State Government to pass orders under Section 3(1) , it cannot be gainsaid by the petitioner that Commissioner of Police is a delegate of the State Government or the State Government has abdicated to exercise its power and there has been delegation of powers. As such, contention raised in that regard cannot be accepted. 16
15. That apart, document No.1 annexed to the affidavit dated 14.07.2021 filed by the Additional Chief Secretary, Department of Home would also clearly indicate that Commissioner of Police, Bengaluru is of the rank of Principal Secretary to Government drawing the payscale equivalent to the Principal Secretary namely, at Rs.1,82,200-2,24,000, Level - 15 as indicated in the notification No.G.S.R.870(E) dated 08.09.2016. Thus, Additional Director General of Police and Commissioner of Police, Bangalore city are of the rank of a Principal Secretary to Government and they are competent to pass the order under Section 3(1) of PITNDPS Act as they are specially empowered for the purposes of said Section by the appropriate Government.
16. As already noticed herein above, clause (f) of Section 9 of PITNDPS Act mandates that appropriate Government may confirm the detention order in every case where Advisory Board has reported that in its opinion there is sufficient case for detention of a person. Clause (a) of Section 2 of PITNDPS Act which defines the 17 expression "appropriate Government" would indicate that insofar as the detention order made by a Government, same is to be confirmed by such appropriate Government or by an officer of the State Government. In exercise of the powers conferred by clauses (2) and (3) of Article 166 of the Constitution of India, for convenient transaction of the business of Government of Karnataka, Rules known and called as 'The Karnataka Government (Transaction of Business) Rules, 1977 has been made. Under Rule 2(e) of the said Rules, word 'Secretary' has been defined to mean and include Under Secretary apart from others as enumerated thereunder. Rule 19(1) of the said Rules empowers the Under Secretary amongst other Officers to authenticate the orders or instruments made and executed in the name of Governor of Karnataka. Said Rule reads:
"19.(1) Orders and instruments made and executed in the name of the Governor of Karnataka, shall be authenticated by the signature of a Principal Secretary, a Secretary, an Additional Secretary, a Special Secretary, a Joint Secretary, a Deputy Secretary, an Under Secretary, a Desk Officer or any other officer holding these posts on ex-18
officio basis or by such other officer as may be specially empowered in that behalf by the Governor in the manner specified below, and such signature shall be deemed to be the proper authentication of such order or instrument.
By order and in the name of the Governor of Karnataka, (signature) Name and designation of the Officer authorised to sign."
17. Thus, under Secretary of the State Government being empowered to issue confirmation of detention order in terms of Section 9(f) read with Section 11 of PITNDPS Act, has issued the impugned order dated 22.12.2020 and there is no infirmity in that regard. As such, contention raised in that regard stands rejected.
18. The chronology of dates commencing from date of order of detention till the date of report of the Advisory Board received by the State Government is enumerated in the following tabular column. 19 Sl.No. Particulars Annexures if Date any 1 Order of detention A 30.09.2020 2 Detenue taken to Nil 01.10.2020 custody 3 Order of detention Nil 01.10.2020 served on the detenue 4 Report of detention order R4 08.10.2020 forwarded to Central Government 5 Reference 27.10.2020 received by Nil Advisory Board 6 First meeting of 25.11.2020 Advisory Board Nil 7 Second meeting of Nil 04.12.2020 Advisory Board 8 Report of the Advisory Board Nil 11.12.2020 received by the State Government As per the mandate of clause (b) of Section 9, reference by the appropriate Government to the Advisory Board is required to be made within five weeks from the date of detention of a person. When five (5) weeks period is reckoned from date of detention order i.e., 01.10.2020, it would expire on 05.11.2020. In the instant case, the detenue was detained on 01.10.2020 and reference has 20 been made by appropriate Government within five weeks and reference so made by State Government has been received by the Advisory Board on 27.10.2020 which is well within the period of five weeks prescribed under clause (b) of Section 9 of PITNDPS Act. Clause (c) of Section 9 of PITNDPS Act mandates that report of the Advisory Board has to be submitted to the appropriate Government within 11 weeks from the date of detention of the person concerned. Thus, if the period of 11 weeks is reckoned from 01.10.2020, it would expire on 17.12.2020. In the instant case, report of the Advisory Board has been forwarded and received by the appropriate Government on 11.12.2020 which is well within the period of 11 weeks prescribed under clause (c) of Section 9 of PITNDPS Act. Hence, contention of the petitioner raised in this regard stands rejected.
19. For the reasons aforestated, we are of the considered view that there is no infirmity in the impugned orders. Accordingly, point formulated herein above is answered in the negative.
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20. Resultantly, we proceed to pass the following:
ORDER (1) Writ petition is dismissed.
(2) Detention order No.02/BCP/ CRM/ PIT-NDPS/DTN/2020 dated 30.09.2020 (Annexure-A) passed by second respondent and order No.HD 34 PND 2020 dated 22.12.2020 (Annexure-E) passed by first respondent are affirmed.
SD/-
JUDGE SD/-
JUDGE *sp