Karnataka High Court
Munuwar Hussain S/O M. Farooque, vs Government Of Karnataka on 11 February, 2010
Bench: Manjula Chellur, V.Jagannathan
1
IN THE PIIGB COURT OF KARNATAKA, BANGALORE
DATED THIS THE MT" DAY OF' FEBRUARY '20_1_{__}
PRESENT
THE HON'BLE MRSJUSTECE MANJULA é '
AND
THE HON'BLE MR.JUSTICE4V,5LTAGANVN';%T§iAN'3': ''
WPHC NO. 2009
BETWEEN: ' 1'
SRLMUNUWAR HUSSAIN
3/0 M;{3AE?..OC'QU'E.; '' . .
R/O ANJUM "NAs;;11'-aaA1-:'V _
SHAMSUDDIN RQA.D,»T.NAv§AYAT
C1C)LONY,ui?3'HA'I'KAL--.+--E~8-1__3:30 PETETEONER
(BY SR1.1<1R'AN s;J.AvALI;"'ADV0cATE FOR
SR.I;.§HA~NDRASE%E§§§RA $4., ADVOCATE)
:."'T'<3ov'§RN_MT;EN'T OP' KARNATAKA
' .__BY 981;. - $I33CRE'I'ARY
HOME i1¥EPAR'I'MEN'F
V1'£)HE;NA SOUDHA
.. VTLHBANVGALORE «W 560 001
' 'AA;3'.'*'Ai)DL. CHIEF SECRETARY AND
PRL. SECi?E'l'A§i'Y TO GOVT.
OF KARNATAKA,
HOME DEPARTMENT
VIDHANA SOUDHA
BANGALORE -- 560 09}
BY SRI.A.K.M.NAYAK
2
3. SENIOR SUPERINTENDENT
CENTRAL PRISON
BANGALORE .RESPON[}EN'I'S
(SRi.K.M.NATARAJ, ADDL. ADV. GENERAL AND
SRI.E.S.INDIRESH, ADDL. GOVT. ADVOCATE)
This WPHC filed under article 2226 '_
Constitution of indie praying to issue of
Corpus, direction declaring the H fioiorztion of
Sri.Mohammed imtiyaz Farooquemby' order No;jI~ID V' '
2009 dated 4.6.2009 (Annex11;:'o--A]'A as *i__i1t'3ga1_
abinitio. A' .. ~
This petition comir1g_""~on for oz:dors"".._ t'i'1é~s day;y
MANJULA CHELLUR 3., ma(ic:_ti1o following:
Tizo case is the bmther of detenu
Sri.:?¢'{o1}am'ii1o§1 The 2116* respondent ~
. . - }'*.11tho1"i{§'j)é1ssed order of detention in this case on 4 SCF' 2009 and the same came to be oefied L' cietonu on the very same day. Grounds of dotexifioiu are at Annexure-B. Accorciing to the petitioner, .t}:1oo""A_«orcier of detontion is bad: in law as several factors 'pertaining to this order of cietzntion would indicate that the said order is vitiated on the foliowing grounds:
(i) Delay in considexéng the representation of the éetenu on ":'.9.20(}9.
f
(ii) No application of mind by the Authority to the fact that then: xszyasj propensity of engaging any :"
prejudicial activities once the A the detenu was seized.::.; V ' _ u V
(iii) The Iepresentation cT1e'tei1-av ..i"T~A assistance of a :{w:;.:¢r 1§¢:'a£e Board was not eonsideieci.
(iv) Non«ap;31ic:;2tion of §as'sh:'g the order of detei1tjo11__ is not in conformity vzifii the Act.
Delay in 'ti_'x_:_.;v;_'_:1*e%:;:r£.Es«1Aé::t'faf:;io;1 of the qetenu:
o:f:;;,%§_'YAN.鮧YAN SUKUL v. STATE 01:' WEST 'e_ENGAL_'*§ga.:e'--.._:Ti9fz0 so 67 a judgement by (3onss3TVtutio§iz21_:V}3,ei1c]A1';. Vii: was held that the appropriate auffiority iszbouad""'io'Vgive an opportunity to the detenu 1:0 make. j>"1'e:s£:.}1tatio}:L and such repxesemzation has to be ee~1_§;s«ide;eeixe: the appropriate authority and the same is indepeeideat of the opinion expressed by the Advisoxy 35303111. A f_" §3i }:fii1ar1y, the appmpfiate authority ie. the Government has tjo exercise or base its opinion and judgement on the Vvenepzesentafion made by the cietenu before sending the case along with the detemfs Ieggresentation to the Advisory Board.
3. In the Case of KAMLESHKUMAR ISHWARDAS PATEL Versus UMON op' IND£A AND OTHERS -
(ca) 643 it was heid that in addition to his ri_jg1:t--5 _ repxveserztation to State Govemment or Centa::J.j'GoVej::1;me§it,*«.. he has a right under Article 22(5) of..tt:e said Ifigltt has to be informed to t§*3_e"':iete1*:1'1'u§- information of such valuable can detention order. Thezefole, the paste. the older of detention has the power .Qf1;ier. Hence, the consideration the detenu by the said as possible is of utmost impor1:a'd1z.oe.» is iethargic disposal of such pep3rese1.1tatto11,A tlte concerned authority, the order of " tévotxld detitlitely vitiatr: the prooeedizlgs. ' _ case of PABITRA N RANA Versus UMON OF Mora 2_tNi:$__C}THERS ~ 1980 sec: (o;~i.)450 even 1? days of unexptagined delay in considering the I'C}}I'€SCI1tatiO11 by " AAVzadf[:"prop1iate Government, the Apex Court held that the same V'wot11d vitiate the detention order resulting in the detention . . . A "order being void.
5. G21 perusal of the records, it is noticed tftat the older of detention of the Detaining Authority was. 4.6.2009. A repxesentation was given by V' 23.7.2099, one to the Advisory"AABda.«d'-<.a_u;c;.A§;1¢ rim ' Detaining Authority. The A. to .'v_--v_,<.;ive 2 u representations by the detelimjttisb based. on also Articie 19 of ttze of"'=Ind}ia. The ecmsiderafion of flze appropriate G0vemment'o17:t§1e '§.svV'V§'tz'1depen<i.ent of the opinion of the appropriate __ Consider his Iepresentation indepetridentlyt light of the opinion of the Actjvisoty Boa.rt1."'in thettpresent case, the éetention order is .;iatéq:,,,';;_5';2Q09 éfgkitthis Ifepzesentation is dated 23.7.2009. g'ITbVe considered the representation made to}: on '$009 and the Advisory Board gave its opinion on confuméng the detention of the detenu. In the '.§1§§3ent case, it is seen. that date of representation to Home Department is 24.7.2009 and the éate of rejection of the representation is 7.9.2009. The grounds of detention was served on the detenu on 8.5.2009. The Advisoxy ¥3oard's opinion dated 14.8.2009 was eommunieated to the etietenu 6 by the Detaining Authority on 29.8.2009. Thereafter, confirmatory order came to be passed on 29.8.200u9.',_tiy..the 13' respondent. So far as consideration of the made to the 13¢ pespondent -- appropriate teat:
rejected on 7.9.2009 after a}}owi1jtg deiajf from the date of receipt of paxawiee corn13«1en'tS' 133/'«"'tlie* sponsoring authority. The vefyitptiaet t11at.oi2A itseiftt a eonfirmation order.of.fieten'tion...'yvaS-qzuadet fo1*"a period of one year from 8.6.200?-gt' vgraé 'qieasoza. Why the appropxiate v"?}9v.2009 to reject the 1epre:§ent:efio§i."Vgf_:the"dete_nu.. f Therefore, the action or the pmcetinze Home Department :£.e. 1*' I'f':$::f)'C)'Ilt;i€I}t'V Jtliits ease would indicate that for about 38 ngepxeeetntation was just lying with the 1"
1*e$ponC2en't fanthority and there is no coordination or co» IA'elatioz1~_vt}?;ettveen the confirmation order and the eonsigietation of the representation. Therefore, there is an vjtgggjgdizxate delay in considering the representation of the Hkletenzx and mechanically passing rejection order on 7.9.200? would only indicate there is no application of mind at all. Therefore, the order of detention is vitiateti. 7 Hon application of mind by the detaining .-- tv of comgittigg similtgfr activities:
6. So far as this ground 0f eon :;§.;o};$1;cé:tj§:k. the fact about the absence Vof_VLi1'Ein;)pe:(A1.é'.ity 0.1;: 'bf the V L' detenu to repeat the a}iegedVAe-activities as €he..Apas§sport was seized, the learned couiisel-fcir mlies 01:1:
1. 2002 GULATI Versus e:§L;-ii AND ANOTHER;
2. ;',:f}H(§?V3H13A;"T.V'V:MUKESH 8!; 0923. Versus ei3\fERN as 0123.; and
3. _CrI.V' .'Fxvp§5t3aLilV/12009 (arising out of S.L.P. (Cr1.) V' ;'N;§.1,:6201/2i}09}-------'GIMlK PIOTR Versus STATE 01? TAMIL * " 'V V GRS.
7. gist of the above cases is detention law must be fellowed both substantively as Well as procedurally " 'because the object of such law is not to punish but to fifevent certam crimes. H" the appropriate detain" 113' g ' authexity is satisfied that with 3. View 1:9 prevent such person fiem carrying can any of the ofiensive activities enumerated therein, it is neeese-my to detain such person. The safisfaetiou of the detaining autherity is not a s11bject:ive one 9
9. According to the petitioner, when once the passpert of the detenu was seized, the detaining authority o11.ght to have considered the fact that there was "Ito possibility of repetition :31" such act by the detergtfi. the application of mind by the, »authoIi't3.dVi1s': Vt without considezing the possib:i1i1:y1'_'_'0:f'tV xepetittbztt ..VV:A{::..§.';l:e activities inspite of seizure 0f:the.. of Assistance of g V» A t V
10. So far as to 'd-secsiiiieéssietfiétraee of an advocate, as already stated in Q.'£3.1e»t'. Advisory Board for SmtetGo'erei'1:~3;(ie.dt~--if3 -net rejecting the representation seeking' 3S'SiSt3i1~C€.}" of lawyer alone is denied by the 'Ad.visoty'* V" As a matter of fact, anyone Could :vVfi,1_e detenu i.e. kith and kin or a close friend. T§1€I';€f¥I')§'§v,n not a case where there is denial of fair epportuxzitgk' 5:" §:>eing heard through the next friend of the Ad€¥fiI..1'L1;: Therefore, said contention of the petitiionefs 'eQd:1se} that :re3'eetion or non--coz1side;~ati013 of the request ta U __5give assistance of a lawyer vitiates the detexztion order is rejected.
10 Variance of the words user} in the detention. _or.de;f:
11. The next ground urged was "
detention was not in confoninity the x-¢o'rd:§: 355:1 me' Act. The learned Counsel relies or; the-foiioéwirigdoiiotionsiee
2. AIR 1966 so 740,»;.:2AM"'MA';~zoHA1§* \}*/s,._:f STATE or BIHAR AoV"A:§_c;T§£Eié;--- V :2. 1922 so 1759-%._~ Vv/s.H$S'i'A'"£'E or WEST BENoAIVg;_"'A._VV d
3. A1R3~1<;;92f31'sc ;§'v~AKSdfio3< V] 3. STATE or R. -'PRAKASH W 3. STATE or '' VV._1}§ARNArA''1kA.:\'':
d "12. ofdthe above cases is that if the order of ie'*.1:;ot in Conformity with the words in the Act, it demotion order. Strict compliance with the letter of '*.*.}_:_1e 1juie.ii'%3 {he essence of the maiter. If the words used in the o"n1_.»;§:~ of detention results in variance between the V."VV.AAacti\fz"ities complained of and the words used in the order of K detention, it would not be in co1:1:fo:m1ity with the provision or the clause under which the detention order was made. The words used in the order of detention should indicate that the authority passing the order was sure in his mind about the 11 pmeise grounds for detaining the detemz. and he should not mechanicaily or loosely use the words of the section. The order of detention must speak out the necessary words Why such order was made and it should not give scope_4wi:ong interpretation.
13. 01:}. perusal of the orderfof det:e_ntAion,' in the present case the order ofiA:'de'ee_ntioni'2t i%1Lr1e:::t13:§;Lf£_ reads as under:
_ "osoeR.', Ia, Additional Chief if-Eeoretaiyii 'to:e«.iGot?ernment, Home Eepartxsent, Gofiemfient E{.si_fnstaka speeiaiiy empowered "'1inde1.; .':,~'1eV(_f:"ii'»(1)'V'oi". the Conservation of Foreign V iiéixciiange anti"Pievent:ion of Smuggiing Activities »5ct,'_~_is'~74 (Central Act 52 of 1974) am satisfied . a View to preventing Shri Mohammed Farooque from acting in any manner ~~ from smuggling of Indian currency notes, it is it ' neoessaiy to make the foliowing order.
2. Now, therefore, in exercise of the powers Conferzed by Section 3(1) and Section 3(})(i) of the Conversation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Centrai Act 52 of 19374), I hereby direct that said Shri Mohammad Emtiyaz Farooqne be 12 detained and kept in custody in Central Prison, Bangalore, on the grounds annexed herewith"
14. Section 3(1) has two parts, first part conservation of augmentation of foreign exchaiitgev "
second one is pzevention of smnggii11g._ The Woids deed. the order of detentiojz would izidicaite fiie"
Section with regard to conseiivaiion of'foreig11i excli;-3:o.ge*'iwas * i applied to the second portion of 'Sectioop to. In other words, the did not even understand that SectiotiV3{.].):'co11te:3iiiate§ ipiievention of two acts, one '-- iazcit which is prejudicial to the conservatioii ia:1dii'a1iigu1eti_t:1tion of foreign exchange and the second one waS"to« yrevent a person from smuggiing, etc. In ,the, yrevseiitcase, the petétioaefs case was that this detenu Indian currency. T}Z1€I'€f0I'€, it has to be 2111 of detention, preventing him from smuggiing Jiindian ii(:1.I.I'i'6I1£{3}' and it cannot be an order preventing him acting in any manner from smuggling of Indian M ..._<:i11'rency. Therefore, notvunderstanding of the provisions of Section 3(1) or quoting wrong words leading to wrong meaning by the Detaining Authority wouid only indicate non.- application of mind while passing the detention 0I'd€:1".
\\f\ 13 Under these circumstances, in the present case, the order of detention gets vitiated.
15. Then coming to the pmeedural aspect) regard to the seriousness of the crime iiberty of the detenu W331 be at stake' w.hen'_'enee'e exfier bf V' detention is made. Therefme, A' dete13.tiei1 e<3I;cer_{1ing the iiberty of a is "made, "to be- V strict eomgliaglee of the pr0eedut}§:.witt1 prepervelppéieafion of mind to arrive at j eenelusion by the Detaining Authority. Stageé Ké1_re.'V'e:feated in oréer to give eppQItti Iti't5,*--«v._tbV.the V'd.e_ten.u to make representation to diiferefit the authority which passes detention "Ft1erefo1€'e, having reganl to the fact that the to give representation to the State Government, Detainixzg Authority, Government, Advisory Board, it would only Ineaii vtfiat each. one has to act independerltly of the other the appropriate Government has to consider the iepresentation independently prier to the opinian of the Advisory Boani and also subsequent to the opinion of the Advisory Board in the tight of the opinien of the Advisory Board. A11 these precautions are indicated having regaml to 14 the fact that the liberty of a person is at stakes. T'1%ie=:;éf«:§i*eu, the procedure has to be complied strictly and ' mechanical Way of dealing with or' 'd consideration sf representation would result in making the ord.ei*~.Qf defenses
16. Therefore, in ._fpr tI«lie"reéisons and discussions mentioned 'aV1's't:A)'ve','v 'Qf detention in Nc:.HD 4 sea V' The said order of void and the deteml sri.Mohammeq~'1ms3§§§;;;:§'é;§¢oqu'e'.V;:¢s§'wesV:6 be set at liberty forthwith. Theieféfe,' Corpus is issued declaring the detefitiezi. Imtiyaz Farooque as iiiegal void.
petition is aliiowed.
Acc€)mdiI1g];;.,' office is directed to intimate the ' 'e%.$r1cei'ned authoflty to release the detenu forthwith. RV