Karnataka High Court
Misiriya vs Government Of Karnataka on 6 February, 2020
Author: Ravi Malimath
Bench: Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 6TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE M.I.ARUN
WRIT PETITION (HC) NO.138 OF 2019
BETWEEN:
MISIRIYA
WIFE OF JAMSHEER N.T.,
AGED ABOUT 26 YEARS,
ARAFA COTTAGE, PATHIRIYAD AMSOM,
PARAMBAYI DESOM,
P.O. MAMBARAM, KANNUR.
...PETITIONER
(BY SRI ANIL D. KAITHAKKAL, ADVOCATE FOR
SRI NAVEEN KUMARA P., ADVOCATE)
AND:
1. GOVERNMENT OF KARNATAKA
BY PRINCIPAL SECRETARY,
HOME DEPARTMENT,
VIDHANA SOUDHA
BENGALURU-560 001.
2. ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT OF KARNATAKA,
2
HOME DEPARTMENT,
VIDHANA SOUDHA,
BENGALURU-560 001,
BY SHRI RAJNEESH GOEL.
3. SENIOR SUPERINTENDENT
CENTRAL PRISON,
BENGALURU-560 100.
...RESPONDENTS
(BY SRI S.V. GIRIKUMAR, ADDITIONAL
GOVERNMENT ADVOCATE)
THIS WPHC IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A
WRIT IN THE NATURE OF HABEAS CORPUS OR ANY OTHER
APPROPRIATE WRIT, ORDER OR DIRECTION DECLARING
THE DETENTION OF SHRI NATADE TEEKUKAL JAMSHEER
(N.T.JAMSHEER), SON OF VELIYA AREPEAL AHMED
(V.A.AHMED), BY ORDER HD 2 SCF 2019 DATED
21.02.2019 (ANNEXURE-A) AS ILLEGAL AND VOID
ABINITIO.
*****
THIS WPHC COMING ON FOR ORDERS THIS DAY,
RAVI MALIMATH J., PASSED THE FOLLOWING:
ORDER
The petitioner is the wife of the detenu. They are citizens of India. She is interested in the well being of her husband. That the respondent - State passed an order of preventive detention dated 21-2-2019 in exercise of the 3 powers conferred under Section 3(1)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. There was a direction to place him under detention forthwith. The translated copies of the documents and the order were also were furnished to him in the language known to him that is, in Malayalam. Thereafter, he was taken into custody on 10-8-2019. Thereafter, the instant petition was filed.
2. The learned counsel for the petitioner primarily contends that there is a huge delay in the arrest of the detenu. The detention order was passed on 21-2-2019 and he was arrested on 10-8-2019. There is no explanation offered by the respondents for the said delay.
3. Reliance is placed on the Judgment of the Hon'ble Supreme Court in the case of MANJU RAMESH NAHAR vs. UNION OF INDIA AND OTHERS reported in (1999) 4 SCC 116, wherein the Hon'ble Supreme Court held that in view of the State not taking proper steps 4 under Section 7 of the Act and the unexplained delay in arresting the detenu, the detention order itself becomes illegal. Various grounds are also urged in support of his case. Primarily we are concerned with the initial ground urged with regard to the delay in arresting the detenu.
4. The respondent - State have filed a memo on behalf of DRI. They have stated in the memo, the various steps taken by them in order to serve summons under Section 108 of the Customs Act, 1962 on the detenu. Since the detenu was not available a notice was served on him and various other acts were done. They have also filed an affidavit of the Deputy Superintendent of Police, CID, wherein he has narrated the various steps taken for arresting the detenu. Therefore, the learned Government Advocate submits that adequate reasons have been assigned to explain the delay.
5. In support of his case, he relies on the Judgment of the Hon'ble Supreme Court in the case of 5 VINDO K.CHAWLA vs. UNION OF INDIA AND OTHERS reported in (2006)7 SCC 337 with reference to para-16. Therein the Supreme Court held that where a person himself evades service of the detention order, it is not open for him to contend that in view of the long period which has elapsed between the offending activities and the actual arrest and detention, the vital link had snapped and there was no ground for actually detaining him. Hence, he pleads that the petition be dismissed.
6. Heard learned counsels.
7. It is undisputed that subsequent to the order of detention passed on 21-2-2019 the detenu was arrested on 10-8-2019. Section 7 of the COFEPOSA Act prescribes the procedure to be followed by the authorities when the detenu absconds or conceals himself. Section 7 reads as following:-
"7. Powers in relation to absconding persons.-
(1) If the appropriate Government has reason to believe that a person in respect of whom a detention order has been made has absconded or is 6 concealing himself so that the order cannot be executed, the government may-
(a) make a report in writing of the fact to a Metropolitan Magistrate or a Magistrate of the first class having jurisdiction in the place where the said person ordinarily resides; and thereupon the provisions of sections 82,83,84 and 85 of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply in respect of the said person and his property as if the order directing that he be detained were a warrant issued by the magistrate;
(b) by order notified in the Official Gazette direct the said person to appear before such officer, at such place and within such place and within such period as may be specified in the order; and if the said person fails to comply with such direction, he shall, unless he proves that it was not possible for him to comply therewith and that he had, within the period specified in the order, informed the officer mentioned in the order of the reason which rendered compliance therewith impossible and of his whereabouts, be punishable with imprisonment for a term which may extend to one year or with fine or with both.
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under clause (b) of sub-section (1) shall be cognizable."7
Apparently, none of that has been done. The said ground is answered by the learned Government Advocate to contend that the appropriate Government has not taken a decision as to whether the detenu is absconding or not. We are of the view that such an explanation by the State is unacceptable. After the issuance of an order of preventive detention the detenu requires to be arrested forthwith. If not, the procedure under Section 7 of the COFEPOSA Act requires to be complied with. They have failed to do so. The contention of the learned Government Advocate runs contrary to the facts of the case. Therefore, such a contention cannot be accepted.
8. The Hon'ble Supreme Court in the Judgment in the case of MANJU RAMESH NAHAR vs.UNION OF INDIA AND OTHERS reported in (1999)4 SCC 166, have clearly stated that when the respondents have not furnished the information in detail of any steps to execute the order of preventive detention, the detention itself becomes illegal. That if persons who are responsible for execution of the 8 order sleep over the order and do not execute the same, it would reflect upon the satisfaction of the detaining authority and would be exhibitive of the fact that the immediate necessity of passing that order was wholly artificial or non-existent. The same set of facts are present herein also. Except narrating the various steps taken by him to go to the house of the detenu and meet his wife etc., there is nothing tangible that has been done by the State.
9. The case relied upon by the learned Government Advocate in the case of VINOD CHAWLA vs.UNION OF INDIA AND OTHERS reported in (2006) 7 SCC 337, in our considered view, runs contrary to the interest of the State. In para-16, it was indicated that an application under Section 7(1)(b) of COFEPOSA Act was published in the Official Gazettee on 23-3-1997 and also in a leading English and Hindi newspapers on 4-10-1997. An application under Section 7 (1)(a) of the Act was also moved before the Court of ACMM for initiating proceedings 9 under Section 82 and 83 of Cr.PC. where proclamation was made on 3-12-1997 asking him to appear on 9-1-1998 and an order under Section 83 of Cr.PC was also issued. Therefore, the Hon'ble Supreme Court held that the contention with regard to the delay in detaining the detenu cannot be accepted. However, in the instant case, the same has not happened. No effort is made by the State under Section 7 of the COFEPOSA Act. There is no publication or proclamation. Therefore, in the absence of complying with the provisions of Section 7 of the Act, the further detention of the detenu becomes illegal.
10. The further reliance by the respondent - State is on the Judgment in the case of BHAWARLAL GANESHMALJI vs. STATE OF TAMIL NADU AND ANOTHER reported (1979) 1 SCC 465. This also is in favour of the detenu. In that case also, the accused was found to be absconding. However, action was taken pursuant to Section 7 of the said Act. He was proclaimed as a person absconding under Section 82 of the Criminal Procedure 10 Code. The proclamation was published and a reward was announced. However, in this case nothing seems to have been done. The provisions of Section 7 have not been followed. There is no effort made by the State. Even the reasoning assigned by them cannot be accepted. It cannot be said that there was any effort by the State in making any arrest. The contention of the learned Government Advocate that the State has to be satisfied that he is absconding cannot be accepted, especially in view of the fact that he was arrested six months after the order of detention. Hence, following the aforesaid decisions, the petition requires to be allowed. Under these circumstances, no further contentions are advanced by the petitioner's counsel. For the aforesaid reasons, we pass the following:-
ORDER Writ Petition Habeas Corpus No.138 of 2019 is allowed. The further detention of the detenu is held to be illegal.11
The detenu, namely, Sri Natade Teekukal Jamsheer (N.T.Jamsheer), Son of Sri Veliya Arepeal Ahmed (V.A.Ahmed), is directed to be released from custody forthwith, if he is not required in any other case/s.
Registry is directed to communicate the operative portion of this order to the Jail Authorities, Central Prisons, Parapanna Agrahara, Bengaluru, forthwith, for necessary action.
Sd/-
JUDGE Sd/-
JUDGE Rsk/-