Karnataka High Court
Smt. Tarannum C Inamdar vs The Deputy Commissioner And on 2 June, 2021
Bench: S.G.Pandit, M.G.S.Kamal
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF JUNE 2021
PRESENT
THE HON'BLE MR.JUSTICE S.G.PANDIT
AND
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
WRIT PETITION (HABEAS CORPUS) NO.200014/2020
Between:
Smt. Tarannum C Inamdar
W/o Chand Peera
Aged about 34 years
R/o Sakaf Roza Athani Galli
Bijapur-586101
... Petitioner
(By Sri Sandesh Chouta, Senior Counsel for
Sri Lakshmikanth G., Sri Pavankumar and Sri Sunil Kumar,
Advocates)
And:
1. The Deputy Commissioner
and District Magistrate
Vijayapura-586103
By Sri P. Sunil Kumar
2. State of Karnataka
By Secretary
Home Department (Law & Order)
Vidhana Soudha
Bengaluru-560 001
2
3. Senior Superintendent
Central Prison
Darga Jail Road
Sankh - Bijapura Rd
Ajame Daraga, Vijayapura-586103
... Respondents
(By Smt. Archana P. Tiwari, AGA)
This Writ Petition (Habeas Corpus) is filed under
Article 226 of the Constitution of India, praying to declare
the detention of Sri Chand Peera @ Ramli S/o Mohammad
Gouse Inamdar by order dated 16.10.2020 in No.MAG/CR-
48/2020-21 Annexure-A passed by respondent No.1, order
dated 22.10.2020 in No.MAG/CR-48/2020-21, Annexure-B
passed by respondent No.1 and approved by the respondent
No.2 by order No.HD 100 SST 2020, Bengaluru dated
23.10.2020 Annexure-C, HD 100 SST 2020, Bengaluru
dated 02.11.2020 Annexure-D approved by respondent No.2
as illegal and void abinitio, etc.
This petition having been heard and reserved on
27.05.2021, coming on for pronouncement of order this day,
S.G.Pandit, J., made the following:
ORDER
The petitioner Smt. Tarannum C. Inamdar W/o Chand Peera is before this Court under Article 226 of the Constitution of India praying for a writ of Habeas Corpus for the following relief:
(a) To declare the detention of Sri Chand Peera @ Ramli S/o Mohammad Gouse Inamdar by order dated 16.10.2020 in No.MAG/CR-48/2020-21 3 Annexure-A passed by respondent No.1, order dated 22.10.2020 in No.MAG/CR-48/2020-21, Annexure-B passed by respondent No.1 and approved by the respondent No.2 by order No.HD 100 SST 2020, Bengaluru dated 23.10.2020 Annexure-C, HD 100 SST 2020, Bengaluru dated 02.11.2020 Annexure-D approved by respondent No.2 as illegal and void abinitio;
(b) Pass such other order or orders declaring the order of detention, the order of approval and the order of confirmation as illegal and void abinitio;
(c) Pass such other order including release of the detenu forthwith;
(d) Award cost.
During the pendency of the writ petition, by order bearing No.HD 100 SST 2020 dated 02.12.2020 the second respondent State Government, in exercise of its power under Section 13 of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum- Grabbers and Video or Audio Pirates Act, 1985 (for 4 short the '1985 Act') extended the period of detention by 12 months. The said order is placed on record along with memo dated 21.04.2021.
2. The brief facts of the case are that the husband of the petitioner Chand Peera was taken to custody vide detention order dated 16.10.2020 passed under Section 2(g) of the 1985 Act. The detention order passed by the first respondent was for a period of 12 days and the same was approved by the State Government by order dated 23.10.2020. Yet by another order dated 22.10.2020 the first respondent extended the period of detention by another 12 days. The extension of detention was approved by the State Government by order dated 02.11.2020. Thereafter, the matter was placed before the Advisory Board as required under Section 10 of the 1985 Act. The Advisory Board submitted its report by letter dated 26.11.2020. Thereafter, the State Government under 5 order dated 02.12.2020 in exercise of its power under Section 13 of the 1985 Act ordered detention for 12 months. The order of detention reveals that detention order against the detenue is passed on the basis of 12 cases registered against the detenue which relate to the offences said to have been committed by detenue such as gambling, robbering, extortion, attempt to murder, intimidation, forming an unlawful assembly and assaulting the public with deadly weapons and causing injuries, robbery and threats and illegal possession of arms. The said cases have been registered against the detenue during the period between 1996 to 2020 within the jurisdiction of Gandhi Chowk and Gol Gumbaz Police Station limits. The cases registered against the detenue taken note of by the first respondent while passing the detention order are as follows:
i. Crime No.23/1996 under Section 392 IPC.
Said case relates to incident that occurred within the jurisdiction of Gandhi Chowk 6 Police Station. Charge sheet has been filed and after trial, detenue has been acquitted. ii. Crime No.27/2007 under Section 87 of Karnataka Police Act. Said case relates to incident that occurred within the jurisdiction of Gandhi Chowk Police Station. Charge sheet has been filed and after trial, fine has been imposed on the detenue. iii. Crime No.87/2012 under Sections 307, 324 read with Section 34 IPC. The said case relates to incident that occurred within the jurisdiction of Gandhi Chowk Police Station. Charge sheet has been filed and after trial, detenue has been acquitted.
iv. Crime No.221/2016 under Sections 143, 147, 148 120(B), 302, 323, 324, 504, 506 read with Section 149 IPC and Sections 25 and 27 of the Indian Arms Act, 1959. The said case relates to incident that occurred within the jurisdiction of Gandhi Chowk police station. Charge sheet has been filed and case is pending trial.
v. Crime No.279/2017 under Sections 25(1) and 29(a)(b) of the Indian Arms Act, 1959. The said case relates to incident that occurred within the jurisdiction of Gandhi 7 Chowk police station. Charge sheet has been filed and case is pending trial.
vi. Crime No.50/2019 under Section 302 read with Section 34 IPC. The said case relates to incident that occurred within the jurisdiction of Gandhi Chowk police station. Charge sheet has been filed and case is pending trial.
vii. Crime No.31/2019 under Sections 143, 147, 120(B), 302 & 149 IPC. The said case relates to incident that occurred within the jurisdiction of Golbumbaz police station. Charge sheet has been filed and case is pending trial.
viii. Crime No.151/2020 under Sections 323, 341, 504, 506 read with Section 34 IPC.
The said case relates to incident that occurred within the jurisdiction of Gandhi Chowk police station. Case is under investigation.
ix. Crime No.201/1996 under Section 110(a) Cr.P.C. The said case relates to incident that occurred within the jurisdiction of Gandhi Chowk police station. Case is pending.
x. Crime No.44/2007 under Section 109Cr.P.C. The said case relates to incident 8 that occurred within the jurisdiction of Gandhi Chowk police station. Case is pending.
xi. Crime No.108/2012 under Section 107Cr.P.C. The said case relates to incident that occurred within the jurisdiction of Gandhi Chowk police station. Case is pending.
xii. Crime No.25/2018 under Section 107Cr.P.C. Said case relates to incident that occurred within the jurisdiction of Gandhi Chowk police station. Case is pending. The above detention orders are assailed in this writ petition praying for release of the detenue, the husband of the petitioner herein on various grounds.
3. Heard the learned Senior Counsel Sri Sandesh Chouta for Sri Laxmikanth G., learned counsel for the petitioner and learned AGA Smt. Archana P. Tiwari for the respondents. Perused the entire records.
4. Learned Senior Counsel Sri Sandesh Chouta contends that the detention of the detenue is 9 wholly illegal and submits that the mandatory provisions of the 1985 Act have not been followed. Learned Senior Counsel mainly urges the following two grounds:
a. That the first respondent who passed the order of detention failed to furnish the grounds of detention as required under Section 8 of the 1985 Act.
b. The first and second respondents failed to consider the representations submitted by the detenue as required under the 1985 Act.
5. The learned Senior Counsel invites attention of this Court to the impugned order of detention dated 16.10.2020 (Annexure-A) and submits that the first respondent is not sure as to whether the detenue is detained as a 'goonda' or as a 'gambler'. Further, he points out that the impugned order states that the original basis and reasons are enclosed to the order, but he submits that except furnishing paper book 10 containing pages 1 to 183, no other document containing reasons recorded by the first respondent is furnished to the detenue. Learned Senior Counsel refers to Section 8 of the 1985 Act and submits that the authority empowered to pass detention order shall, as soon as may be, but not later than 5 days from the date of detention, communicate the grounds on which the detention order has been made and shall afford him the earliest opportunity of making representation against the order to the State Government. But as required, no reasons or grounds on which detention order is passed is neither communicated nor furnished to the detenue. In fact, he submits that the detenue had submitted representation dated 19.10.2020 which was forwarded by the Jail Authority under their letter dated 22.10.2020 and representation dated 31.10.2020 which was also forwarded to the State Government under covering letter dated 05.11.2020 of the Superintendent, Central Prison, Vijayapura. But those representations 11 are not considered. Further he submits that the first and second respondents were expected to consider the representation of the detenue before referring the matter to Advisory Board. In support of his contention the learned Senior Counsel relies upon the decision of the Division Bench of this Court reported ILR 2019 KAR 1543 (Smt. Jayamma vs. Commissioner of Police, Bengaluru) wherein, this Court has laid down detailed guidance as to the procedure to be followed by the Detaining Authority while passing detention order. Learned Senior Counsel also relies on decisions of the Hon'ble Apex Court reported in (1982) 3 SCC 440 (Ibrahim Ahmad Batti alias Mohd. Akhtar Hussain alias Kandar Ahmed Wagher alias Iqbal alias Gulam vs. State of Gujarat and others) and 1989 Supp (2) SCC 155 (Smt. Dharmista Bhagat vs. State of Karnataka & another) to contend that communication of grounds of detention and furnishing of copy of vital documents is a must.
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6. Per contra, learned AGA defends and justifies the orders of detention passed against the detenue. Learned AGA referring to the counter affidavit filed by the first respondent Deputy Commissioner submits that the grounds of detention was furnished to the detenue in the form of paper book containing pages 1 to 183, which is received by the detenue. Further, the learned AGA submits that as the detenue indulged in illegal activity such as wrongful restraint, stabbing, threatening the public by showing deadly weapons, extortion, dacoity, rioting gambling and other heinous criminal activities and thereby disturbed the public peace and tranquility, it had become necessary for the first respondent to take into custody the detenue by passing detention order under the provisions of the 1985 Act. Further, the learned AGA submits that the second respondent State Government is empowered under Section 13 of the 1985 Act to detain the detenue for a period of 12 months from the date of detention. 13 Thus, the learned AGA prays for dismissal of the writ petition.
7. On careful consideration of the rival contentions and on perusal of the entire material on record, the point that arises for consideration is as to whether the impugned orders of detention are liable to be set aside and whether the detenue is entitled for release? The answer to the above point is in the affirmative and the detenue is entitled for release.
8. Article 21 of the Constitution of India guarantees protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to procedure established by law. Right to life and liberty is one of the basic human rights and the State has no authority to violate that right except in accordance with law or by following the procedures contemplated under particular enactment. Likewise, Article 22 of the Constitution of India guarantees 14 protection against arrest and detention in certain cases. Article 22 (5) requires communication of grounds when a person is detained in pursuance of an order of preventive detention by the authorities making such order.
9. In the case on hand, the detenue is detained under the provisions of the 1985 Act. Some of the relevant provisions which are necessary for deciding the above point are as follows:
Section 2(f) defines expression "gambler" to mean a person, who commits or abets the commission of any offence punishable under Chapter VII of the Karnataka Police Act, 1963 (Karnataka Act 4 of 1964) including an offence of gambling relatable to "matka" and punishable under the said Chapter.
Section 2(g) defines expression "goonda" to mean a person who either by himself or as a member of or 15 leader of a gang, habitually commits or attempts to commit or abets the commission of offences punishable under Chapter VIII, Chapter XV, Chapter XVI , Chapter XVII or Chapter XXII of the Indian Penal Code (Central Act XLV of 1860).
Section 3 of the 1985 Act empowers to make detention order which reads as follows:
"3. Power to make orders detaining certain persons.- (1) The State Government may, if satisfied with respect to any bootlegger or drug-offender or gambler or goonda or Immoral Traffic Offender or Slum-Grabber or Video or Audio pirate that with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such persons be detained.
(2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in 16 writing, direct that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (1), exercise the powers conferred by the sub-section :
Provided that the period specified in the order made by the State Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.
(3) When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government.17
Section 8 of the 1985 Act requires disclosure of grounds of order of detention to persons affected by the order, which reads as follows:
"8. Grounds of order of detention to be disclosed to persons affected by the order.-
(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the State Government.
(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.
Section 12 of the 1985 Act provides for action upon report of Advisory Board.
10. A cumulative reading of the above provisions would reveal that, Section 3 provides for passing detention order by the State Government or by the 18 District Magistrate or Commissioner of Police. When the order of detention is passed either by District Magistrate or Commissioner of Police, the approval of the State Government would be necessary within the time prescribed therein. Section 8 requires communication of grounds on which the detention order is passed to the detenue as soon as may be, but not later than 5 days from the date of detention, affording the detenue earliest opportunity of making representation to the State Government. Section 12 provides for action on the report of the Advisory Board by the State Government, either to confirm the detention order or to revoke the order of detention.
11. The Hon'ble Apex Court in Ibrahim Ahmad Batti's case (supra) and in Smt. Dharmista Bhagwat's case (supra) has categorically held that, it is imperative that the detaining authority has to serve the grounds of detention including relevant documents which led to 19 passing of the detention order. The Co-ordinate Bench of this Court in Smt. Jayamma's case (supra) was examining somewhat similar case of a detenue who was not furnished with relevant documents with translation and non-consideration of representation, has laid down guidelines for the detaining authority for passing preventive detention order, which reads as follows:
"49. Before parting with this judgment, though we cannot exhaustively laid down meticulous guidelines, we prefer to lay down certain guidelines which may be helpful to the Government and the detaining authority while initiating the proceedings under the Preventive Detention Laws. According to us, the following are the few guidelines framed for passing the preventive detention order under the Act, for the benefit of the state holders:
(1) Detention order in writing, soon after it is passed, should be communicated to the detenu.
The detaining authority should also communicate the grounds of detention comprising of basic facts, and relied upon materials, in their entirety with documents, statements, or other materials, 20 not later than 5 days from the date of passing of the detention order.
(2) If two or more grounds are relied upon by the authority, each of the grounds shall be separately and distinctly mentioned in the Detention order, as each one of the ground if valid is sufficient to validate the order even if other grounds are vitiated or invalidated for any reason. (3) Every Detention order shall be supplied with the translated legible version of all the scripts and documents relied upon, in the language he understands to make an effective representation. (4) Detaining authority shall specifically disclose with reference to each of the grounds for detention, which are all the documents relied upon and which are the documents casually or passingly referred to in the course of narration of facts (including the bail orders) and shall furnish the relied upon documents along with the detention order. If the detaining authority prefers to furnish the referred documents also, those materials also to be furnished in compliance with the first and third guidelines noted supra. 21 (5) So far as bail applications and orders, and violation of bail conditions are concerned, if the detenu is on bail, if the bail application and bail orders, conditions therein are with reference to any vital ground or vital materials, placing of those materials though may not always be mandatory but such requirement depends upon the facts and circumstances of each case, which the detaining authority and later Courts have to very carefully examine whether non placing of those materials in any way prejudiced the detenu. However failure to furnish any or all the referred documents shall not invalidate the order of Detention.
(6) If the order of detention is challenged, the courts also shall have to independently consider each ground, to ascertain on each ground whether the order is sustainable or not with reference to the guidelines herein refereed. (7) If any representation is submitted by the detenu before the Detaining Authority, addressing the same to the Detaining Authority, government, or to Advisory Board, irrespective of the fact that, to whom it is addressed, the same shall be as early as possible considered by the appropriate Government, before sending the papers to the 22 Advisory Board. If the appropriate Government revokes the detention order and directs release of the detenu, there arises no question of sending the case papers to the Advisory Board.
(8) The Government shall within three weeks from the date of the detention order, place the order before the Advisory Board along with all the materials, grounds, representation if any made by the detenu, along with any report by such officer made under sub-sec (3) of section 3 of the Act.
(9) The Advisory Board shall maintain records disclosing the date of receipt of the detention order and other materials, including the representation of the detenu. The Advisory Board shall consider all the materials placed before it, including the representation if any of the detenu, if necessary after calling for such further information as it deems it necessary, and if the person concerned desires to be heard, after hearing him in person and then send its report to the Government within Seven Weeks from the date of detention of the person concerned. (10) After receipt of the report from the Advisory Board, the Government before passing any order 23 of confirmation under section 12 of the act shall consider the representation of the detenu, if not already considered by it for reasons that, it was either directly submitted before the advisory board or the sub delegated Authority or received later after the Advisory Board's report. Therefore, it is mandatory that appropriate Government shall consider the representation of the detenu, at least once at any stage before passing the final order of confirmation.
(11) The consideration of the representation if received before confirmation, order at any stretch of imagination, cannot be done after the confirmation of the detention order. It amounts to no consideration in accordance with law and procedure.
(12) If the Advisory Board has sent a report, stating that there is sufficient cause for the detention of the person concerned the Government, may confirm or revoke the said order. If the report says that there is no sufficient cause for detention, the Government, shall revoke the detention order and cause the person to be released forth with. It has no discretion to detain such person any more for any reason on the basis of such detention order.
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(13) If the order is revoked either under section 12 or under section 14 as the case may be, or the period of detention under the order is fully undergone by the detenu, in such an event the detaining authority shall forth with release such person from detention. Further the detaining authority shall not pass any extended or further detention order on the same grounds. However, if any subsequent order of detention has to be passed, it shall be by a separate order on fresh grounds after again following the procedure, but not on the grounds on which earlier order was passed."
12. We have carefully perused the order of detention at Annexure-A dated 16.10.2020. First portion of the order indicates that the detenue is a goonda as defined under section 2(g) of 1985 Act, whereas the last portion of the order the detenue Chand Peera is described as gambler. The detention is for a period of 12 days. The order of detention specifically states that original basis and reasons are enclosed to the order, but the enclosure containing the reasons for 25 detention is not forthcoming along with the order of detention nor the respondents have made available along with the counter affidavit nor is found in the records. Para-3 of the counter affidavit filed by the first respondent Deputy Commissioner reads as follows:
"3. I state that, the detenue was furnished with a detail proposal for detaining him under Karnataka Prevention of Dangerous Activities of Boot-leggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum- Grabbers and Video or Audio Pirates Act, 1985. (Karnataka Act No.12 of 1985) The said document consists of 183 pages. The same has been received and acknowledged by the detune on 16.10.2020."
13. Reading of the above portion of the affidavit abundantly makes it clear that the detenue was provided with documents consisting of 183 pages which is made part and parcel of the affidavit. We have gone through the paper book containing pages 1 to 183. The paper book contains the correspondences between 26 the Deputy Superintendent of Police, Vijayapura Sub- Division to the Superintendent of Police, Vijayapura, from Circle Inspector, Vijayapura City Circle to the Superintendent of Police, Vijayapura and letter from Superintendent of Police, Vijayapura district to the Deputy Commissioner and District Magistrate Vijayapura district. Further it contains the case papers relating to the criminal cases against the detenue stated in the above portion of the order. It would not contain the reasons recorded by the detaining authority based on the material before it. The detaining authority is required to record concise reasons for detaining a person under the provisions of the 1985 Act and such reasons shall be communicated to the detenue within the time as required under Section 8 of the 1985 Act. The mere furnishing of a paper book containing 183 pages would not constitute reasons. The detaining authority based on the said material is expected to record reasons as to why it is necessary to detain the 27 detenue in custody. Unless the reasons are recorded and communicated to the detenue, there would not be compliance with Section 8 of the 1985 Act. The detaining authority, on scrutiny of material on record, shall record subjective satisfaction, as to the necessity to detain a person under preventive detention. The detenue must be informed about the existence of exceptional circumstances for detention so as to make effective representation. The right to representation is provided to the detenue to enable him to demonstrate that no such exceptional circumstances exist or the reasons recorded are false. On examination of the material on record and on consideration of the rival contentions of the parties, we are of the considered view that the detenue was not communicated nor furnished with the reasons for his detention.
14. It is settled law that the law governing preventive detentions is law of procedural safeguards. 28 The authorities exercising power under the law of Preventive Dentition have to ensure strict compliance of the procedural safeguards provided there under. Any infraction of the safeguards mandated would result in invalidation of the order of detention. The 1985 Act is one such law of Preventive Detention. The said Act lays down procedural safeguards to be strictly complied with. Section 3 of the Act which provides power to make order of detention postulates subjective "satisfaction" of the authority before directing detention of certain persons referred to therein. The emphasis with regard to "satisfaction" is not to be understood lightly or casually. It encompasses formation of grounds, examination of grounds duly supported by the material which would satisfy the authority to pass the order of detention. The burden of establishing the factum of satisfaction is on the authority passing the order of detention. This can be ascertained and evaluated from the order of detention which would 29 invariably state the grounds, reasons and conclusion reflecting the application of mind arrived at by the authority before passing the order of dentition.
15. "Grounds" means the conclusion drawn by the authorities from the facts and particulars which led to the authority to pass the order of detention. Mere furnishing of the material which supposedly formed the basis of the purported ground without explicitly formulating the grounds and without explicitly providing the conclusion thereon cannot be termed as grounds contemplated under law. In the instant case, admittedly even as evident from the statement of objection filed by the respondent - State, it is clear that on 16.10.2012 the respondent authority had merely furnished a paper book of 183 pages consisting of certain materials in the nature of certain case papers and correspondence. The order of detention cryptically refers to the said material. However, nothing is 30 explicitly stated in the order of detention indicating formulation of grounds, examination of grounds and conclusion arrived at leading upto satisfaction of the authority warranting passing of the order of the detention. This in our opinion amounts to infraction and violation of the statutory safeguards provided under the 1985 Act.
16. It is also clear from the records made available the detenue had repeatedly requested on 09.10.2020, 31.10.2020, 09.11.2020 addressed to the Deputy Commissioner and District Magistrate, Vijayapur, the Under Secretary, Govt. of Karnataka and to the Advisory Committee, respectively seeking furnishing of grounds of detention enabling him to make effective representations. Though the said requisitions were duly forwarded by the Jail Superintendent to the aforesaid authorities namely, the Deputy Commissioner, the Under Secretary to Govt. of 31 Karnataka and to the Advisory Committee, there is no material placed before this court to evidence that the aforesaid request of the detenue for furnishing of the grounds were complied with. On the contrary, it is seen that by letter dated 03.11.2020, the office of the Deputy Commissioner has reiterated that it had furnished all the supportive documents along with the order of detention dated 16.10.2020 and that the same had been duly received by the detenue under his signature on 16.10.2020 instant. Needless to mention that the letter dated 16.10.2020 merely refers to paper book from Page 1 to 183 which do not contain grounds, conclusion and the satisfaction resulting in detention of the detenue as mandatorily required under Sections 3 and or under Section 8 of the 1985 Act. Even in the statement of objection filed by the respondent, except reiterating and enlisting the material contained in the paper book, nothing else has been produced. This in our view, amounts to gross violation of the safeguards provided 32 under Sections 3 and 8 of the 1985 Act. Non- furnishing of the grounds enabling the detenue to make effective representation has resulted in gross miscarriage of justice.
17. We have gone through the records of the Advisory Board and it is unfortunate to note that the detenue's representation made to the Advisory Board is not brought to the notice of the Advisory Board nor it is placed in the file relating to the Advisory Board. Thus, it is to be noted that Advisory Board had no occasion to consider the representation of the detenue.
18. Procedural safeguard provided under Article 22 (5) of the Constitution of India and Section 8 of the 1985 Act having not been followed, the order of detention becomes illegal and the detenue is entitled for release.
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19. For the reasons stated above, the writ petition is allowed. The orders bearing No.MAG/CR-48/2020- 21 dated 16.10.2020 (Annexure-A), No.MAG/CR- 48/2020-21 dated 22.10.2020 (Annexure-B), No.HD 100 SST 2020 dated 23.10.2020 (Annexure-C), No.HD 100 SST 2020 dated 02.11.2020 (Annexure-D) and the order bearing No.HD 100 SST 2020 dated 02.12.2020 filed along with a memo dated 21.04.2021 are quashed and the detenue shall be released forthwith.
The Registry shall communicate the operative portion of the order forthwith to the detaining authority to facilitate the release of the detenue.
Sd/-
JUDGE Sd/-
JUDGE swk