Karnataka High Court
Makuko Chukwuka Muolokwo, vs State Of Karnataka on 3 July, 2020
Equivalent citations: AIRONLINE 2020 KAR 1319, 2020 (3) AKR 623
Bench: Chief Justice, Nataraj Rangaswamy
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2020
PRESENT
THE HON'BLE MR. ABHAY S. OKA, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY
WRIT PETITION (HC) NO.32 OF 2020
BETWEEN:
MAKUKO CHUKWUKA MUOLOKWO,
S/O JOSEPHAT MUOCOKWU,
AGED ABOUT 37 YEARS,
NATIVE - OWERRI, ANAMBRA,
LAGOSCITY, NIGERIA,
NO.29, GROUND FLOOR,
4TH CROSS, LAKSHMAIAH GARDEN,
KOGILU AGRAHARA,
BANGALORE - 560 064
... PETITIONER
(BY SHRI NISHIT KUMAR SHETTY - ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS SECRETARY
HOME DEPARTMENT,
VIDHANA SOUDHA,
BENGALURU - 560 001.
2. THE COMMISSIONER OF POLICE,
BENGALURU CITY,
INFANTRY ROAD,
BENGALURU - 560 001.
2
3. THE CHIEF SUPERINTENDENT,
CENTRAL PRISON,
PARAPPANA AGRAHARA,
BENGALURU - 560100.
... RESPONDENTS
(BY SHRI V.S. HEGDE - SPP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN
THE NATURE OF HABEAS CORPUS OR WRIT OR ORDER OR
DIRECTION OF APPROPRIATE NATURE AND QUASH THE ORDER
OF DETENTION DATED 16.03.2020 IN NO.01/BCP/CRM/PIT-
NDPS/DTN/2020 (ANNEXURE-A) PASSED BY THE RESPONDENT
NO.2 AS ILLEGAL. A WRIT IN THE NATURE OF HABEAS CORPUS
BY QUASHING THE FURTHER ORDER DATED 27.05.2020 PASSED
BY THE RESPONDENT NO.1 IN NO.HD 01 PND 2020 (ANNEXURE-
E). A WRIT OF DIRECTION DIRECTING THE RESPONDENT NO.3
TO RELEASE THE PETITIONER FORTHWITH. ISSUE SUCH
OTHER RELIEF/S AS IT DEEMS FIT TO GRANT IN FAVOUR OF
THE PETITIONER BY THIS HON'BLE COURT IN VIEW OF THE
FACTS AND CIRCUMSTANCES OF THE CASES.
THIS WRIT PETITION HAVING HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT,
THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT
By this writ petition under Article 226 of the Constitution of India, the petitioner has sought a writ of Habeas Corpus. The petitioner has prayed for quashing the order of detention passed against him on 16th March, 2020 by the Commissioner of Police, Bengaluru city, in purported exercise of the powers under the provisions of Section 3 of the Prevention of Illicit Traffic in 3 Narcotic Drugs and Psychotropic Substances Act, 1988 (for short, 'the said Act of 1988').
2. The impugned order of detention was served to the petitioner on 17th March, 2020. The second respondent (for short, 'Detaining Authority') addressed a letter on 18th March 2020 to the Additional Chief Secretary, Government of Karnataka, Home Department for seeking approval to the impugned detention order and for submitting the same to the Chairman and the members of the Advisory Board constituted under Section 9 of the said Act of 1988. On 6th May 2020, a representation was submitted by the petitioner to the Chairman of the Advisory Board through the Jail Superintendent of the Central Prison, Bengaluru. On 8th May, 2020, the Advisory Board heard the petitioner through video conferencing. A report was submitted on 19th May, 2020 by the Advisory Board and the Government of Karnataka confirmed the order of detention on 27th May, 2020.
3. The learned counsel appearing for the petitioner submitted that on 6th May 2020, the petitioner submitted his representation to the Advisory Board against the order of detention. He pointed out that said representation was submitted through the Jail 4 Superintendent of the Central Prison, Bengaluru. He submitted that the State Government was fully aware of the said representation, as can be seen from a copy of the representation produced at Annexure-R12 to the statement of objections filed on behalf of the Detaining Authority. Annexure-R12 is the representation dated 6th May, 2020 addressed to the Chairman of the Advisory Board by the Chief Superintendent, Central Prison, Bengaluru. He submitted that there is an endorsement of the Section Officer of the State Government on the said letter of having received the same on 7th May, 2020. He submitted that the Apex Court, in the case of Smt. Gracy -vs- State of Kerala and another1, has laid down that even if there is a representation made by the detenue addressed to the Advisory Board, the appropriate Government is under obligation to consider the same independent of the opinion of the Advisory Board and if the appropriate Government fails to do so, it will be a violation of fundamental rights conferred on the petitioner under clause (5) of Article 22 of the Constitution of India. He submitted that similar view has been taken by the Apex Court in the case of Moosa Husein Sanghar -vs- State of Gujarat and others2. He would, 1 (1991) 2 SCC 1 2 (1993) 1 SCC 511 5 therefore, submit that continuation of detention of the petitioner has been vitiated.
4. The learned State Public Prosecutor-II submitted that the decision of the Apex Court in the case Smt. Gracy (supra) has been subsequently explained by a coordinate Bench of the Apex Court in the case of R. Keshava -vs- M.B. Prakash and others3. He submitted that the Apex Court had held that in a given case, if a representation is not addressed by detenue to the State Government or a request is not made to the State Government to consider the representation made to the Advisory Board, the failure of the Government to consider the representation is neither unconstitutional nor illegal. He also relied upon the decision of the Apex Court in the case of Vijay Kumar -vs- Union of India and others4. Lastly, he relied upon the decision of the Apex Court in the case of Union of India and another -vs- Harish Kumar5. The learned State Public Prosecutor would therefore submit that as the decision rendered by the Apex Court in the case of Smt. Gracy (supra) has been explained by a coordinate bench of the Apex Court in the case of 3 (2001) 2 SCC 145 4 (1998) 2 SCC 57 5 (2008)1 SCC 195 6 R. Keshava (supra), what binds the Court is the authoritative pronouncement of law in the case of R. Keshava. He submitted that in the present case, there is a failure on the part of the petitioner to forward his representation to the State Government or even to make a request to the State Government to independently consider the representation made to the Advisory Board. The sum and substance of his submission is that there is no violation of constitutional safeguards on the part of the State Government and no interference is called for. He submitted that considering the materials against the petitioner and his propensity, a writ Court should not interfere with the impugned order of detention.
5. We have carefully considered the submissions. Firstly, before considering the legal issue, it is necessary to consider a few factual aspects of the case. The representation dated 6th May 2020, made by the petitioner-detenue to the Chairman of the Advisory Board, was admittedly forwarded by the Chief Superintendent of Central Prison Bengaluru to the Hon'ble Chairman of the Advisory Board on the same day along with a covering letter. A copy of the said letter dated 6th May, 2020 is at Annexure-R12 to the statement of objections filed on behalf of 7 the 2nd respondent-Detaining Authority. There are two endorsements appearing on the left-hand side below the contents of the letter. When we made query to the learned State Public Prosecutor about the second endorsement of 7th May, 2020 appearing on the letter, he submitted that the said endorsement is by a Section Officer of the Government. Thus, a copy of the representation addressed to the Chairman of the Advisory Board was received by the State Government, which is produced at Annexure-R12 to the statement of objections filed by the Detaining Authority. To the same statement of objections, a letter dated 8th May, 2020 (Annexure-R13) is annexed, which is addressed by the Under Secretary to the Government, Department of Home Affairs to the Additional Chief Secretary of the Government informing the Additional Chief Secretary to produce the petitioner-detenue before the Advisory Board for conducting enquiry through video conferencing. It is further stated in the said letter that an officer of a rank of the Deputy Commissioner of Police who is well conversant with the facts of the case should be directed to be remain present before the Advisory Board.
8
6. We have perused the report of the Advisory Board dated 19th May, 2020. It records that one Sri. K.R. Jain, the Deputy Commissioner of Police, Bengaluru had participated in the proceedings of the Advisory Board. The Detaining Authority, in the present case, is the Commissioner of Police of Bengaluru city. Thus, the State Government was made aware of the representation made by the petitioner-detenue to the Advisory Board, as a copy thereof was received by a Section Officer of the State Government and the said representation was placed before the Advisory Board during its meeting in presence of a police officer who is subordinate to the Detaining Authority. Therefore, apart from the fact that the representation was received by a Section Officer of the Government on 7th May, 2020, the Deputy Commissioner of Police working under the control of the Detaining Authority was aware of the said representation made by the petitioner on 6th May, 2020.
7. Now, we turn to the legal position. In the case of Smt. Gracy (supra), the challenge before the Apex Court was to the order of detention passed under the said Act of 1988 by the Detaining Authority, which was confirmed by the Central Government, after considering the opinion of the Advisory Board. 9 The stand taken by the detenue before the Apex Court was that it was the duty of the Central Government to independently consider the representation made by him to the Advisory Board. The stand specifically taken by the Central Government before the Apex Court which is noted in paragraph 5 of the said decision is that there was no obligation on the part of the said Government to consider the representation made by the detenue to the Advisory Board inasmuch as the representation has not been addressed to the Central Government. After considering well known decision of its Constitution Bench in the case of K.M. Abdulla Kunhi -vs- Union of India6, the Apex Court noted the principles laid down in the case of Abdulla Kunhi (supra) and held that the obligation on the part of the Government to consider the representation of the detenue is different from the obligation on the part of the Advisory Board to consider the representation at the time of giving hearing to the detenue and that the Government has to consider the representation on its own without being influenced by any such views of the Board. In paragraph 7 of the decision rendered in Smt. Gracy (supra), the Apex Court 6 (1991) 1 SCC 476 10 recorded the submission of the learned Solicitor General which reads thus:
"7. The learned Solicitor General, however, contended that in the present case there being no representation addressed to the Central Government, the only representation made by the detenu being addressed to the Advisory Board during pendency of the reference, there was in fact no representation of the detenu giving rise to the Central Government's obligation to consider the same. The question is: Whether this contention can be accepted in the face of the clear mandate in Article 22(5) of the Constitution?"
While answering the above submission and the question formulated by it, the Apex Court, in paragraphs 8 and 9 of Smt. Gracy (supra) held thus:
"8. It is undisputed that if there be only one representation by the detenu addressed to the detaining authority, the obligation arises under Article 22(5) of its consideration by the detaining authority independent of the opinion of the Advisory Board in addition to its consideration by the Advisory Board while giving its opinion. In other words, one representation of the detenu addressed only to the Central Government and not also to the Advisory Board does not dispense with the requirement of its 11 consideration also by the Advisory Board. The question, therefore, is: Whether one of the requirements of consideration by government is dispensed with when the detenu's representation instead of being addressed to the government or also to the government is addressed only to the Advisory Board and submitted to the Advisory Board instead of the government? On principle, we find it difficult to uphold the learned Solicitor General's contention which would reduce the duty of the detaining authority from one of substance to mere form. The nature of duty imposed on the detaining authority under Article 22(5) in the context of the extraordinary power of preventive detention is sufficient to indicate that strict compliance is necessary to justify interference with personal liberty. It is more so since the liberty involved is of a person in detention and not of a free agent. Article 22(5) casts an important duty on the detaining authority to communicate the grounds of detention to the detenu at the earliest to afford him the earliest opportunity of making a representation against the detention order which implies the duty to consider and decide the representation when made, as soon as possible. Article 22(5) speaks of the detenu's 'representation against the order', and imposes the obligation on the detaining authority. Thus, any representation of the detenu against the order of his detention has to be 12 considered and decided by the detaining authority, the requirement of its separate consideration by the Advisory Board being an additional requirement implied by reading together clauses (4) and (5) of Article 22, even though express mention in Article 22(5) is only of the detaining authority. Moreover, the order of detention is by the detaining authority and so also the order of its revocation if the representation is accepted, the Advisory Board's role being merely advisory in nature without the power to make any order itself. It is not as if there are two separate and distinct provisions for representation to two different authorities viz. the detaining authority and the Advisory Board, both having independent power to act on its own.
9. It being settled that the aforesaid dual obligation of consideration of the detenu's representation by the Advisory Board and independently by the detaining authority flows from Article 22(5) when only one representation is made addressed to the detaining authority, there is no reason to hold that the detaining authority is relieved of this obligation merely because the representation is addressed to the Advisory Board instead of the detaining authority and submitted to the Advisory Board during pendency of the reference before it. It is difficult to spell out such an inference from the contents of Article 22(5) in support of the contention 13 of the learned Solicitor General. The contents of Article 22(5) as well as the nature of duty imposed thereby on the detaining authority support the view that so long as there is a representation made by the detenu against the order of detention, the aforesaid dual obligation under Article 22(5) arises irrespective of the fact whether the representation is addressed to the detaining authority or to the Advisory Board or to both. The mode of address is only a matter of form which cannot whittle down the requirement of the constitutional mandate in Article 22(5) enacted as one of the safeguards provided to the detenu in case of preventive detention."
(underlines supplied)
8. The decision of the Apex Court in the case of Smt. Gracy (supra) was rendered by a Bench of three Hon'ble Judges. The view taken by the Apex Court in Moosa Husein Sanghar is in terms of what is held in the case of Smt. Gracy (supra).
9. Now we turn to the decision of the Apex Court in the case of R. Keshava (supra). The decisions rendered by the Apex Court in the case of Smt. Gracy (supra) and R. Keshava (supra) are by the Benches of the same strength. In paragraphs 8 and 9 of the decision in the case of R. Keshava (supra), the Apex Court 14 considered its earlier decision in the case of Smt. Gracy and held thus:
"8. On facts we find that in that case the detenu had made a representation to the Advisory Board who considered it before sending its opinion to the Central Government along with the entire record including the representation submitted by the detenu. The Central Government confirmed the order of detention without independent consideration of the detenu's representation sent to it by the Advisory Board. On the above facts the Court formulated the point of law for its consideration as under: (SCC p. 4, para 4) "Whether there has been any infraction of the guarantee under Article 22(5) of the Constitution as a result of Central Government's omission to consider the detenu's representation independent of its consideration by the Advisory Board? The Central Government's stand is that the detenu's representation being addressed to the Advisory Board to which it was submitted during pendency of the reference before the Advisory Board, there was no obligation on the Central Government also to consider the same independently since the representation was not addressed to the Central Government."
and made observations as noted hereinabove. 15
9. In the instant case Respondent 1 in his affidavit has categorically stated:
"I respectfully submit that the Advisory Board has not forwarded the representation filed by the detenu to the State Government and consequently I did not consider the said representation filed by the detenu before the Advisory Board.
I respectfully submit that the Advisory Board has forwarded its report along with the covering letter dated 12-4-2000, to the State Government. However, Respondents 1 and 2 did not receive any representation given to the Advisory Board inasmuch as the Advisory Board has not sent the copy of the representation of the detenu, to the State Government. Therefore, the State Government could not consider the said representation. As the representations were addressed to the Advisory Board alone, there is no obligation on the part of the Superintendent of Central Prison to forward the copy of the representation to the State Government or the Central Government. Consequently, the third respondent has not forwarded the representation to Respondents 1 and 2. I submit that the Advisory Board will be having the records which are sent by the State Government such as the order of detention, grounds of detention and the documents relied upon. Except these documents, the State Government will 16 not furnish any other document to the Advisory Board. However, the documents which were produced by the detenu in the course of hearing before the Advisory Board, do not form part of the records sent by the State Government. In this case, the only extra document which was produced by the detenu was the representation. The copy of the representation was not sent by the Advisory Board to the State Government while sending its report to the State Government."
In paragraph 12, the Apex Court laid down the manner in which the principles laid down in the case of Smt. Gracy (supra) can be read and ultimately, in paragraph 17, it was held thus:
"17. We are satisfied that the detenu in this case was apprised of his right to make representation to the appropriate Government/authorities against his order of detention as mandated in Article 22(5) of the Constitution. Despite knowledge, the detenu did not avail of the opportunity. Instead of making a representation to the appropriate Government or the confirming authority, the detenu chose to address a representation to the Advisory Board alone even without a request to send its copy to the authorities concerned under the Act. In the absence of representation or the knowledge of the representation having been made by the detenu, 17 the appropriate Government was justified in confirming the order of detention on perusal of record and documents excluding the representation made by the detenu to the Advisory Board. For this alleged failure of the appropriate Government, the order of detention of the appropriate Government is neither rendered unconstitutional nor illegal."
(underlines supplied)
10. The law laid down by the Apex Court in the case of Smt. Gracy (supra) is to the effect that even if a representation is made by the detenue to the Advisory Board, it is the duty of the appropriate Government to decide the same independently and uninfluenced by the views/opinion expressed by Advisory Board. Careful perusal of the principles laid down in paragraph 17 of the decision of the Apex Court in the case of R. Keshava (supra) will show that in absence of a representation addressed to the appropriate Government or absence of the knowledge of the representation having been made by the detenue, the appropriate Government's failure to decide the same independently is not unconstitutional or illegal. However, in the present case, we are dealing with the case where the State Government had a clear knowledge of the representation made by the detenue. Firstly, 18 the representation dated 6th May, 2020 was sent to the Advisory Board through the Chief Superintendent of the Central prison. Secondly, there is an endorsement appearing on the covering letter of the Chief Superintendent of the Central prison, Bengaluru enclosing therewith a copy of the representation made by the detenue. The endorsement is admittedly by a Section Officer of the Government. In the statement of objections filed by the Detaining Authority, it is admitted that the Advisory Board heard the petitioner on his representation. In paragraph 30, there is a specific admission to that effect. The only contention raised in paragraph 31 is that the representation was not given before the first meeting of the Advisory Board. Paragraph 17 of the statement of objections filed by the State Government, it is admitted that the petitioner had made a representation on 6th May, 2020. Paragraph 17 of the statement of objections reads as under:
"17. It is submitted that consequently, the Advisory Board has fixed the date of hearing on 04.05.2020 through video conference vide Letter dated 30.04.2020. A copy of the notice 30.04.2020 is produced herewith and marked as ANNEXURE-R9. It is further submitted that the petitioner had made a Representation on 05.05.2020 to the Advisory 19 Board, Government and other through the Superintendent of Central Prison, Bengaluru against the Detention Order. The Advisory Board has heard the Petitioner in respect of the Representation filed by the Petitioner."
(Underline supplied) This clearly indicates that the State Government, despite having a knowledge and having a copy of the representation having been made by the petitioner-detenue, failed to consider the representation. It is admitted by the State Government that the representation was also made to it. Moreover, the Detaining Authority was represented before the Advisory Board by an officer of the rank of the Deputy Commissioner of Police who was subordinate to the Detaining Authority. Therefore, the State Government cannot plead ignorance about the knowledge of the representation made by the petitioner-detenue.
11. In the decision in Smt. Gracy (supra), the representation of the detenu was addressed to the Advisory Board. The Advisory Board considered the representation and enclosed the same along with its report to the Central Government. In that case, the Central Government accepted the report of the Advisory Board, without independently applying its mind to the representation of 20 the detenu that was found in the file. It was in this backdrop that the Apex Court held that, the Central Government was under a constitutional duty under Article 22(4) and (5) to consider the representation which was part of the report of the Advisory Board, though the representation was not addressed to the Central Government.
12. In the case of R. Keshava (supra), the representation of the detenu was though addressed to the Advisory Board, the representation did not form part of the report of the Advisory Board to the State Government and the State Government had no knowledge of the representation. The argument of the State Government that the Advisory Board was required to forward the representation of the detenu to the State Government was rejected by the Apex Court in the following words:
"In the absence of constitutional or statutory provisions, we are unable to observe that the Advisory Board was under an obligation to forward the whole of the record of its proceedings to the State Government. The State Government while confirming the order of detention has to peruse the report of the Advisory Board along with other records, if any, in its possession, and cannot 21 determine the legality of the procedure adopted by the Advisory Board."
13. Thus, this Court is of the considered view that the facts of the case before the Apex Court in the case of R. Keshava (supra) were entirely different from the facts of the case in the case of Smt. Gracy (supra). In the case of R. Keshava, the Government had no knowledge of the representation. It is in the light of this factual position that the Apex Court held that the decision in the case of Smt. Gracy (supra) had no application to the facts of the case before it. The other two decisions relied upon by the State are not on the point involved. It must be noted here that the right conferred upon the detenue under clause (5) of Article 22 of the Constitution of India is to ensure that a representation made by the detenue is considered at the earliest.
14. Therefore, in the facts of the present case, the decision of the Apex Court rendered in R. Keshava (Supra) will not apply, inasmuch as, the representation of the detenue is not yet decided by the State Government though it has knowledge about the representation from 6th May 2020 and though it was received by it. Moreover, in this case, the Detaining Authority cannot plead ignorance about the representation. Therefore, this is a case 22 where the principles laid down by the Apex Court in the case of Smt. Gracy (supra) will squarely apply. Hence, there is a violation of the rights conferred upon the petitioner-detenue under clause (5) of the Article 22 of the Constitution of India and, therefore, continuation of order of detention is rendered illegal. Accordingly, the petition must succeed and we pass the following order:
ORDER
i) The impugned order dated 16th March, 2020 bearing No.01/BCP/CRM/PIT-NDPS/DTN/2020 passed by the Commissioner of Police, Bengaluru city vide Annexure-A is hereby set aside;
ii) We direct that the petitioner-detenue shall be set at liberty forthwith, unless he is required in connection with any other case;
iii) The Writ Petition is allowed on the above terms.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE Vr