2020 (5) TMI 420 - HC - Indian Laws

Detention of detenue - llicit trafficking of narcotic drugs and psychotropic substances - HELD THAT - Under Clause (5) of Article 22 of the Constitution of India, the Authority making an order of preventive detention is required to afford an opportunity to the detenue to make a representation against the order of detention. As far as law relating to representation is concerned, it is fairly well settled. Non-consideration of the representation made by the petitioner against the order of detention - HELD THAT - There is absolutely no explanation forthcoming for not forwarding the representation dated 15th April 2020 to the Specially Empowered Officer who had passed the impugned order. Even the representation dated 17th April 2020 made by the petitioner to the Central Government through the Superintendent of Central Prison was not forwarded to the Central Government immediately but the same was forwarded on 20th April, 2020 and it is specifically stated that the same was decided on 30th April 2020. The delay from 20th of April to 30th April 2020 has not been explained at all - Thus, the only conclusion which can be drawn is that there is an inordinate delay in considering the representations made by the petitioner to the Specially Empowered Officer as well as to the Central Government. In fact, there are no efforts made to explain the reasons for such inordinate delay. Hence, there is a complete violation of rights of the petitioner under Article 22 of the Constitution of India and in particular Clause (5) thereof. On account of the inordinate delay in deciding the representations made by the petitioner, the continuation of impugned order of preventive detention is vitiated and therefore the impugned order of detention will have to be set aside. Impugned order set aside - the petitioner/Mr. Kenneth Jideofor shall be set at liberty forthwith by the Bengaluru Central Prison, if he is not required in connection with any other case - petition allowed.

Summary

Issues Involved:

1. Non-consideration of the representation made by the petitioner.
2. Delay in serving grounds of detention.
3. Delay in passing the detention order and its impact on the live link between prejudicial activities and the detention order.

Issue-wise Detailed Analysis:

1. Non-consideration of the representation made by the petitioner:

The petitioner argued that the representation dated 15th April 2020 was not placed before the Specially Empowered Officer until 29th April 2020, and the confirmation order under Section 9(f) of the said Act of 1988 issued by the Government of India on 27th April 2020 did not consider the representation. The court noted that the representation was forwarded by the Superintendent of the Prison to the Zonal Office, Narcotics Control Bureau (NCB), Bengaluru, and to the Administrative Officer (Judicial), COFEPOSA/PITNDPS of Delhi High Court, New Delhi, but not directly to the Specially Empowered Officer. The representation was eventually obtained from NCB, Bengaluru on 29th April 2020 and decided on the same day, indicating a lack of timely consideration. The court emphasized the constitutional mandate under Clause (5) of Article 22, which requires the representation to be considered expeditiously. The failure to promptly forward and consider the representation constituted a violation of the petitioner’s rights under Article 22, rendering the continued detention impermissible and illegal.

2. Delay in serving grounds of detention:

The petitioner contended that the grounds of detention were not served within a reasonable time from the date of the detention order. The court observed that the grounds of detention and annexures, running into more than 600 pages, along with translations of Kannada documents, were served on the petitioner on 8th February 2020, with an acknowledgment obtained on each page. The petitioner claimed that the documents were served only on 4th May 2020 to an advocate representing the petitioner. The court found that the grounds of detention were indeed served on 8th February 2020, and there was no delay in furnishing the grounds of detention.

3. Delay in passing the detention order and its impact on the live link between prejudicial activities and the detention order:

The petitioner argued that the last prejudicial activity was on 17th January 2019, and the petitioner was enlarged on bail on 13th June 2019. The delay in passing the detention order on 23rd January 2020 snapped the live link between the alleged prejudicial activities and the necessity of passing the detention order. The court noted that the subjective satisfaction of the detaining authority was vitiated by non-consideration of relevant facts and consideration of extraneous circumstances. The Additional Solicitor General argued that the propensity of the petitioner and his past record justified the detention order. However, the court found that there was an inordinate delay in considering the representations made by the petitioner, and the continuation of the detention order was vitiated.

Conclusion:

The court concluded that there was a complete violation of the petitioner’s rights under Article 22 of the Constitution of India due to the inordinate delay in considering the representations. Consequently, the impugned order of preventive detention dated 23rd January 2020 and the confirmation order dated 27th April 2020 were quashed. The petitioner was directed to be set at liberty forthwith, provided there were no other cases requiring his detention. The writ petition was allowed on these terms.