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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ABHAY S. OKA, S. VISHWAJITH SHETTY, JJ.
Mr. Kenneth Jideofor, S/o Nwabnwanne – Appellant
Versus
Union Of India – Respondent
Writ Petition (HC) No. 16 of 2020
Decided on : 12-05-2020
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - Sub-section (1) of Section 3 - Constitution of India, 1950 - Article 226 - Order of detention – Condo nation of delay - Whether a representation can independently be made to and must be considered by Detaining Authority who is a specially empowered officer of concerned Government – Whether in certain circumstances Detaining Authority ought to defer consideration of such representation till report is received from Advisory Board - Joint Secretary to Government of India Ministry of Finance Department of Revenue petitioner was ordered to be preventively detained - Order was passed with a view to prevent petitioner from engaging in illicit trafficking of narcotic drugs and psychotropic substances in future - On February said order was served upon petitioner and petitioner was detained - Present petition was filed on February Joint Secretary to Government of India passed impugned order in his capacity as Specially Empowered Officer under provisions of sub-Section (1) of Section 3 of said Act of 1988 - First respondent filed its statement of objections on March - On April petitioner filed a memorandum raising additional grounds and a rejoinder - Petitioner also filed setting out additional grounds of challenge - Additional statement of objections was filed by first respondent dealing with additional grounds – Held, Court deal with issue for non-consideration of representation made by petitioner against order of detention - For that purpose it is necessary to make a reference to paragraph of additional statement of objections filed by first respondent - It is accepted that a representation dated April was made by petitioner through Superintendent of Prison which was addressed to Specially Empowered Officer who had passed impugned order - On April Copies of representation were forwarded by Superintendent of Prison by e-mail to Zonal Office Narcotics Control Bureau and to Administrative Officer COFEPOSA/ PITNDPS of High Court – Strangely Prison Authorities did not forward same to Specially empowered Officer by e-mail - Going by stand taken by first respondent in its additional statement of objections it is an admitted position that on April a representation was made by petitioner through Chief Superintendent Central Prison - It is an admitted position that representation was made to Joint Secretary to Government of India Department of Revenue and who is Specially Empowered Officer and who passed impugned order - It was forwarded to Zonal Officer of NCB by e-mail on April - As stated in grounds of detention NCB is Sponsoring Authority - There is no explanation forthcoming from Sponsoring Authority about its complete failure to forward it to Specially Empowered Officer by e-mail - It is pertinent to note that representation was placed before Advisory Board on April - But it was never forwarded by Sponsoring Authority to office of Specially Empowered Officer - There is no explanation offered regarding failure of Sponsoring Authority to forward a copy of representation to Specially Empowered Officer - A copy of representation dated April was sent by Prison Authorities to Joint Secretary by speed post - There is no explanation why representation was not forwarded to Specially Empowered Officer or to Central Government by e-mail - It is alleged in additional statement of objections that as and when Detaining Authority became aware of representation dated April same was obtained by it from NCB on April - Then representation was hurriedly disposed of on same day itself on April - There is absolutely no explanation forthcoming for not forwarding representation dated April to Specially Empowered Officer who had passed impugned order - Even representation dated April made by petitioner to Central Government through Superintendent of Central Prison was not forwarded to Central Government immediately but same was forwarded on April and it is specifically stated that same was decided on April - Delay from April to April has not been explained at all - Only conclusion which can be drawn is that there is an inordinate delay in considering representations made by petitioner to Specially Empowered Officer as well as to Central Government - In fact there are no efforts made to explain reasons for such inordinate delay - Hence there is a complete violation of rights of petitioner under Article 22 of Constitution of India and in particular Clause (5) thereof - On account of inordinate delay in deciding representations made by petitioner continuation of impugned order of preventive detention is vitiated and therefore impugned order of detention will have to be set aside - Writ petition is allowed
JUDGMENT :
By this petition filed under Article 226 of the Constitution of India, the petitioner has taken an exception to the order dated 23rd January, 2020 passed in exercise of powers under sub-section (1) of Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short, “the said Act of 1988”).
2. By the said order passed by Shri Ravi Pratap Singh, the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue (PITNDPS Unit), the petitioner was ordered to be preventively detained. The order was passed with a view to prevent the petitioner from engaging in illicit trafficking of narcotic drugs and psychotropic substances in future. On 7th February, 2020, the said order dated 23rd January, 2020 (for short, “the impugned order”) was served upon the petitioner and the petitioner was detained. The present petition was filed on 24th February, 2020. Shri Ravi Pratap Singh, Joint Secretary to the Government of India, passed the impugned order in his capacity as the Specially Empowered Officer under the provisions of sub-Section (1) of Section 3 of the said Act of 1988.
3. The first respondent filed its statement of objections on 11th March, 2020. On 22nd April, 2020, the petitioner filed a memorandum raising additional grounds and a rejoinder. The petitioner also filed I.A. No.2 of 2020 setting out additional grounds of challenge. Additional statement of objections was filed by the first respondent dealing with the additional grounds.
4. The first submission of the learned counsel appearing for the petitioner in support of the petition is that though the representation dated 15th April, 2020 was made to the Specially Empowered Officer, the same was never placed before him till 29th April, 2020. It was placed before him on 29th April, 2020 which was hurriedly decided on the same day. He submitted that the order of confirmation under Section 9(f) of the said Act of 1988 was issued by the Government of India on 27th April, 2020. He urged that the said order does not refer to the consideration of any representation made by the petitioner. Even the memorandum dated 29th April, 2020 issued by the Deputy Secretary to the Government recording the rejection of the representation dated 15th April, 2020 does not record that the same was considered by Shri Ravi Pratap Singh, who was the Specially Empowered Officer. He submitted that there was no reason to keep the representation pending till the Government of India took a decision on the basis of the report of the Advisory Board. He submitted that consideration of the representation by the Specially Empowered Officer after the confirmation of the detention order by the Government cannot be said to be an effective consideration of the representation. He submitted that even the representation dated 17th April, 2020 submitted by the petitioner to the Central Government was belatedly decided on 30th April, 2020. He placed reliance on several decisions including a recent decision of the Apex Court in the case of ANKIT ASHOK JALAN .v. UNION OF INDIA AND OTHERS, 2020 SCC OnLine SC 288.
5. Secondly, the learned counsel appearing for the petitioner submitted that the grounds of detention were not served within a reasonable time from the date on which the order of detention was passed. He submitted that in fact, there is material on record to show that when the order of detention was served upon the petitioner on 7th February, 2020, even the grounds of detention were not ready. He submitted that a compilation consisting of more than 600 pages which were the documents relied upon in the grounds of detention was attempted to be served on the petitioner for the first time as late as on 2nd May, 2020, which was eventually served on 4th May, 2020 to an advocate representing the petitioner who visited the prison. He pointed out that a translation of the Kannada documents at pages 367 and 375 was not furnished even on 4th May, 2020.
6.
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