KARNATAKA HIGH COURT
Mrs. B.V. Nagarathna and Hanchate Sanjeevkumar, JJ.
Rizwan Pasha @ Kulla Rizwan – Petitioner
versus
Commissioner of Police, Bengaluru
and Anr. – Respondents
Writ Petition Habeas Corpus No.29 of 2021
Decided on 15.6.2021

IMPORTANT POINTS
(1) Law of preventive detention must not only comply with Article 22 of Constitution, but also fulfill mandate of Articles 21 and 14.
(2) Preventive detention – If consideration of representation made by detenu under Section 14 of Act is a right of detenu and a corresponding duty is cast on State Government, then administrative delay cannot imperil said right. Order of detention is not curative or reformative or punitive action but a preventive action.

Headnote:

(A) Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video and Audio Pirates Act, 1985 – Sections 3(1), 12, 13 and 14 – Constitution of India – Article 21 – Preventive detention – Much time has been lost in instant case vis-à-vis, consideration of representation – Non-consideration of representation in instant case has adversely affected right of petitioner – Had representation been considered at earliest point of time from date of its receipt, by second respondent there may have been a possibility of State Government either revoking order of detention or modifying it – It could also have been a case of rejection of representation – But, today, when more than five months have lapsed from date of making representation detenu is unaware of whether his representation has been considered and rejected or not considered at all – All this while detenu continues to be in detention – Non-consideration of representation till date is a glaring instance of violation of Article 21 of Constitution. (Para 27)

(B) Constitution of India – Article 22(5) – Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video and Audio Pirates Act, 1985 – Sections 3(1), 12, 13 and 14 – Preventive detention – Consideration of representation at an earliest point of time is of utmost importance even in a case where it is made post confirmation of detention, as reasons assigned for modification or revocation of order of detention may be acceded to by State Government – But, for making such an order it is just and necessary that representation is considered expeditiously – There could be a variety of reasons for making a representation by a detenu which needs to be considered within an earliest point of time by State Government – It would be a different matter if representation is considered at an earliest point of time and rejected – This would give a further right to detenu to take recourse in accordance with law but, for that also, detenu’s representation must be considered in right earnest – Right of consideration of a representation made by detenu under Section 14 of Act is a critical and important right – If such a representation is considered and rejected, faced with order of rejection, a detenu may take remedies available to him in law – But representation of detenu cannot be in suspended animation – It is incumbent upon State Government to have a separate channel for receipt of communication of such representations made by detenus, not only prior to confirmation order, but even after confirmation order is passed – What is of seminal importance is consideration of representation at earliest point of time, which would brook no delay – In order to avoid hardship or prejudice being caused to detenu inasmuch as his right to liberty under Article 21 is affected, representation must be considered at earliest point of time – Law of preventive detention must not only comply with Article 22 of Constitution, but also fulfill mandate of Articles 21 and 14. (Paras 28, 29, 30, 33 and 35)

(C) Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video and Audio Pirates Act, 1985 – Sections 3(1), 12, 13 and 14 – Preventive detention – Order of preventive detention is made on subjective satisfaction of detaining authority – Act also provides for revocation or modification of order of detention – Such a power could be exercised suo motu by State – It is a power coupled with duty when it is exercised on the basis of a representation made by detenu subsequent to confirmatory order made – Here is a case where there has been no consideration of representation made by petitioner under Section 14 of Act till date and there has been a lapse of five months – Any delay in disposing of representation of detenu would vitiate further detention despite order of detention being confirmed as per Section 12 read with Section 13 of Act – If consideration of representation made by detenu under Section 14 of Act is a right of detenu and a corresponding duty is cast on State Government, then administrative delay cannot imperil said right – Order of detention is not curative or reformative or punitive action but a preventive action – Petitioner cannot be detained any further under order of preventive detention – Release of petitioner ordered – Elaborate Guidelines/directions issued. (Paras 37, 43, 45, 46, 48, 49, 51 and 53)

Result: Writ Petition allowed.