MOHAMED ASARUDEEN v. THE GOVERNMENT OF KARNATAKA

Judgment

1. THE GOVERNMENT OF KARNATAKA REP. BY ITS PRINCIPAL SECRETARY DEPARTMENT OF HOME AND TRANSPORT VIDHANA SOUDHA BANGALORE PETITIONER

5. 2 THE PRINCIPAL SECRETARY, GOVERNMENT OF KARNATAKA DEPARTMENT OF HOME AND TRANSPORT VIDHANA SOUDHA BANGALORE

SRI S M JAAMDAR THE DETAINING AUTHORITY AND SPECIALLY EMPOWERED OFFICER, OFFICE OF THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF KARNATAKA, DEPARTMENT OF HOME & TRANSPORT, VIDHANA SOUDHA, BANGALORE UNION OF INDIA REP. BY SECRETARY TO GOVERNMENT MINISTRY OF FINANCE DEPARTMENT OF REVENUE NEW DELHI THE CHIEF SUPERINTENDENT OF CENTRAL PRISON CENTRAL PRISON, PARAPPANA AGRAHARA BANGALORE … RESPONDENTS [BY SRI E.S.INDIRESH, HCGP. FOR R1 TO R3 AND R5; SRI K.S.MALLIKARJUN REDDY, CGC. FOR R4) THIS WPHC IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA BY THE ADVOCATE FOR THE PETITIONER PRAYS THAT THE HON'BLE HIGH COURT BE PLEASED TO ISSUE A WRIT OF HABEAS CORPUS OR ANY OTHER WRIT OR ORDER OR DIRECTION IN THE NATURE OF A WRIT OF HABEAS CORPUS CALLING FOR THE RECORDS OF THE RESPONDENTS CONNECTED WITH DETENTION ORDERS BEARING NO.HD 18 SCF 2011 DATED 30.12.2011, ISSUED BY THE 3RD RESPONDENT AS A SPECIALLY EMPOWERED OFFICER UNDER THE PROVISIONS OF THE COFEPOSA AND QUASH THE SAME AND SET AT LIBERTY THE DETENU MOHAMED ASARUDEEN (22 YEARS) SON OF SAHABDEEN NOW IN CENTRAL PRISON, BANGALORE, UNDER THE DETAINED 3 PROVISIONS OF CONSERVATION OF FOREIGN EXCHANGE AND PREVENTION OF SMUGGLING ACTIVITIES ACT AND DIRECT THE 5TH RESPONDENT TO RELEASE THE PETITIONER, OR GRANT SUCH RELIEF AS THIS HON'BLE COURT DEEMS FIT AND THINKS PROPER AND ETC., … PETITIONER IN WP[HC] NO.16 OF 2012: BETWEEN: NAINAR KAJA ABUBACKER S/O ABUBACKER NO.6/13-A, THONDI ODAVI STREET THONDI POST, THIRUVADANAI (TK) RAMANATHAPURAM, TAMILNADU COFEPOSA DETENU DETAINED IN THE CENTRAL PRISON BANGALORE [BY M/S.GUHA ASSOCIATES AND SRI NARENDAR G, ADV.) AND:

3. THE GOVERNMENT OF KARNATAKA REP. BY ITS PRINCIPAL SECRETARY DEPARTMENT OF HOME & TRANSPORT VIDHANA SOUDHA BANGALORE THE PRINCIPAL SECRETARY GOVERNMENT OF KARNATAKA DEPARTMENT OF HOME & TRANSPORT VIDHANA SOUDHA BANGALORE SRI S M JAAMDAR THE DETAINING AUTHORITY & SPECIALLY EMPOWERED OFFICER, OFFICE OF THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF KARNATAKA 4

5. DEPARTMENT OF HOME & TRANSPORT VIDHANA SOUDHA BANGALROE UNION OF INDIA REP. BY SECRETARY TO GOVERNMENT MINISTRY OF FINANCE DEPARMENT OF REVENUE NEW DELHI THE CHIEF SUPERINTENDENT OF CENTRAL PRISON CENTRAL PRISON, PARAPPANA AGRAHARA BANGALORE … RESPONDENTS [BY SRI E.S.INDIRESH, HCGP FOR R1 TO R3 AND R5 SRI A K MOHANAKRISHNAN, CGC. FOR R4.) THIS WPHC UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA IS FILED BY THE ADVOCATE FOR THE PETITIONER PRAYS THAT THE HON'BLE HIGH COURT BE PLEASED TO ISSUE A WRIT OF HABEAS CORPUS OR ANY OTHER WRIT OR ORDER OR DIRECTION IN THE NATURE OF A WRIT OF HABEAS CORPUS CALLING FOR THE RECORDS OF THE RESPONDENTS CONNECTED WITH DETENTION ORDERS BEARING NO.HD 17 SCF 2011 DATED 30.12.2011, ISSUED BY THE 3RD RESPONDENT AS A SPECIALLY EMPOWERED OFFICE UNDER THE PROVISIONS OF THE COFEPOSA AND QUASH THE SAME AND SET AT LIBERTY THE DETENU NAINAR KAJA ABUBACKER (22 YEARS) SON OF ABUBACKER NOW DETAINED IN CENTRAL PRISON, BANGALORE, UNDER THE PROVISIONS OF CONSERVATION OF FOREIGN EXCHANGE AND PREVENTION OF SMUGGLING ACTIVITIES ACT AND DIRECT THE 5TH RESPONDENT TO RELEASE THE PETITIONER, OR GRANT SUCH RELIEF AS THIS HON'BLE COURT DEEMS FIT AND THINKS PROPER AND ETC., THESE WPHCs COMING ON FOR FINAL HEARING, THIS DAY, SHYLENDRA KUMAR.J., MADE THE FOLLOWING: 5 ORDER RE: WP[HC] No.15 of 2012: Writ petition by detenue who has been detained by an order passed by the specially empowered officer – the State, Government of Karnataka namely the Principal Secretary to the Government, Home Department under the provisions of 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called as ‘the Act’ for brevity) as per the order dated 30.12.2011 Annexure A and has been detained at the Central Prison Bangalore on and from 03.01.2012.

2. Writ petitioner urging various grounds amongst which is prominently highlighted, the non disposal of the representation made by the detenue to the detaining authority and the State Government and inordinate delay in the disposal of representation by the Central Government which according to Sri. Narendar, learned counsel for the petitioner has been disposed of in 73 days after the representation. 6

3. Brief facts are that the writ petitioner when arrived at the Bangalore International Airport on board by Srilankan Airlines from Colombo to Bangalore and was intercepted by the officials of the DRI at the airport and found to be having on his body 12 gold biscuits each weighing 100 grams and which was sought to be taken out without declaration and without paying corresponding customs duty.

4. In this connection, the person came to be arrested the next day, produced before the jurisdictional Magistrate and was enlarged on bail on furnishing a bond of Rs.5,00,000/- with two sureties etc.

5. It is thereafter, that the detention order came to be passed as indicated above on 30.12.2011 and executed on

03.01.2012.

6. Notice had been issued respondents. Respondents 1, 2 and 3 – Government of Karnataka, represented by Principal Secretary, Principal Secretary by 7 name who is specially empowered Officer figured as respondents 2 & 3, Union of India as respondent No.4 and Chief Superintendent of Central Prison as respondent No.5. Respondents 1, 2 3 and 5 are represented by Sri. Indiresh, learned Government Pleader.

7. Respondent No.4 – Government of India is represented by Sri. K S Mallikarjun Reddy, learned Central Government Standing Counsel. Counters have been filed, one set by the State Government and its officials and the other set on behalf of the Union of India – respondent No.4 also.

8. Mr. Narendar, learned counsel for the petitioner submits that the detention order suffers from various illegalities; that the constitutional safeguard in terms of Article 22 of the Constitution of India such as detenue being given the earliest opportunity of making an effective representation and disposal of the same by the detaining authority – the State Government and the Central Government at the earliest is not complied in terms of the 8 provisions of Article 22[5] of the Constitution of India; that while the State Government and the detaining authority have not even responded to the representation made by the detenue on 10.1.2012, Central Government has disposed of the representation with inordinate delay by rejecting the same.

9. In this regard, learned counsel for the petitioner has drawn our attention to the counter filed by the State Government at paragraph-13 wherein it is claimed that the representation has been disposed of, but no particulars are forthcoming.

10. On querying Sri. Indiresh, learned Government Pleader about the particulars of the disposal of the representation, learned Government Pleader submits that the representation given by the petitioner was in Tamil language and therefore the detenue had been asked to provide English translation of the representation and that has not been so provided by the detenue and therefore there is no delay on the part of the 9 State Government as the English version is not yet given by the detenue etc.

11. A stand of this nature we find is nothing short of infraction of a safeguard given to a detenue in terms of Article 22[5] of the Constitution of India and courts have held repeatedly held that the law on this aspect is quite crystallized that any representation made by a detenue should be disposed of as expeditiously as possible and without giving room for any slackness.

12. It is also one of the Constitutional requirement that the grounds of detention based on which detention order is passed should be communicated to the detenue in a language known to him and if so the State Government insisting on the detenue to provide his representation in a language which the State Government wants is nothing short of a total ignorance of the constitutional obligations imposed on the State Government and even amounts to deliberate disregard of the Constitutional provisions. 10

13. We also express our utmost resentment, the manner in which affidavits are filed by the officials of the State Government and virtually misleading the court. A false affidavit before the court is nothing short of perjury and unless such tendency is curbed on the part of the State Government, this court will have to view the matter seriously.

14. In the wake of such a glaring infraction committed by the State Government as well as the detaining authority in not responding to the representation made by the petitioner – detenue, we do not propose to go into various other grounds raised by the petitioner in this petition for the relief sought for and also do not go into the question of there being delay or otherwise on the part of the Central Government in disposing of the representation of the petitioner.

15. In the result, this writ petition is allowed. The detention order at Annexure-A is quashed by issue of a writ 11 of certiorari. We direct the fifth respondent to release the detenue and set him at liberty forthwith unless the petitioner is required in connection with any other case or proceedings.

16. Rule made absolute. RE: WP[HC] No.16 of 2012:

17. The facts and circumstances in this petition are almost identical with the facts and circumstances as noticed in writ petition [HC] No.15/2012 and the detention order also suffers from the same vice as in the case of the order passed in writ petition [HC] No.15/2012 as in the present case also the State Government has not disposed of the representation of the detenue till date and giving some lame excuses for not doing the same.

18. This writ petition is allowed. Rule made absolute. 12

19. Registry is directed to communicate operative portion of this order to the respondent No.5 - Chief Superintendent of Central Prison, forthwith. Sd/- JUDGE Sd/- JUDGE nvj, AN/-