MAKUKO CHUKWUKA MUOLOKWO Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) 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 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 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, therefore, submit that continuation of detention of the petitioner has been vitiated.