KOKILA Vs. COMMISSIONER OF POLICE

JUDGEMENT

(1.) Petitioner is the wife of the detenue Manju alias Poochi. The detention order is made as per Annexure-A, dated 7.5.2012 against Manju alias Poochi for detaining him under the provisions of Section 3(1) of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1985 (for short 'Goondas Act'). The grounds for detention dated 7.5.2012 are also furnished to the detenue as per Annexures-C and D (Kannada and English languages). Subsequently, the matter was referred to Advisory Board. Thereafter, the order came to be passed by the State Government as per Annexure-E, dated 17.5.2012 under Section 3(3) of the Goondas Act confirming the order of detention dated 7.5.2012. Subsequently the detenue did not take steps to file representation, immediately. However, a representation came to be filed by the detenue on 3.1.2013 before the Assistant Superintendent of Central Prison. Bangalore, requesting the State Government to release him from detention. The said representation came to be rejected on 13.2.2013 by the State Government.

(2.) Though number of grounds are urged in this writ petition, in our considered opinion, the matter may be decided only on one, short point, i.e., non-consideration of the representation of the detenue at the earliest.

(3.) Section 8 of the Goondas Act if read with Article 22(5) of the Constitution of India, makes it clear that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. Thus, it is clear that the detenue should be given an opportunity earliest for making the representation, so also the decisions of the Court mandate that such representation if any, filed by the detenue shall be considered as per law at the earliest. It is no doubt true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration. But, it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State. Since the Constitution as well as the Act specifically provide that the detenue shall be given the earliest opportunity of making representation against the order of detention, it is implicit that there is a corresponding duty on the authorities to whom the representation is made to dispose of the representation at the earliest or else the constitutional and the statutory obligation to provide earliest opportunity of making representation would lose both its purpose and meaning. If there has been any delay in disposal of the representation, the reasons for the delay must be communicated to the Court or else the unexplained delay or unsatisfactory explanation in disposal of the representation would totally affect the order of detention and in that situation, continuation of detention would become bad. Kundanbhai Dulbabhai Shaikh Vs. District Magistrate, 1996 SCC(Cri) 470 Ahmedabad & Others). In the matter on hand, though the State Government has filed objections, nothing is stated in the statement of objections as to why there is delay in considering the representation. Admittedly, the representation was filed on 3.1.2013 and the same is rejected on 13.2.2013 i.e., after the lapse of 40 days. Absolutely no reasons are assigned in the statement of objections as to why 40 days of time was being taken by the State Government to consider the representation. The original file maintained by the State Government is placed before the Court, which reveals that the representation dated 3.1.2013 was placed before the appropriate authority on 8.2.2013 i.e., after long lapse of 35 days. The said representation was in turn placed before the Joint Secretary to Home Department in between 8.2.2013 and 11.2.2013. The Joint Secretary to Home Department has rejected the representation and ordered to issue suitable endorsement to the detenue, on 11.2.2013. The Principal Secretary to State Government (Home Department) has ultimately approved the order of rejection on 13.2.2013.