2021 (8) TMI 825 - HC - Indian Laws

Court upholds legality of detention order under PITNDPS Act, rejects illegal delegation argument, confirms compliance with Act.

MRS. FARHANA Versus THE STATE OF KARNATAKA, THE COMMISSIONER OF POLICE, THE SUPERINTENDENT BANGALORE CENTRAL PRISON

The court upheld the legality of the detention order passed by the Commissioner of Police under Section 3(1) of the PITNDPS Act, rejecting the argument of ... Validity of detention order passed - Jurisdiction - power of Commissioner of Police to pass detention order - validity of delegation of power to the Commissioner of Police - Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - HELD THAT:- As per the mandate of clause (b) of Section 9, reference by the appropriate Government to the Advisory Board is required to be made within five weeks from the date of detention of a person. When five (5) weeks period is reckoned from date of detention order i.e., 01.10.2020, it would expire on 05.11.2020 - In the instant case, the detenue was detained on 01.10.2020 and reference has been made by appropriate Government within five weeks and reference so made by State Government has been received by the Advisory Board on 27.10.2020 which is well within the period of five weeks prescribed under clause (b) of Section 9 of PITNDPS Act. Clause (c) of Section 9 of PITNDPS Act mandates that report of the Advisory Board has to be submitted to the appropriate Government within 11 weeks from the date of detention of the person concerned. Thus, if the period of 11 weeks is reckoned from 01.10.2020, it would expire on 17.12.2020. In the instant case, report of the Advisory Board has been forwarded and received by the appropriate Government on 11.12.2020 which is well within the period of 11 weeks prescribed under clause (c) of Section 9 of PITNDPS Act. Hence, contention of the petitioner raised in this regard stands rejected. Petition dismissed. Issues Involved:1. Legality of the detention order passed by the Commissioner of Police under Section 3(1) of the PITNDPS Act.2. Compliance with Section 9(b) of the PITNDPS Act regarding the referral to the Advisory Board within five weeks.3. Validity of the confirmation order issued by the Under Secretary under Section 9(f) of the PITNDPS Act.Detailed Analysis:1. Legality of the Detention Order Passed by the Commissioner of Police:The petitioner contended that the Commissioner of Police was not entitled to pass the detention order under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act). The argument was based on the assertion that there cannot be any delegation of power to the Commissioner of Police, making the detention order illegal.The court examined Section 3 of the PITNDPS Act, which specifies that any officer of the State Government not below the rank of a Secretary, specially empowered for the purposes of this section, may pass a detention order. The State Government had issued a notification empowering the Commissioner of Police and the Range Inspector General of Police to pass such orders. The court found that the Commissioner of Police, being of the rank of Principal Secretary to the Government, was competent to pass the detention order under Section 3(1) of the PITNDPS Act. Therefore, the contention that the Commissioner of Police was a delegate of the State Government and that there was an illegal delegation of powers was rejected.2. Compliance with Section 9(b) of the PITNDPS Act:The petitioner argued that the appropriate Government failed to refer the matter to the Advisory Board within five weeks, as required under Section 9(b) of the PITNDPS Act. The court noted that the detenue was taken into custody on 01.10.2020, and the reference was made to the Advisory Board on 27.10.2020, which was within the five-week period mandated by Section 9(b). The Advisory Board's report was received by the State Government on 11.12.2020, within the eleven-week period required under Section 9(c). Therefore, the court found that there was due compliance with Section 9(b) and (c) of the PITNDPS Act, and the contention regarding non-compliance was rejected.3. Validity of the Confirmation Order Issued by the Under Secretary:The petitioner challenged the confirmation order issued by the Under Secretary, arguing that it was not in conformity with the requirements of the PITNDPS Act. The court referred to Section 9(f) of the PITNDPS Act, which mandates that the appropriate Government may confirm the detention order if the Advisory Board reports sufficient cause for detention. The term 'appropriate Government' is defined in Section 2(a) to include officers of the State Government.The court further examined the Karnataka Government (Transaction of Business) Rules, 1977, which include the Under Secretary within the definition of 'Secretary' and empower the Under Secretary to authenticate orders in the name of the Governor of Karnataka. The court concluded that the Under Secretary was authorized to issue the confirmation order under Section 9(f) of the PITNDPS Act, and there was no infirmity in the confirmation order dated 22.12.2020.Conclusion:The court found no illegality in the impugned orders and affirmed the detention order dated 30.09.2020 and the confirmation order dated 22.12.2020. The writ petition was dismissed, and the detenue was not set at liberty.