2025 (10) TMI 1342 - HC - Indian Laws

Preventive detention challenge over ignored detainee representation u/s9(f) and undisclosed Central Government appeal right; detention quashed.

The dominant issues were whether preventive detention was vitiated by (i) failure to independently consider the detenue's representation under s.9(f) of ... Violation of principles of natural justice - non-consideration of representation of the petitioner - detention is vitiated for not apprising the petitioner of his right to make representation to the Central Government. - Allegation of indulging in illicit trafficking of narcotic and psychotropic substances Non-consideration of representation of the petitioner while passing order/Annexure-B - HELD THAT:- The power of the Government to confirm the detention order is independent of the opinion of the Advisory Board. As the word “may” is employed in Section 9(f) of the Act, even if the Advisory Board found sufficient cause for the detention, the Government has power to take a different view. Only in case if the Advisory Board finds no sufficient cause for detention, the Government is bound to revoke such order as the word “shall” is employed. In Annexure-B absolutely there is no reference to the representation of the petitioner leave alone the independent consideration of same. To verify if respondent No.2 has considered the same in the proceedings while passing the order, the records of the proceedings were secured. Those proceedings show that based on the Advisory Board’s report, draft of Annexure-B was placed before the competent authority and that was approved as it is. There is not even a whisper at least in the proceedings’ sheet that respondent No.2 perused or examined the representation. Thus there is no independent consideration of the representation as required under Section 9(f) of the Act and larger bench judgment in Gracy’s case [1991 (2) TMI 232 - SUPREME COURT]. Hence the order is violative of Article 22(5) of the Constitution of India and contrary to the law laid down in the aforesaid judgment of the Hon’ble Supreme Court and this Court. The respondent No.2 is bound to consider the representation of the detenue entirely independent of the consideration of the same by the Advisory Board. On that count also, the said judgment is of no assistance to the respondents. Annexure-B not apprising the petitioner of his right to make representation - HELD THAT:- Article 22(5) of the Constitution or Section 9(f) or 12(1)(a) of the Act do not expressly speak about the right of the detenue of being apprised of his right of making representation to the Central Government in the matter. If there was no need to reconsider the order passed by the State Government or the authority, Section 12 of the Act empowering the Central Government would not have been carved out in the Act by the legislature. The detenue is the main affected person in the matter. Only if the detenue is apprised by State Government making of such a report to the Central Government, he gets an opportunity seeking revocation of the same under Section 12(1)(b) of the Act. Otherwise his fundamental right under Article 22(5) of the Constitution to make representation gets affected. Annexure-A is only the grounds of detention and not even detention order referred to in Annexure-B passed by the first respondent under Section 3(1) of the Act. The petitioner ought to have sought quashing of the said order which he has failed to do for the reasons best known to him. On quashing of Annexure-B, the same loses its existence, thus stands short of the requirement of Section 3(2) of the Act submitting the same to the Central Government within 10 days. Thereby the detention order dated 27.12.2024 referred to in Annexure-B loses its existence. Hence Annexure-A becomes inconsequential. The allegations against the petitioner in Annexure-B about the criminal cases pending against him are matter of trial in those cases. The order Annexure-B dated 20.03.2025 passed by respondent No.2 and consequentially the detention order dated 27.12.2024 in No.04/BCP/PIT-NDPS/DTN/2024 passed by respondent No.1 are hereby quashed - Petition disposed off. 1. ISSUES PRESENTED AND CONSIDERED (i) Whether the confirmation/continuance of preventive detention was vitiated because the appropriate Government failed to independently consider the detenue's representation, as required by Article 22(5) of the Constitution read with Section 9(f) of the Act. (ii) Whether the confirmation/continuance of preventive detention was vitiated because the detenue was not apprised of his right to make a representation to the Central Government, which is competent to revoke/modify the detention under the Act, thereby impairing the safeguard under Article 22(5). 2. ISSUE-WISE DETAILED ANALYSIS Issue (i): Independent consideration of representation by the appropriate Government while confirming detention Legal framework (as discussed by the Court): The Court examined Section 9(f) of the Act governing confirmation of detention after the Advisory Board's report, and Article 22(5) of the Constitution requiring communication of grounds and affording the earliest opportunity to make a representation, with a corresponding duty to consider it. The Court treated the Government's power under Section 9(f) as discretionary ('may') even when the Advisory Board opines sufficient cause, thereby requiring an independent governmental assessment. Interpretation and reasoning: The Court held that Section 9(f) makes the Government's confirmation decision independent of the Advisory Board's opinion, and therefore the Government must consider the detenue's representation on its own merits, uninfluenced by the Board. On scrutiny of the confirmation order and the produced proceedings records, the Court found no reference to the representation and no indication that it was perused or examined; the record showed approval of a draft confirmation order based on the Advisory Board's report alone. The Court rejected reliance on authority concerning mere non-compliance with administrative guidelines, distinguishing it because the duty here flowed from the statute and Article 22(5), not from guidelines. Conclusions: The Court concluded that the appropriate Government failed to independently consider the representation, rendering the confirmation order invalid as violative of Article 22(5) and contrary to the statutory role under Section 9(f). This defect vitiated the confirmation of detention. Issue (ii): Failure to inform the detenue of the right to make a representation to the Central Government Legal framework (as discussed by the Court): The Court considered Section 3(2) (requiring reporting of the detention order to the Central Government within a stipulated time), Section 12(1)(b) (Central Government's power to revoke or modify a State detention order), and Article 22(5) (right to make a representation against the detention order). The Court noted that although these provisions do not expressly state that the detenue must be informed of the right to represent to the Central Government, Article 22(5) encompasses representation to any authority competent to revoke detention. Interpretation and reasoning: The Court reasoned that because the Act confers revocation/modification power on the Central Government, an effective constitutional opportunity to make a representation requires that the detenue be informed of that avenue; otherwise, the safeguard becomes illusory. The Court treated the obligation to inform as inherent in the right to representation, since the detenue is the person primarily affected and can meaningfully seek relief only if made aware of the competent revoking authority. On this basis, the Court held that non-apprising of the right to represent to the Central Government vitiated the confirmation order. Conclusions: The Court held that the failure to apprise the detenue of the right to make a representation to the Central Government impaired the Article 22(5) safeguard and constituted an additional independent ground to invalidate the confirmation order. Resulting operative determination (as decided): On both defects, the Court quashed the confirmation/continuance order. Consequentially, the detention order referred to therein was also quashed, and the stated 'grounds of detention' document became inconsequential to the continued detention once the confirmation order was set aside.