AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2020 (5) TMI 420
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....w to prevent the petitioner from engaging in illicit trafficking of narcotic drugs and psychotropic substances in future. On 7th February, 2020, the said order dated 23rdJanuary, 2020 (for short, "the impugned order") was served upon the petitioner and the petitioner was detained. The present petition was filed on 24th February, 2020. Shri Ravi Pratap Singh, Joint Secretary to the Government of India, passed the impugned order in his capacity as the Specially Empowered Officer under the provisions of sub-Section (1) of Section 3 of the said Act of 1988. 3. The first respondent filed its statement of objections on 11th March, 2020. On 22nd April, 2020, the petitioner filed a memorandum raising additional grounds and a rejoinder. The petitioner also filed I.A. No.2 of 2020 setting out additional grounds of challenge. Additional statement of objections was filed by the first respondent dealing with the additional grounds. 4. The first submission of the learned counsel appearing for the petitioner in support of the petition is that though the representation dated 15th April, 2020 was made to the Specially Empowered Officer, the same was never placed before him till 29th April, 2020. ....
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.... on bail on 13th June, 2019. He submitted that it is not alleged in the grounds of detention that after 13th June, 2019, the petitioner was involved in any prejudicial activity. He would, therefore, submit that considering the long delay in passing the order of detention, the live link between the alleged prejudicial activities committed by the petitioner and the necessity of passing the order of detention, has been snapped. He submitted that the subjective satisfaction of the detaining authority is vitiated by non-consideration of the relevant facts and also due to consideration of extraneous circumstances. 7. The learned Additional Solicitor General of India invited our attention to the allegations made against the petitioner in the grounds of detention. He submitted that considering the propensity of the petitioner, considering his past record and involvement in crimes, it cannot be said that the live link between the prejudicial activities of the petitioner and the necessity of passing an order of preventive detention has been snapped. He relied on the observations made by the Apex Court in the case of HARADHAN SAHA .v. STATE OF WEST BENGAL AND OTHERS (1975) 3 SCC 128. He reli....
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....lating to representation is concerned, it is fairly well settled. In paragraph 12 of the well known decision of a Constitution Bench of the Apex Court in the case of K.M. ABDULLA KUNHI AND B.L. ABDUL KHADER .v. UNION OF INDIA AND OTHERS (1991) 1 SCC 4, the Apex Court reiterated the law laid down on the subject. Paragraph 12 of the said decision reads thus: "12. The representation relates to the liberty of the individual, the highly cherished right enshrined in Article 21 of our Constitution. Clause (5) of Article 22 therefore, casts a legal obligation on the government to consider the representation as early as possible. It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words "as soon as may be" occurring in clause (5) of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period pres....
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....and how their numbers increase!) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenus." (Emphasis added) 12. Therefore, it is a duty of the Court to safeguard the protection granted under clauses 4 and 5 of Article 22 of the Constitution of India and to zealously enforce the same. 13. Firstly, we deal with the issue for non-consideration of the representation made by the petitioner against the order of detention. For that purpose, it is necessary to make a reference to paragraph 6 of the additional statement of objections filed by the first respondent. It is accepted that a representation dated 15th April 2020 (in Annexure R-8) was made by the petitioner through the Superintendent of the Prison which was addressed to the Specially Empowered Officer who had passed the impugned order. On 16th April, 2020, Copies of the representation were forwarded by the Superintendent of the Prison by e-mail to Zonal ....
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....at a representation can be made to the specially empowered officer who had passed the order of detention in accordance with the power vested in him and the representation has to be independently considered by such Detaining Authority, the concerned principles adverted to in paragraph 16 of the decision in K.M. Abdulla Kunhi would not be the governing principles for such specially empowered officer. It must be stated that the discussion in K.M. Abdulla Kunhi was purely in the context where the order of detention was passed by the appropriate Government and not by the specially empowered officer. The principle laid down in said paragraph 16 has therefore to be understood in the light of the subsequent decision rendered by another Constitution Bench of this Court in Kamleshkumar.". (Emphasis added) In paragraph 46 of the aforesaid decision, the Apex Court further held thus: "46. Since there was complete inaction on part of the Detaining Authority in the present case, to whom a representation was addressed in dealing with the representation as stated above, we hold that the constitutional rights of the detenues were violated and the detenues are entitled to redressal on that count.....