TaxTMI 
TaxTMI 
2021 (8) TMI 825
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....ere cannot be any delegation of power to the Commissioner of Police to pass an order and as such, order of detention is illegal and liable to be set aside. 3. Further grounds urged in the writ petition is that under Section 9(b) of the PITNDPS Act, 'appropriate Government' has to refer the matter to the Advisory Board within five weeks and records do not disclose as to who has referred the matter to the Advisory Board. It is further urged that detenue was produced before the Advisory Board through video conference for the first time on 25.11.2020 i.e., after expiry of seven weeks and five days as the detenue was under detention since 01.10.2020 and on account of reference not being made to the Advisory Board within five weeks, same is liable to be set aside. Grievance of the petitioner is that order of detention has been mechanically passed and there is non-application of mind and there is no material to indicate that respondents have gone through the entire material and derived substantive satisfaction before passing the detention order. Hence, on these grounds and amongst others as urged in the petition, it has been prayed to set the detenue at liberty by quashing the im....
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....of Section 9(f) and Section 11 of PITNDPS Act, order of detention dated 22.12.2020 (Annexure-E) issued by the said Officer is in conformity with Rule 19 and as such, they have prayed for dismissal of the petition. 5. Sri Anees Ali Khan, learned Advocate appearing for petitioner has reiterated the grounds urged in the writ petition and has sought for petition being allowed by relying upon the following judgments: 1) 2000 CRI.L.J. 805 STATE OF M.P. vs BHUPENDRA SINGH 2) Order dated 19.12.2007 passed in WPHC No.100/2007. 6. Per contra, Sri V.S.Hegde, learned SPP-II appearing for the State has reiterated the contentions raised in the statement of objections and has sought for dismissal of petition. 7. Having heard the learned Advocates appearing for parties, we are of the considered view that following point would arise for consideration: "Whether impugned order dated 30.09.2020 (Annexure-A) passed by second respondent and order dated 22.12.2020 (Annexure-E) confirmed by first respondent suffers from any illegality or not? 8. In the background of grounds urged in the writ petition, we are of the considered view that it would be apt and appropriate to extract the relevant Sect....
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....ithin five weeks from the date of detention of a person under a detention order, make a reference in respect thereof to the Advisory Board constituted under clause (a) to enable the Advisory Board to make the report under sub-clause (a) of clause (4) of Article 22 of the Constitution; (c) the Advisory Board to which a reference is made under clause (b) shall after considering the reference and the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard in person, after hearing him in person, prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within eleven weeks from the date of detention of the person concerned; (d) when there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed ....
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.... Board constituted under clause (a) of Section 9 to enable such Advisory Board to make a report under sub-clause (a) of clause (4) of Article 22 of the Constitution of India. The Advisory Board to which a reference is made under clause (b) shall after considering reference and the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any person and if in any particular case, Advisory Board considers it essential so to do or if the person concerned desires to be heard in person, after hearing him in person, prepare its report specifying its opinion as to whether or not there is sufficient case for the detention of the person concerned and submit a report to the appropriate Government within 11 weeks from the date of detention of the person concerned. 12. Under clause (f) of Section 9, the appropriate Government is empowered to confirm the detention order and continue the detention of the person so detained for such period as it thinks fit, if opinion of the Advisory Board so indicate and in the event of Advisory Board opining there is no sufficient cause for detention of the person concerned, appro....
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.... powers. As such, contention raised in that regard cannot be accepted. 15. That apart, document No.1 annexed to the affidavit dated 14.07.2021 filed by the Additional Chief Secretary, Department of Home would also clearly indicate that Commissioner of Police, Bengaluru is of the rank of Principal Secretary to Government drawing the payscale equivalent to the Principal Secretary namely, at Rs. 1,82,200-2,24,000, Level - 15 as indicated in the notification No.G.S.R.870(E) dated 08.09.2016. Thus, Additional Director General of Police and Commissioner of Police, Bangalore city are of the rank of a Principal Secretary to Government and they are competent to pass the order under Section 3(1) of PITNDPS Act as they are specially empowered for the purposes of said Section by the appropriate Government. 16. As already noticed herein above, clause (f) of Section 9 of PITNDPS Act mandates that appropriate Government may confirm the detention order in every case where Advisory Board has reported that in its opinion there is sufficient case for detention of a person. Clause (a) of Section 2 of PITNDPS Act which defines the expression "appropriate Government" would indicate that insofar as the....