TaxTMI 
TaxTMI 
2025 (11) TMI 1930
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....DPS Act, the particulars of which are as follows: SI. No. Name of Police Station Crime No. Date of offence Sections Invoked Case Status 1 Vivek nagar 158/2023 16.09.2023 20(c) NDPS Act Pending trial (Bail granted on 29.09.2023) 2 Madiwala 221/2024 11.07.2024 20(b)(ii)(B) NDPS Act Pending trial (Bail granted on 01.08.2024) 3 Halasuru Gate 275/2024 14.11.2024 20(b) NDPS Act Pending trial (Bail granted on 30.11.2024 3. On 19.05.2025, the first respondent-Commissioner of Police, Bengaluru passed the impugned order directing the preventive detention of the Detenue. The impugned order came to be passed after seven months of the Detenue being enlarged on bail in the last crime registered against him. On 28.05.2025, the second respondent forwarded the detention order, grounds of detention and the documents relied upon for such detention to fourth respondent. Thereafter, the Detenue submitted a representation challenging his preventive detention under the Act. The said representation was forwarded to second respondent by the third respondent. In turn, the second respondent placed the representation of Deten....
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....vs. State of Tamil Nadu and another [(2002) 6 SCC 735] (iv) Writ Petition (HC) 110 of 2021 (v) Jaseela Shaji vs. Union of India and Others [(2024) 9 SCC 53] 9. In the light of submissions of both sides, the questions that arise for our consideration are: i) Whether the order/Annexure-B is vitiated for non-consideration of representation of the Detenue? ii) Whether detention is vitiated for not apprising the Detenue of his right to make representation to the Central Government? Reg. Consideration of representation of the petitioner while passing order/Annexure-B: 10. Admittedly, the first respondent passed the detention order exercising the power under Section 3(1) of the Act on the ground that the petitioner is habitually committing the offences under the NDPS Act, which are detrimental to the public order. Annexure-B/confirmation order is passed by respondent No.2 exercising the power under Section 9(f) of the Act. Annexure-A is the grounds of detention order passed by the first respondent and not the order itself. There is also no dispute that the said Detention Order was referred to the Advisory Board as required under Section 9(b) of....
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....icle 22(5) is independent of the consideration of the detenu's case and his representation by the Advisory Board. This position in law is also not disputed before us. 7. XXX 8. It is undisputed that if there be only one representation by the detenu addressed to the detaining authority, the obligation arises under Article 22(5) of its consideration by the detaining authority independent of the opinion of the Advisory Board in addition to its consideration by the Advisory Board while giving its opinion. In other words, one representation of the detenu addressed only to the Central Government and not also to the Advisory Board does not dispense with the requirement of its consideration also by the Advisory Board. The question, therefore, is: Whether one of the requirements of consideration by government is dispensed with when the detenu's representation instead of being addressed to the government or also to the government is addressed only to the Advisory Board and submitted to the Advisory Board instead of the government? On principle, we find it difficult to uphold the learned Solicitor General's contention which would reduce the duty of the detaining ....
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....ticle 22(5) as well as the nature of duty imposed thereby on the detaining authority support the view that so long as there is a representation made by the detenu against the order of detention, the aforesaid dual obligation under Article 22(5) arises irrespective of the fact whether the representation is addressed to the detaining authority or to the Advisory Board or to both. The mode of address is only a matter of form which cannot whittle down the requirement of the constitutional mandate in Article 22(5) enacted as one of the safeguards provided to the detenu in case of preventive detention." (Emphasis supplied) 14. From the above judgment, it becomes clear that irrespective of Advisory Board considering the representation of the Detenue, respondent No.2 while passing the confirmation order/Annexure-B was bound to independently consider the same. Further, the coordinate bench of this Court in para 49 of the judgment in Jayamma's case referred to supra has laid down the guidelines for the Government/detaining authorities in preventive detention proceedings. Para 49(7) of the guidelines reads as follows: "49(7) If any representation is submitted by the detenu befo....
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....not mandatory in every case, then the facts and circumstances of this case, whether such application and orders made thereon ought to have been placed before the Detaining Authority. In our opinion, the Detaining Authority has not taken into consideration the bail orders passed in three Criminal cases registered against the Detenue. Therefore, nonconsideration of this fact, in our opinion, also vitiates the order of detention. 18. Thus, it becomes clear that 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. Reg. Annexure-B not apprising the petitioner of his right to make representation. 19. It is the contention of the petitioner that the detaining authority should have apprised him to make representation to the Central Government seeking revocation of the same under Section 12 of the Act. 20. There is no dispute that Section 3(2) of the Act requires the State Government to report to the Central Government about the detention order within 10 days of passing of such order. Section 12(1)(b) of the A....