TaxTMI 
TaxTMI 
2025 (10) TMI 1342
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....amarajapete 307/2015 21.10.2015 20(b) NDPS Act Acquitted in C.C. No.219/2017 on 12.09.2019 2 Chamarajapete 141/2016 18.07.2016 20(b) NDPS Act Pending trial in C.C.No.8835/2017 (Bail granted on 03.10.2016) 3 Chamarajapete 149/2018 11.07.2018 20(b) NDPS Act Acquitted on C.C. No. 13407/2018 on 08.12.2023 4 Kempegowda Nagara 80/2020 06.10.2020 20(b) NDPS Act Pending trial in C.C. No.1252/2021 (Bail granted on 07.11.2020) 5 Chamarajapete 102/2020 05.09.2020 20(b) NDPS Act Pending trial in Spl. C.C. No.905/2022 (Bail granted on 07.11.2020) 6 Byatarayanapura 317/2021 29.11.2021 20(b) NDPS Act Pending trial in Spl.C.C. No.591/2023 (Bail granted on 07.06.2023) 7 Annapoorneshwari Nagara 13/2022 11.02.2022 20(b) NDPS Act Pending trial in Spl. C.C. No.1984/2022 (Anticipatory Bail granted in Crl.P.No.1587/ 2022 on 23.02.2022) 8 Kempegowda Nagara 17/2022 04.02.2022 20(b)(ii)(B), 27A NDPS Act Pending trial in C.C. No.930/2022 (Bail granted on 07.06.2022) 9 Annapoorneshwari Nagara 58/2022 26.02.2022 20(b) NDPS Act Pending trial in C.C. No.2222/....
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.... (A) Respondent No.2 while passing order Annexure-B has not considered his representation dated 08.02.2025 independent of the opinion of the Advisory Board which is violative of Article 22(5) of the Constitution. (B) Annexure-B/confirmation order does not apprise the petitioner/detenue of his right to make representation to the Central Government against such order, thereby the order is vitiated. 7. In support of his submissions, learned counsel for the petitioner relied on the following judgments: (i) Gracy v. State of Kerala [(1991)2 SCC 1] (ii) Jayamma v. Commissioner of Bangaluru [ILR 2019 Kar 1543] (iii) Kamleshkumar Ishwardas Patel v. Union of India [(1995)4 SCC 51] 8. Per contra, Sri Thejesh P, learned HCGP submits that while passing order/Annexure-B, respondent No.2 has considered all materials including the representation of the petitioner. He further submits that the guidelines issued do not curtail the provisions of the statute, therefore, the judgment of the Hon'ble Supreme Court and this Court relied upon by the petitioner's counsel are not applicable. 9. In support of his submissions, learned HCGP for the respondents relied on th....
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....the person to be released forthwith." 13. Reading of the above provision shows 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. 14. Hon'ble Supreme Court in paras 6, 8 and 9 of the judgment in Gracy's case referred to supra, while concluding that the right of the detenue to have his representation considered is independent of consideration of the same by the Advisory Board, has held as follows: "6. It is thus clear that the obligation of the government to consider the representation is different and in addition to the obligation of the Board to consider it at the time of hearing the reference before giving its opinion to the government. Consideration of the representation by the government has to be uninfluenced by the view of the Advisory Board. In short, the detenu's r....
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....of Article 22, even though express mention in Article 22(5) is only of the detaining authority. Moreover, the order of detention is by the detaining authority and so also the order of its revocation if the representation is accepted, the Advisory Board's role being merely advisory in nature without the power to make any order itself. It is not as if there are two separate and distinct provisions for representation to two different authorities viz. the detaining authority and the Advisory Board, both having independent power to act on its own. 9. It being settled that the aforesaid dual obligation of consideration of the detenu's representation by the Advisory Board and independently by the detaining authority flows from Article 22(5) when only one representation is made addressed to the detaining authority, there is no reason to hold that the detaining authority is relieved of this obligation merely because the representation is addressed to the Advisory Board instead of the detaining authority and submitted to the Advisory Board during pendency of the reference before it. It is difficult to spell out such an inference from the contents of Article 22(5) in support ....
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....s required under Section 9(f) of the Act and larger bench judgment in Gracy's case referred to supra. 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. 17. Perusal of the judgment in Dimple Happy Dhakad's case referred to supra shows that the issue raised in the said case was regarding noncompliance of the administrative guidelines, therefore it was held that non-compliance of such order does not amount to violation of the provisions of a statute and that does not curtail the provisions of any statute. Since Section 9(f) of the Act requires the Government to consider the representation independently, the judgment in Dimple's case is not applicable. 18. Reading of para 10 of the judgment of the coordinate Bench of this Court in Mrs. Khatejutal Najma's case referred to supra shows that, in that case it was held that the representation of the detenue were considered by the State Government. But, in this case, as noticed above, the representation of the detenue was not considered. Hence, the said judgment does not advance the case of the respondents. F....
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..... In Roopa's case referred to supra relied on by learned HCGP, this Court found that statutory requirement was complied. Therefore, the said judgment cannot be justifiably applied to the facts of the present case. Hence the contention of the petitioner that his representation was not independently considered by respondent No.2, thereby Annexure-B is vitiated, sustains. Reg. Annexure-B not apprising the petitioner of his right to make representation. 20. 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. 21. 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 Act confers powers on the Central Government to revoke or modify the order passed by a State Government. Article 22(5) of the Constitution of India requires the authority making the detention order to communicate the detenue the grounds of order and afford him earliest opportunity of making representation against the or....