JUDGMENT
S. Sankarasubban, J.
1. This Original Petition filed under Article 226 of the Constitution is by the mother of the detenu, V.K. Padmakumar, to quash the detention order No. 31743/SS AI /95/Home D/ 11-7-1995 passed under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the PITNDPS Act) and the order of confirmation dated 11-9-1995 passed under Section 9(0 of the PITNDPS Act read with Section 11 of the Act.
2. Detenu was arrested under Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 on 2-11-1995 on the accusation that detenu was traffiking in brown sugar. He was produced before the Sessions Court. Thiru vanathapur and was remanded to the judicial custody. Application for bail was rejected by the Sessions Judge by order dated 16-5-1995.. Thereafter, on 11-7-1995 first respondent/State of Kerala passed an order under Section 3( I) of the PITNDPS Act. True copy of the said order is produced along with the Original Petition as Ext. P1. It is stated in Ext. P1 order that with a view to prevent the detenu from engaging in illicit traffic in narcotic drugs it is necessary to make an orderdirecting that the said person shall he detained. Ext. P1 order was served on the detenu on 12-7-1995 and hence his detention under the PITNDPS Act commenced from 12-7-1995. Subsequently the grounds of detention were furnished to the detenu along with copies of certain documents which allegedly formed the basis of the said order. Detenu filed Ext. P3 represenation before the first respondent. Representation is dated 11-7-1995. The grounds furnished on the detenu are produced along with the Original Petition as Ext. P2. In Ext. P2, it has been stated, if the detenu wishes to make representation against his detention to the detaining authority and/ or the Central Government, he may do so and forward the representation through the Superintendent, Central Prison, Thiruvananthapuram.
3. As already slated, detenu submitted Ext. P3 representation before the State Government. Ext. P4 is the order dated 18-8-1995 passed by the Commissioner & Seeretary (Home), Government of Kerala, wherein it is stated that the representation has been forwarded to the PITNDPS Advisory Board. Thereafter. Ext. P5 order was passed on 21-8-1995. In Ext. P5. it is stated that Government finds no reason to agree to the request for vacating the detention order. Ext. P6 is the order of confirmation passed under Section 9(0 of the PITNDPS Act read with Section 11 of the Act. In Ext. P6, it is stated that the case of the detenu was referred to the Advisory Board on 11-8-1995 and Ext. P3 representation was also forwarded to the Advisory Board and that the Advisory Board in its report has opined that there are sufficient grounds for the detention and for the continued detention of the detenu, under Section 3(1) of the PITNDPS Act. Thus, under Ext. P6, Government ordered detention of the detenu for a period of two years from 12-7-1995. Ext. P6 order was served on the detenu on 12-9-1995. Along with Ext. P6, a communication from the second respondent/Union of India styled as a declaration purportedly issued under Section 10(1) of the PITNDPS Act was also served on the detenu on the said day. The order of declaration passed by the Central Government is produced along with the Original Petition as Ext. P7. Ext. P7 states that detenu has a right to represent to the Central Government as well as to the State Advisory Board against the declaration. Original Petition has been filed to quash Exts. P1 and P6 and to set the detenu free.
4. Counter affidavits have been filed on behalf of 1st and 2nd respondents. First respondent in the counter affidavit submits that there are no grounds to set aside the detention order. According to the first resppndent, the representation submited by the detenu was considered by the first respondent as well as by the Advisory Board. All the documents were furnished to the detenu and that the Advisory Board has also come to the conclusion that the detention of the detenu was necessary. It is further stated in the counter affidavit that there is no violation of Article 22(5) of the Constitution. The report under Section 3(2) of the PITNDPS Act was forwarded to the Central Government and the Central Government considered the said report and informed the Slate Government that the Central Government do not find any reason to interfere with the said order. In the counter affidavit filed by the Central Government, it has been stated that the report under Section 3(2) of the PITNDPS Act was received by them.
5. On behalf of the petitioner, two grounds were pressed before us. (1) The Central Government did not consider Ext. P3 representation sent by, the detenu, and (2) Ext. P7 declaration was received by the detenu only after the confirmation of the detention and hence detenu had no opportunity to prefer any representation before the Advisory Board against the continued detention.
6. Regarding the first point, learned counsel for the petitioner submitted that non-consideration of the representation of the detenu by the Central Government is violation of Article 22 (5) of the Constitution. He further relied on Section 12 of the PITNDPS Act, according to which, a detention order may be revoked or modified by the Central Government notwithstanding that the order has been made by an officer of the Slate Government or by the State Government. Learned Senior Central Government Standing Counsel submitted that this ground has not been raised in the Original Petition and hence it cannot be urged. In paragraph 6 of the counter affidavit filed on behalf of the second respondent, it has been stated thus’:
As regards the representation against the detention made by the petitioner, it is stated that representation dated 10-8-1995 addressed to the Commissioner and Secretary to Government, Home (SSA) Department, Thiruvananthapuram was received in my office on 22-8-95 through the Superintendent, Central Prison. Thiruvananthapuram. The copy of the letter dated 10-8-95 from the Supdt., Central Prison. Thiruvananlhapuram dated 10-8-95 from the detenu (Sh. V. K. Padma Kumar) were sent back to the Commissioner and Secretary to Government of Kerala, Home (SSA) Department, Thiruvananthapuram vide my office letter No. 803/ 55/95-PITNDPS dated 25-8-95 endorsing a copy to the Superintendent, Central Prison. Thiruvananthapuram also with the comments that no action is being taken at our end as the representation is only addressed to the State Government of Kerala.
Thus, it is a fact that copy of the representation was sent to the Central Government, but it did not consider the same, as the representation was addressed to the State Government. In such circumstances, we don’t think that we can accept the argument of the learned Senior Central Government Standing Counsel that since such a ground has not been raised in the Original Petition, it cannot be considered. As has been observed in the decision reported in lcchu Devi v. Union of India (AIR 1980 SC 1983), “In case of an application for a writ of habeas corpus, the practice evolved by Supreme Court is not to follow strict rules of pleading nor place undue emphasis on the question as to on whom the burden of proof lies. Even a postcard written by a detenu from jail has been sufficient to activisc the Court into examining the legality of detention.” It is further stated in the above case that “The burden of showing that the detention is in accordance with the procedure established by law has always been placed by the Court on the detaining authority because Article 21 of the Constitution provides in clear and explicit terms that no one shall be deprived of his life or personal liberty except in accordance with procedure established by law.” Learned Senior Central Government Standing Counsel relied on the decision reported in Union of India v. Mohammed Ahmed Ibrahim, (AIR 1992 SC 778): (1992 Cri LJ 859). But in that case, it has not been stated that strict rules of pleading are to be followed when considering a petition for habeas corpus. There, the Supreme Court only held that the High Court was wrong in refusing to give an opportunity to the detaining authority to file reply to certain statements made in the petition. In the present case, that is not the position. Here, it is admitted by the second respondent that even though the representation of the detenu was received by the Central Government, it did not deem it necessary to consider the same, as it was not addressed to it. Hence, we hold that the ground can be raised for the purpose of attacking the detention order.
7. In support of the first point, learned counsel appearing for the petitioner relied on the decision of the Supreme Court reported in Gracy v. State of Kerala, (AIR 1991 SC 1090). In that case also the Central Government took the stand that the question of consideration of representation would only arise when the representation is duly made to the Central Government. That case also arose from a detention under the same Act. Considering that question, Supreme Court observed thus:
The contents of Article 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.
In the case reported in Moosa Rusein Sanghr v. State of Gujarat, (1993) 1 SCC 511), it was observed by the Supreme Court as follows:
Merely because the representation was addressed to the Advisory Board and not to the State Government did not absolve the State Government from the constitutional obligation flowing from Article 22(5) to consider the said representation. Even though the representation was addressed to the Advisory Board but since it was forwarded to the Advisory Bdard through the State Government, it was incumbent upon the State Government to have considered the said representation and it could not return the same to the appellant without considering it on the ground that it was not addressed to it but was addressed to the Advisory Board.
In both the above cases, Supreme Court held that non-consideration of the representation by the Governments amounted to denial of right under Article 22(5) of the Constitution and hence directed that the detenu be set free. In the decision reported in Mohammed Saly v. State of Kerala, (1996 (1) Ker LJ 278), a Division Bench of this Court held thus;
On a combined reading of Article 22 (5) of the Constitution of India and Section 11 of the COFEPOS A Act, it is clear that the detenu is entitled to make representation to the Central Government also and it is bound to consider the same and pass orders thereon. Consideration should be made of all relevant particulars. The order should show that the representation had been considered after proper application of mind. The stand taken by the Central Government that they are not bound to consider the representation as the same was not addressed to it cannot be countenanced. When the Central Government received the representation seeking release of the detenu it is bound to consider the same irrespective of the fact that the representation was addressed to it or not.
8. In the present case also under Section 12 of the PITNDPS Act, Central Government has got power to revoke or modify a detention order. Detenu invoked that power by causing a representation to be sent to the Central Government. Non-consideration of the representation by the Central Government is violation of the right conferred under Section 22(5) of the Constitution read with Section 12 of the PITNDPS Act. Thus, we accept the first ground urged by the petitioner.
9. The second ground urged by the petitioner is that the order of declaration passed by the Central Government (Ext. P7) was served on the detenu only on 12-9-1995 along with Ext. P6 order of confirmation passed by the State Government on 11-9-1995. Learned counsel submits that since the order of declaration was served on the detenu subsequent to the order of confirmation, detenu did not get an opportunity to represent against the continued detention, before the Advisory Board, because by the time he received the order of declaration, the Advisory Board had passed the order of confirmation for detention and for the continued detention. This, according to him, is violation of Article 22 of the Constitution of India. For driving home this point, learned counsel for the petitioner relied on the decision of the Division Bench of Gujarat High Court reported in Abdulla Mamad Mithani v. State of Gujarat, (1986 Crl LJ 1880). There, the Court was considering a preventive detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. There, the declaration was passed under Section 9(1) of the COFEPOS A Act and the validity of the order of declaration was challenged on the ground that the detenu was not supplied with the basic material on which declaration was based, so he could not effectively represent the matter before the Advisory Board. Dealing with the contention, Court observed that the Advisory Board is duty bound to examine the legality and validity of the declaration with a view to opening on the sufficiency of cause for the continued detention of the person concerned. The Advisory Board will have to weigh the material on the basis of which the Central Government or its specially empowered officer had reached the subjective satisfaction for the declaration. To put it differently, it would be open to the Advisory Board to test the subjective satisfaction reached by the Central Government. Non-supply of the basic material on which the subjective satisfaction forthe declaration was reached would deprive the detenu of his right to make an effective representation before the Advisory Board with a view to persuading it to the view that there did not exist sufficient cause for his, continued detention. Therefore, the right to be personally heard by the Advisory Board in regard to his continued detention would be rendered nugatory if the material on the basis whereof the declaration was made is kept back from the detenu. On the basis of that, Court held that the continued detention of the detenu was invalid. This is a case where the order ot declaration was served on the detenu only after the Advisory Board gave its report and the order of confirmation was passed by the State Government. Detenu did not get an opportunity to represent the matter against his continued detention before the Advisory Board. Thus, the detenu’s right to make a representation before the Advisory Board, under Section 9, of the PITNDPS Act, is lost. Thus, we accept the second ground urged by the petitioner also.
10. On the basis of the above, we direct to release the detenu forthwith, if he is not required in any other case.