JUDGMENT
K.A. Swami, J.
1. In this petition under Art. 226 of the Constitution, the petitioner has sought for quashing the order dated 15-2-1989 bearing No. CRM/DTN/12/89-90 Annexure-F and also the order dated 26-12-1989 bearing No. HD 976 SST 89 produced as Annexure-A passed by the first respondent. The petitioner has also sought for quashing the order dated 8-2-1990 bearing No. HD 976 SST 89 passed by the State Government confirming the order of detention passed by the second respondent on 15-12-1989. Consequently, she has sought for issue of a writ in the nature of Heabeas Corpus to produce her sons Krishna alias Korangu before this Court and set him at liberty.
2. The petitioner is the mother of Krishna alias Korangu (hereafter Krishna alias Korangu will be referred to as the detenu). The second respondent by the order dated 15-12-1989 – Annexure-F passed an order directing the detention of the detenu under sub-section (2) of Section 3 of the Karnataka prevention of Dangerous Activities of Boot-Leggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1985 (hereinafter referred to as the ‘Act’) – with a view to prevent the detenu from acting in any manner prejudicial to the maintenance of public order. The order of detention was tried to be served upon the detenu who was an under trial prisoner in the Central prison at Bangalore on 19-12-1989 but he refused to receive the same. He not only refused to receive the order of detention but also the grounds of detention and also the copies of the documents relied upon by the detaining authority. Thereafter, the State Government by the order dated 26-12-1989 Annexure-A approved the order of detention passed by the second respondent. Pursuant to the order approving the detention, as required by Section 10 of the Act, the case of the detenu was referred to the Advisory Board constituted under Section 9 of the Act. The Advisory Board got the detenu produced before them and heard him and recorded their opinion stating that there was sufficient cause for detention of the detenu. Before the Advisory Board detenu did not ask for assistance of any friend. Pursuant to the opinion tendered by the Advisory Board the State Government in exercise of its power under Section 12 of the Act confirmed the order of detention by the order dated 8-2-1990.
3. After the order of detention was confirmed, the detenu sent a representation dated 12-2-1990 – Annexure-B praying for furnishing the order of detention and the grounds of detention together with the connected papers. As neither a reply was received by the detenu, nor the order of detention, the grounds of detention and the copies of the documents connected therewith were furnished, he sent another representation on 26-2-1990, through the Senior Superintendent, Central Prison, Bangalore. As an argument is built on this representation it is necessary to reproduce the same. The said representation reads thus :
“Respected Sir,
Sub. : Requesting order of Detention Order and the grounds of detention urgently.
Ref. : My earlier representation dated 12-2-1990 to your goodself in this regard.
Sir,
In continuation of my earlier representation dated 12-2-90, I am once again requesting your goodself kindly arrange to provide me the order and grounds of detention along with relevant documents to enable me to make an effective representation against my detention OR to order my release immediately on humanitation grounds as I am innocent.
Thanking you.”
No reply was also received by the detenu to his aforesaid representation dated 26-2-1990. Thereafter, this writ petition was presented by the mother of the detenu on 9-4-1990.
4. We have heard Sri Kiran Javali, learned counsel for the petitioner and learned Advocate General Sri B. V. Acharya, for the respondents.
5. The learned counsel for the petitioner has not advanced any contention based on the appreciation of facts. He has advanced only the legal contentions. According to the learned counsel the order of detention suffers from the following irregularities. :
1. There has been inordinate delay in furnishing the order of detention, the grounds of detention and the copies of the documents;
2. That the request made by the detenue for supply of the order of detention, grounds of detention and copies of documents in his representation dated 26-2-1990 or in the alternative to consider the representation as a request for revoking the order of detention and releasing him, has not been considered;
3. That the documents relied upon for arriving at subjective satisfaction by the detaining authority ought to have been listed in the grounds of detention;
4. That the detenu was an under trial prisoner and his application for bail was rejected and as such there was no prospect of he being released. Consequently, there was no need for passing an order of detention as the detenu was already in the custody. In other words, it is submitted that the subjective satisfaction arrived at has no nexus with the necessity of passing an order of detention.
6. These contentions are refuted by learned Advocate General. It is submitted by him that when once the detenu has refused to receive the order of detention, the grounds of detention and copies of the documents relied upon when the same were tendered within the period fixed under the Act and thereafter the order of detention was confirmed the detenu has had no right under the Act or under Art. 22(5) of the Constitution to seek supply of the order of detention, grounds of detention and copies of the documents. Therefore, non-consideration of the representations dated 12-2-1990 and 26-2-1990 did not result in infraction of any legal right of the detenu nor resulted in any illegality. As far as the representation dated 26-2-1990 is concerned it is the stand of the learned Advocate General that it was a representation for supply of the order of detention, grounds of detention and copies of the documents that by the time the detaining authority decided to furnish the same the writ petition itself came to be filed and an order was passed on 11-4-1990 directing the detaining authority to serve the order of detention, the grounds of detention and all the documents on or before 20th April, 1990. Accordingly, on 18-4-1990 the order of detention, grounds of detention and copies of the documents relied upon, were furnished to the detenu, therefore, there was no illegality whatsoever committed by the detaining authority. Regarding the other two contentions it is submitted that the order rejecting the bail application by the III Metropolitan Magistrate was not before the detaining authority nor it was relied upon; that the information received by the detaining authority regarding the rejection of bail was taken into consideration; therefore, the question of inclusion of the order rejecting the bail in the list of documents relied upon, did not arise. As far as the necessity to pass an order of detention is concerned, when the detenu was in the custody, the detaining authority considered this aspect and was of the opinion that it was necessary to pass an order of detention. Therefore, it is submitted by learned Advocate General that the order of detention does not suffer from any infirmity, as such, the petition is liable to be dismissed.
7. We now proceed to consider the contentions urged on both sides.
8. In this case, the order of detention was passed on 15-12-1989 against one Krishna in question who was already in judicial custody. In the case of detention of a person who is already in judicial custody, no sooner the order of detention is served on the detenu, he is deemed to have been kept under detention and the question of actually taking such person into custody does not arise because he is already in the custody under other laws.
9. In the instant case, the order dated 15-12-1989 passed by the 2nd respondent was tried to be served on the detenu who was in the central prison, Bangalore. But the detenu refused to receive it. The contention of the detenu is that no order of detention was served on him nor the copies of the documents and the grounds of detention were furnished to him. From the order dated 15-12-1989 (Annexure-F) it is clear that it directed the Senior Superintendent of Central Prison, Bangalore, to serve the original order of detention on the person named in the order and obtain the acknowledgment, with date and time of receipt by the said person, that is Krishna on the duplicate of the order. The signature, name, and designation of the officer serving the order along with date and time of service was also required to be mentioned on the served copy of the order and sent to the office of the detaining authority for record. The records placed before the Court reveal that there is a report dated 19-12-1989 made by the Senior Superintendent, Central Prison, Bangalore, to the detaining authority – respondents-2. The said report reads thus :
“Sub. : Detention of Sri Krishna alias Korangu S/o Subramanyam, 19 years, under the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1985 (Karnataka Act No. 12/1985);
Ref. : Your letter No. CRM/DTN/12/89-90 dt. December 15, 1989.
With reference to the above, I submit to inform that Sri M. T. Naik, Circle Inspector of Police, Market Sub-Division, has on this day the 19th December, 89 at 10.00 a.m. brought the above detention order along with connected records for service.
When the accused Krishna alias Korangu S/o Subramanyam was brought to serve the detention order on him, the accused has refused to accept the detention order grounds of detention and the documents and also refused to put signature on any records. In spite of all persuation made by the Superintendent, Assistant Superintendent and Chief Jailor of this office he adamently refused and only agreed to sign any document after consulting his advocate.
Therefore, the detention order was unserved. This is for further action in the matter.”
From the aforesaid report, it is clear that one M. T. Naik, Circle Inspector of Police, Market Sub-Division tried to serve the order of detention along with the connected records on 19-12-1989 on the detenu, he refused to accept the detention order, grounds of detention and the documents and also refused to put his signature on any records. The report also further states that in spite of all persuation made by the Superintendent, Assistant Superintendent and the Chief Jailor of Central Prison, Bangalore, he adamantly refused and agreed to sign any document after consulting his advocate.
10. Thus this is not a case in which it is possible to hold that neither the order of detention nor the copies of the documents and the grounds of detention were served on the detenu. Whenever a person refuses to receive any communication or the order when tried to be served, or tendered, the service must be deemed to have been effected. Similarly when the detenu refused to receive the order of detention, grounds of detention and the copies of the documents in spite of the best efforts made by the aforesaid officials, the order of detention must be deemed to have been served. Under Section 8 of the Act, the order of detention, the grounds of detention and the copies of the documents are required to be furnished to the detenu not later than 5 days from the date of detention. In the instant case, we have already pointed out that the date of detention should be construed as 19-12-1989 and not 15-12-1989 – the date on which the order of detention was passed. Therefore, the order of detention, the ground of detention and the copies of the documents were tried to be served on 19-12-1989 but the same were not received by the detenu. Therefore, it is not possible to appreciate the contention of the learned counsel for the petitioner that there has been an inordinate delay in furnishing the order of detention, grounds of detention and the copies of the documents. It is not open to a person who has refused to receive the order of detention, the grounds of detention and the copies of the documents to contend that the order of detention, the grounds of detention and the copies of the documents were not served, communicated or furnished to him. If, in the facts and circumstances of the case, the contention of the petitioner is accepted, it would result in putting a premium on the conduct of the detenu who has refused to receive the order of detention, the grounds of detention and the copies of the documents. Hence, we are of the view that in the facts and circumstances of the case, the contention that there has been inordinate delay in furnishing the order of detention, the grounds of detention and the copies of the documents, should be rejected and it is accordingly rejected.
11. On 12-2-1990, the detenu sent a representation to the Deputy Secretary, Home Department to furnish the order of detention, grounds of detention and copies of the documents relied upon in support of the order of detention. Under Section 8 of the Act, the detaining authority is required to communicate the order of detention, the grounds of detention and the copies of the document only once at the earliest opportunity but not later than 5 days from the date of detention to enable the detenu to make a representation to the State Government against the order of detention. In the instant case, there is no doubt that such an effort was made to serve the order of detention, grounds of detention and the copies of the documents; but the detenu refused to receive them. This, in law, amounted to service of the order of detention, copies of the documents and grounds of detention. There is no provision in the Act which places an obligation on the authority to serve the order of detention, copies of the documents and the grounds of detention once again for a second time or as and when the same are demanded by the detenu after once the order of detention, copies of the documents and the grounds of detention are furnished to the detenu as per Section 8 of the Act. Therefore, by not acceding to the request made by the detenu in his representation dated 12-2-1989 which was made after the order of confirmation was passed pursuant to the opinion rendered by the Advisory Board, it is not possible to hold that there is any failure on the part of the detaining authority or the State Government to comply with the requirement of Section 8 of the Act or there is any infraction of the right of the detenu ensured under Section 8 of the Act. But we would like to make it clear that even though in a situation like this, where the detenu has refused to receive a copy of the order of detention, grounds of detention and the copies of the documents and the order of detention has been confirmed by the State Government, nevertheless, his right to seek revocation of the order by invoking the power of the State Government under Section 14 of the Act or by invoking the jurisdiction of this Court under Art. 226. of the Constitution and of the Supreme Court under Art. 32 of the Constitution is not affected. Therefore, if for that purpose, the detenu, who has initially refused to receive the order of detention, grounds of detention and copies of the documents, subsequently makes a request for furnishing the same, the State Government shall have to furnish the same. Under the provisions of the Act, it is incumbent upon the State Government to serve the order of detention, communicate the grounds of detention and furnish the copies of the documents once within 5 days from the date of detention. Of course, when once it is done, there is no obligation to serve the same once again or accede to any such request of the detenu. Therefore, in a case where the detenu initially refuses to receive the order of detention, grounds of detention and copies of the documents, he can request for furnishing of the same on a subsequent date in order to avail the remedy available to him under Section 14 of the Act and Arts. 32 and 226 of the Constitution. In a situation like this, when the requirements Section 8 of the Act was complied with, inasmuch as, an effort was made to serve and the same was refused to be received by the detenu, non-supply of the copies of the order of detention, grounds of detention and the documents at a subsequent stage, when the detenu makes a request for furnishing the same, will vitiate the order of detention as it affects the right of the detenu to seek relief under S. 14 and Arts. 32 and 226 of the Constitution. Therefore, it is necessary for the State Government to furnish the copies of the order of detention grounds of detention and of the documents even when the detenu initially at the stage of Section 8 of the Act refuses to receive the same but subsequently makes a request for furnishing the same.
12. In addition to making a representation dated 12-2-1990, the detenu also made a further representation dated 26-2-1990. In that representation which has been reproduced above, the detenu not only requested for furnishing the copies of the documents, grounds of detention and the order of detention but also alternatively prayed for releasing him immediately on humanitarian grounds and also on the ground that he is innocent. Neither the State Government nor the detaining authority furnished the order of detention, grounds of detention and the copies of the documents nor the State Government considered the request of the petitioner for revoking the order of detention.
It is contended by Sri Kiran S. Javali, learned counsel for the petitioner that a representation made by the detenu for revoking the order of detention is required to be considered without undue delay. The learned counsel has placed reliance on a decision of the Supreme Court in Shalini Soni v. Union of India, and Harish Pahwa v. State of U.P., . In Shalini Soni’s case, the Supreme Court has held in categorical terms that there is no form of representation prescribed. So long as it contains a demand or a request for the release of the detenu in whatever from or language it is couched and a ground or a reason is mentioned or suggested for such release, there is no option but to consider and deal with it as a representation for the purpose of Art. 22(5) of the Constitution. The learned Advocate General tried to contend that as the representation dated 26-2-1990 was nothing but a continuation of the representation dated 12-2-1990 seeking for supply of a copy of the order of detention, grounds of detention and copies of the documents, and the request for releasing him was made only as an alternative prayer as such it could not be considered as a representation made against the order of detention and for releasing the detenu.
13. It is not possible to agree with the learned Advocate General. Though the representation dated 26-2-1990 referred to the earlier representation the detenu had made on 12-2-1990 for the supply of a copy of the order, grounds of detention and the copies of the documents, but nevertheless, it did contain a prayer, though alternatively that the detenu be released on humanitarian grounds and also on the ground that he is innocent. The explanation offered by the detaining authority in his statement of objections for the inordinate delay in considering the representation dated 26-2-1990 is as follows :
“9. It is submitted that the detenu had written a letter to the Deputy Secretary to Government, Home Department, on 12-2-1990 seeking for copies of the order and grounds of detention and since the said letter/representation was not sent as required under sections 8 and 10 of the Act as also as mentioned in the grounds of detention, the State Government has not considered the same. However, when the detenu sent another representation on 26-2-1990 to the Secretary to Government, Home Department, the same was forwarded to me vide letter No. HD/976/SST/89 dated 9-3-1990. The said representation was received in my office on 12-3-1990. Thereafter, the representation was proceeded and a decision was taken to serve the detenu the order and grounds of detention and accordingly, a letter was prepared to the Senior Superintendent, Central Prison, Bangalore, on 28-3-1990 requesting him to serve the order and grounds of detention enclosed to the said letter. On 28-3-1990, the Senior Superintendent, Central Prison, Bangalore, in his letter No. As. DTN. 10295/ 89-90 informed me that the detenu was transferred to Belgum Central Jail and that the copies should be sent to that place. In the meanwhile, the petitioner had also filed the above writ petition before this Hon’ble Court complaining about the non-supply of the order and Grounds of Detention and this Hon’ble Court by its interim order dated 11-4-1990 directed me to serve the order and grounds of detention on the detenu on or before 20-4-1990. Pursuant to the said order, the detenu was served with the order and grounds of detention on 18-4-1990. It is respectfully submitted that since the detenu himself had refused to receive the order and grounds of detention on the very first day when it was sought to be served on him, he cannot complain that the detaining authority has not served the order and grounds of detention.”
From the aforesaid explanation it is clear that even the first portion of the representation for furnishing a copy of the order, grounds of detention and copies of the documents was not considered inasmuch as the same were not furnished until this Court issued a direction in this writ petition on 11-4-1990. There is also no justification for non-consideration of the representation that in the event of not-supplying the order of detention, copies of the documents and the grounds of detention, the detenu be released. The representation dated 26-2-1990 was received by the detaining authority on 12-3-1990. It is stated by the detaining authority that on 28-3-1990, it was decided to furnish the order, grounds of detention and copies of the documents. When the representation contained a prayer for releasing the detenu even though it was made as an alternative prayer, it was a prayer for release, therefore, it ought to have been considered without undue delay.
14. The power of revocation is vested in State Government under Section 14 of the Act. Therefore, the representation dated 26-2-1990 was required to be considered within a reasonable period by the State Government. The fact remains that the representation was not at all viewed from the angle that it contained a request for releasing the detenu. Thus the representation of the detenu dated 26-2-1990 remained unconsidered by the State Government and it was forwarded to the 2nd respondent by the letter dated 9-3-1990 who received it on 12-3-1990 and decided to furnish the copies only on 28-3-1990. Thus there is not only inordinate delay in considering the representation whether viewed from the point of view that it was made for the supply of copies of the order, grounds of detention and of the documents or for releasing him. The delay is enormous and cannot at all be condoned.
15. In the matter of delay in considering the representation to release the detenu in Harish Pahwa’s case, the Supreme Court has held thus (Para 3) :
“We may make it clear, as we have done on numerous earlier occasions, that this Court does not look with equanimity upon such delays when the liberty of a person is concerned. Calling comments from other departments, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital importance. We would emphasis that it is the duty of the State to proceed to determine representations of the character above mentioned with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu.”
In that case, a representation dated 16-5-1980 was handed over by the detenu to the Varanasi Jail. The State Government received on 4-6-1980. For two days, no action was taken in connection with it. On 6-6-1980 comments were called for from the customs authorities with regard to the allegations made in the representation and the comments were received by the State Government on 13-6-1980. On 17-6-1980 the State Government referred the representation to the Law Department for its opinion which was furnished on 19-6-1980. The rejection of the representation was ordered by the State Government on 24-6-1980. It was held that there was no expeditous consideration of the representation and the order of detention was set aside on that ground alone. In the instant case, the representation for releasing the detenu has not been considered at all. Therefore, were are of the view that this ground alone is sufficient to entitle the detenu to have the order of detention quashed.
16. As there are other contentions advanced on behalf of the petitioner, we shall deal with them also.
17. The contention of the learned counsel for the petitioner is that the grounds of detention refer to the rejection of the request for bail by the III Metropolitan Magistrate, Bangalore, but the order passed by the III Metropolitan Magistrate, Bangalore, has not been included in the list of documents relied upon by the detaining authority, therefore, it amounts to non-furnishing of the material relied upon by the detaining authority. In the grounds of detention, the detaining authority has stated thus :
“You are now in judicial custody in the Central Prison, Bangalore, with U.T. No. 6265. Your bail application has been rejected by the III Metropolitan Magistrate, Bangalore City on 10-11-1989.”
In the statement of objections, the detaining authority has stated that this information was contained in the report made by the Assistant Commissioner of Police, for taking action under the Act and the order rejecting the bail was not before the detaining authority. From the aforesaid statement it is clear that what has been relied upon was the information as to the detenu being in the central prison as an under-trial prisoner and his bail application was rejected by the III Metropolitan Magistrate. Therefore, it is not possible to hold that a copy of the order rejecting the bail was before the detaining authority and it was relied upon by the detaining authority and even then the same was not included as one of the materials relief upon by the detaining authority. What was relied upon was only the information to that effect received by the detaining authority from the Assistant Commissioner of Police, Bangalore City and that information has been stated in the grounds of detention itself. Therefore, there is no illegality committed by the detaining authority in this regard. Hence the contention is rejected.
18. Lastly, it is contended that as the detenu was already in the judicial custody, and as his bail application was rejected on 10-11-1989, there was no question of detenu being at large; hence there was no compelling necessity to pass an order of detention. As such there was no nexus between the satisfaction alleged to have been arrived at by the detaining authority and the object of detention.
19. It is now well-settled that even when a person is in judicial custody, the order of detention can be passed. (see Dharmendra v. Union of India, ). In this decision, the law laid down in Rameshwar Shaw v. District Magistrate, Burdwan, has been approved. In such a case, it is necessary for the detaining authority to be further satisfied that there is compelling reason for passing an order of detention. In the instant case, the detaining authority being conscious of the fact that the detenu was already in judicial custody as he was involved in several criminal cases, he has further stated that as the bail was rejected only by the III Metropolitan Magistrate, Bangalore City on 10-11-1989, the detenu is likely to approach the Sessions Court or the High Court and when once he comes out of jail, he is likely to indulge in such activities again. In para 4(e) of the grounds of detention, the detaining authority stated thus :-
“……. Your daring and unscrupulous act of attacking Kitty and Bachan right in the presence of Jail Officials only goes to prove that the normal laws of the land have not been able to control your activities in any manner. I am aware that you are now in judicial custody. But I am of the opinion that the moment you come out on bail, you are likely to indulge in acts invoking breach of public order. Your acts of violence without any provocation indicate that unless you are detained under the prevention laws you are likely to act in a manner prejudicial to the maintenance of public order.”
Thus the detaining authority has stated that in spite of the fact that the detenu is in judicial custody, there is compelling reason to pass an order of detention under the Act having regard to the antecedents of the detenu, and also having regard to the fact that he is likely to be released on bail in future and in that event, he is likely to indulge in acts involving breach of public order and violence without any provocation.
20. On going through the grounds of detention, we are satisfied that the antecedents of the detenu are such that any authority acting reasonably would come to the only conclusion the detaining authority has arrived at, in the instant case. Therefore, we are of the view that the order of detention is not vitiated on this ground.
21. For the reasons stated above, though we are of the view that on merits, the order of detention does not suffer from any infirmity or illegality, but in view of the fact that the detaining authority has failed to consider the request of the detenu for releasing him, the order of detention is liable to be quashed.
22. For the reasons stated above, the writ petition is allowed. The order of detention dated 15-12-1989 passed by the 2nd respondent in No. CRM/DTN/12/89-90 and confirmed by the 1st respondent by the order bearing No. HD 976 SST 89 dated 26-12-1989 are hereby quashed. In this case, it is not necessary to issue any direction to set the detenu at liberty because he is in judicial custody in connection with several other criminal cases pending against him.
23. Petition allowed.