Smt. Haseena vs The Deputy Commissioner, ...
2021 Latest Caselaw 2355 Kant

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            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

         DATED THIS THE 23rd DAY OF JUNE 2021

                           PRESENT
           THE HON'BLE MR.JUSTICE S.G.PANDIT
                             AND
          THE HON'BLE MR.JUSTICE M.G.S.KAMAL

            WRIT PETITION (HC) NO.200008/2021

BETWEEN:

Smt.Haseena
W/o.Saiphan Makandar,
Age: 28 years,
Occ: Housewife,
Akkamahadevi Nagar, Indi,
Vijaypura-586 209.                  ...PETITIONER

(By Sri.Vishal Pratap Singh, Advocate)

AND:

1. The Deputy Commissioner,
Vijayapura District,
Vijayapura-586101.

2. The Secretary,
Home Department - Law and Order,
Vidhan Soudha,
Bengaluru-560 001.

3. The Superintendent of Police,
Vijayapura-586 101.                 ...RESPONDENTS

(BySri.Archana P.Tiwari, Addl.Govt. Advocate)
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        This WPHC is filed under Articles 226 and 227 of the
Constitution of India, praying to declare the detention of
Saiphan S/o.Razaksab Makandar vide order dt.08.12.2020
bearing No.MAG/CR-45/2020-21 passed by Respondent No.1
which is marked and filed as Annexure-A as illegal and void ab-
initio.

     This petition having been heard and reserved for
judgment on 18.06.2021, coming on for pronouncement of
Judgment, this day, M.G.S.KAMAL, J., made the following:-

                               ORDER

This Writ Petition under Article 226 of the Constitution of

India is filed by Smt.Haseena, wife of one Saiphan Makandar

seeking following reliefs:

i) Declare the detention of Saiphan s/o.Razaksab Makandar vide order dated 08.12.2020 bearing No.MAG/CR-45/2020-21 passed by Respondent No.1 which is marked and filed as Annexure-A as illegal and void ab-initio;

ii) Declare the detention affirmation order of Saiphan s/o.Razaksab Makandar vide order dated 22.01.2021 bearing No.HD 125 SST 2020 passed by Respondent No.2 which is marked and filed as Annexure-E as illegal and void ab-initio;

iii) Pass such other orders including the release of the detenue forthwith as this Hon'ble Court may deem fit in the interest of justice.

2. Facts leading to filing of the present petition briefly

stated are that the third respondent had recommended the first

respondent to invoke Section 3(1) of the Karnataka Prevention

of Dangerous Activities of Bootleggers, Drug Offenders,

Gamblers, Goondas [Immoral Traffic Offenders, Slum Grabbers

and Video or Audio Pirates] Act, 1985 (hereinafter referred to as

'the Act') and to declare the aforesaid husband of the petitioner

(hereinafter referred to as 'detenue') as goonda and

consequently to pass an order of his detention under the Act.

That pursuant to the said recommendation exercising the

powers under Section 3 of the Act, first respondent passed

order dated 08.12.2020 as per Annexure-A for preventive

detention of the detenue. That on the very same day, first

respondent furnished compilation of copies of documents

consisting of 1,078 pages to the detenue. That the detenue

was already in judicial custody in Crime No.27/2020 registered

by Babaleshwar Police Station for the offence punishable under

Sections 25(1)(a), 29(a)(b) of the Arms Act, 1959 and that he

has been in judicial custody from 07.11.2020. That the

detenue was informed that the aforesaid order of detention was

appealable and the same could be challenged before the

advisory committee. That the matter was taken up by the

advisory committee through Video Conference on 11.01.2020.

That the second respondent passed an order dated 22.01.2021

as per Annexure-E affirming the order of detention passed by

first respondent and directed the detenue to be detained for a

period of twelve months from 08.12.2020 under the provisions

of the Act. That aggrieved by the aforesaid order dated

08.12.2020 and 22.01.2021 passed by first respondent and

second respondent, respectively, the petitioner being the wife of

the detenue has approached this Court praying for issue of writ

of habeas corpus.

3. Learned counsel for the petitioner reiterating the

grounds urged in the petition submits that there has been no

application of mind to the material on record by the first

respondent before passing of the order of preventive detention.

That mere pendency of number of cases would not justify

invocation of provisions of the Act requiring preventive

detention. That the procedure established under law and the

legal precedents have been strictly followed. The subsequent

order passed by second respondent affirming the detention of

detenue for a period of twelve months is also unsustainable

inasmuch as the first order itself was devoid of any grounds or

satisfaction of the authority passing the order, viz., first

respondent.

4. He further submits that the detenue was already in

prison having voluntarily surrendered before the court in Crime

No.27/2020 on 17.11.2020, as such, the question of invoking

the order under the provisions of the Act does not arise. That

the first respondent has not furnished the grounds and the

reasons forming basis of the order of detention as mandatorily

required under the law. He relied upon the judgment of this

Court in the case of Smt.JAYAMMA vs. COMMISSIONER OF

POLICE, BENGALURU reported in ILR 2019 KAR 1543 and

also the order dated 02.06.2021 passed by this Court in the

case of Smt.Tarannum C.Inamdar vs. The Deputy

Commissioner in Writ Petition (HC) No.200014/2020

(D.D.02.06.2021). He submits that the impugned order of

detention does not satisfy the guidelines laid down in the case

of Jayamma (supra) and reiterated by this Court in the

subsequent order. Hence, seeks for allowing of the writ

petition.

5. Learned Additional Government Advocate on the other

hand, defends and justifies the order of detention. Referring to

the counter-affidavit filed by first respondent along with the

documents consisting of 1078 pages, submits that there is no

infirmity or illegality in the orders of detention passed by first

respondent and second respondent, respectively. Referring to

the letter dated 03.10.2020 addressed by the third respondent

to the first respondent which is produced as document No.1 in

the compilation. It is submitted that the same forms the basis

of the order dated 08.12.2020 passed by the first respondent.

She further submits that the detenue was heard through video

conference by the Advisory Committee on 11.01.2021 and that

it is only thereafter, the second respondent confirmed the order

of detention for a period of twelve months. It is submitted that

the mandatory provisions of the Act have been complied with

and that there is no infirmity or illegality. Hence, seeks for

dismissal of the petition.

6. Heard the counsel and perused the records.

7. The only question arises for consideration is:

"Whether the order of detention dated 08.12.2020 passed by the first respondent and the

subsequent order dated 22.01.2021 passed by the second respondent are in accordance with law and justified?"

8. Section 8 of the 1985 Act requires disclosure of

grounds of order of detention to persons affected by the order,

which reads as follows:

"8. Grounds of order of detention to be disclosed to persons affected by the order.- (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the State Government.

             (2)    Nothing      in    sub-section      (1)     shall
      require the authority to disclose facts which                 it

considers to be against the public interest to disclose.

9. In the instant case, it is seen that the detenue was

already in judicial custody having been voluntarily surrendered

in Crime No.27/2020 on 17.11.2020. The order of detention

dated 08.12.2020 passed by the first respondent purportedly in

exercise of power under Section 3(1) of the Act, while listing the

criminal cases registered against the detenue under various

provisions of Indian Penal Code and other acts, concludes by

stating that the detenue is ordered to be kept under detention

from 08.12.2020 until further orders in the Central Jail and

that the basis and reasons for the said order are enclosed.

10. On a close perusal of the said order dated

08.12.2020, it does not evince that there is compliance of the

mandatory requirement contemplated under Section 8 of the

Act. In that the order does not mention the grounds on which

the detention is ordered. Excepting listing of the cases, it does

not reveal the basis on which the first respondent arrived at a

conclusion to pass the order of detention. The compilation of

1078 pages consist of a letter dated 03.10.2020 issued by the

third respondent to the first respondent recommending to

detain the detenue under the provisions of the Act and the

documents of various proceedings apparently pending against

the detenue. Though the aforesaid order dated 08.12.2020

states that the grounds and material for detention are

enclosed, the same is neither placed on record along with

objection statement nor is it found in the records produced

before the court.

11. The law in these matters is well settled. This Court

in the case of Jayamma (supra), has laid down detailed

guidelines and the procedure to be followed by the detaining

authority while passing the detention order. The said

principles of law and the guidelines laid down in the said case

have been reiterated by this Court in its order dated

02.06.2021 in WP(HC) No.14/2020. It is needless to extract

the same in this matter. The order dated 08.12.2020 at

Annexure-A is well short of compliance of the mandatory

provisions of Section 8 of the Act let alone compliance with the

guidelines and procedures laid down by this Court in the case

of Jayamma (supra). The first respondent has not even

referred to the documents in compilation or their contents in

the impugned order except mechanically reproducing the

numbers of the criminal cases pending against the detenue.

There is not even a whisper even to the letter dated 03.10.2021

issued by the third respondent recommending and proposing to

invoke the provisions of the Act and to pass the order of

detention. In any case, the letter dated 03.10.2020 issued by

the third respondent to the first respondent can hardly form

the basis and compliance as contemplated under Section 8 of

the Act.

12. For the sustainability of the order of detention the

real test is the strict compliance of the procedural safe-guards

and not the severity of the offences alone. The reasons for the

compliance with the mandatory requirement are not far to

seek. Under the Preventive Detention Law as that of in the

instant case, there is no provision for adjudication of propriety

or otherwise of the order determining the detenue as goonda or

otherwise as defined under the Act. There is also no provision

under the Act for the detenue to seek release on bail. It is only

on the basis of the subjective satisfaction of the authority the

order of detention is passed. This subjective satisfaction of the

authority therefore should not be arbitrary or perverse. The

subjective satisfaction should palpably emanate from the order

of detention therefore disclosure of grounds and the reasons

thereof is imperative.

13. In the instant case, we do not see the compliance

of the procedural safeguard provided under the Act and

repeatedly emphasized and laid down by the courts of law. The

first respondent has not formulated the grounds and has not

given reasons for his satisfaction to pass the order of detention.

Thus, we are of the considered view that order dated

08.12.2020 and the order dated 22.01.2021 at Annexures-A

and E are not in compliance with the provisions of the Act and

the guidelines and procedures laid down by the courts.

14. For the foregoing analysis, the Writ Petition is

allowed. Order dated 08.12.2020 bearing No.MAG/CR-

45/2020-21 passed by the first respondent at Annexure-A and

order dated 22.01.2021 bearing No.HD/125 SST 2020 passed

by the second respondent as per Annexure-E is quashed and

the detenue shall be released forthwith.

15. In view of the statement made by the petitioner in the

writ petition that the detenue is already in the judicial custody

having voluntarily surrendered in Crime No.27/2020 on

17.11.2020 pending on the file of II Addl. Civil Judge and

JMFC-II, Vijayapura, it is made clear that this order shall not

be used for the release of detenue if he is detained under any

other law. This order is only in respect of the detention of the

detenue made pursuant to the order dated 08.12.02020 as per

Annexure-A and order dated 22.01.2021 as per Annexure-E.

Sd/-

JUDGE

Sd/-

JUDGE

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