Karnataka High Court
Shrenika vs The State Of Karnataka And Ors on 31 August, 2023
Bench: Mohammad Nawaz, Rajesh Rai K
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
R
DATED THIS THE 31ST DAY OF AUGUST, 2023
PRESENT
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
WRIT PETITION NO. 201957/2023 (GM-RES)
BETWEEN
SMT. SHRENIKA
W/O HUCHAPPA @ DHANARAJ KALEBAG,
AGED ABOUT 28 YEARS, OCC: HOUSEHOLD WORK,
R/O WARD-1, LACHYAN ROAD,
AMBEDKAR NAGAR, INDI-586209,
DIST: VIJAYPUR.
...PETITIONER
(By SRI. S. S.MAMADAPUR, ADVOCATE)
AND
1. THE STATE OF KARNATAKA,
RED BY ITS SECRETARY,
DEPARTMENT OF INTERNAL
ADMINISTRATION (LAW AND ORDER),
Digitally signed by
SOMANATH VIDHAN SOUDHA,
PENTAPPA MITTE
Location: HIGH
BANGALORE-01.
COURT OF
KARNATAKA
2. THE DEPUTY COMMISSIONER AND
THE DISTRICT MAGISTRATE,
VIJAYPUR-586 101.
3. THE SUPERINTENDENT OF POLICE,
VIJAYPUR-586 101.
4. THE DEPUTY SUPERINTENDENT OF POLICE,
INDI-SUB DIVISION, INDI-586209.
....RESPONDENTS
(BY SRI. S. ISMAIL ZABIULLA, ADDL. ADV.GENERAL
AND SRI. MALLIKARJUN C. BASAREDDY, GA)
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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA, PRYING TO, ISSUE A WRIT OF
CERTIORARI OR ANY OTHER ORDER OR DIRECTION IN THE
NATURE OF A WRIT QUASHING THE DETENTION ORDER
PASSED BY THE 2ND RESPONDENT DATED 10.04.2023 IN CASE
BEARING NO. MAG/CR-24/2021-22 AS PER ANNEXURE-A IN
RESPECT OF DETENUE SRI. HUCHAPPA @ DHANARAJ S/O
MALLAPPA @ MALLIKARJUN KALEBAG. AND ISSUE A WRIT OF
CERTORARI OR ANY OTHER ORDER OR DIRECTION THE
NATURE OF WRIT QUASHING THE ORDER PASSED BY THE IST
RESPONDENT BEARING NO. HD 211 SST 2023 DATED
19.04.2023 AS PER ANNEXURE-D CONFIRMING THE ORDER OF
DETENTION PASSED BY THE 2ND RESPONDENT AS ILLEGAL
AND VOID.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
'B' GROUP AND HAVING BEEN HEARD AND RESERVED ON
16.08.2023, COMING ON FOR PRONOUNCEMENT THIS DAY,
RAJESH RAI K J., MADE THE FOLLOWING:
ORDER
Petitioner, wife of Sri.Huchappa @ Dhanaraj Kalebag,
(for short 'detenue') has filed the present petition being
aggrieved by the order of detention of her husband under
the provisions of The Karnataka Prevention of Dangerous
Activities of Bootleggers, Drug Offenders, Gamblers,
Gundas, Immoral Traffic Offenders, Slum-Grabbers and
Video or Audio Pirates Act, 1985 (hereinafter referred to as
"Goonda Act") dated 10.04.2023 passed by the District
Commissioner and District Magistrate, Vijayapur
(respondent No.2) in case bearing No.MAG-CR-24/2021-
22, as well as the confirmation order passed by the State
of Karnataka represented by its Secretary, Department of
Internal Administration (Law and Order), (respondent
No.1) vide order bearing No.HD 211 SST 2023 dated
19.04.2023 for a period of 12 months.
2. The undisputed facts of the case would reveal
that the petitioner is the wife of Sri.Huchappa @ Dhanaraj
Kalebag i.e., detenue and they both are the residents of
Ambedkar Nagar, Indi. It has been stated that the Deputy
Superintendent of Police Indi, Sub Division, Indi,
submitted a report bearing No.1702:2022 dated
04.10.2022 to the Superintendent of Police, Vijayapur for
accepting the proposal of Circle Inspector, Indi, for
invoking the provisions of Goonda Act against the detenue.
Based on the same, the respondent No.3 i.e.,
Superintendent of Police submitted a proposal to the
Deputy Commissioner and the District Magistrate,
Vijayapur, in case bearing No.16/DCRB/169/2023 dated
08.04.2023 to invoke the provisions of Goonda Act, 1985,
against the detenue for preventive detention under
Section 2(g) of the said Act. Accordingly, respondent No.3
i.e., sponsoring authority along with the proposal,
submitted compilation of documents containing the
particulars of the detenue i.e., social, educational,
economical background and the particulars of the cases in
which the detenue is allegedly involved. On the basis of
the said proposal submitted by respondent No.3 i.e.,
sponsoring authority, the respondent No.2 exercising the
powers under Section 3(1) of the Goonda Act passed an
order dated 10-04-2023 in case bearing No. MAG/CR-
24/2021-22 as per Annexure-A, detaining the detenue for
an initial period of 12 days starting from the date of
passing of the order. That on 10-04-2023 the detaining
authority supplied the documents to the detenue and
respondent No.2 also intimated the detenue about the
detention order dated 10.04.2023, that he can prefer an
appeal to the State Government and Advisory Board
against the order of preventive detention. Thereafter, the
respondent No.2 vide letter bearing No. MAG/CR-24/2021-
22 dated 11-04-2021 forwarded the proposal to
respondent No.1 for confirmation/approval of the order of
preventive detention of the detenue and based on such
proposal, the respondent No.1 i.e., State Government
confirmed the order of detention passed by respondent
No.2 vide order dated 19.04.2023 bearing order No.HD
211 SST 2023 as per Annexure-D and thereby directed the
detenue to be kept in detention for a period of 12 months
starting from 10.04.2023. The said order of detention is
challenged under this writ petition. However, before filing
this writ petition, the petitioner has filed WP.(HC) No.
200006/2023 before the co-ordinate bench of this Court,
which came to be disposed of by order dated 20.06.2023
reserving liberty to the petitioner to file appropriate writ
petition against the detention orders. Hence, the petitioner
filed this writ petition.
3. We have heard Sri.S.S.Mamadapur, learned
counsel for the petitioner and Sri. S.Ismail Zabiulla,
learned Addl. Advocate General appearing for
Sri.Mallikarjun C.Basareddy, Government Advocate
appearing for respondents.
4. Learned counsel for the petitioner vehemently
contended that the impugned orders at Annexures-A & D
passed by respondent Nos.1 & 2 being capricious, illegal
and arbitrary are liable to be quashed. He would further
contend that invocation of the provisions of Goonda Act
against the detenue in order to keep him under detention
for a period of 12 months is illegal and impermissible.
According to the counsel, as per the provisions of Section
3(2) of the Goonda Act, the authority at the first instance
has to pass an order of detention for a period of 3 months
and thereafter if the authority intends to detain further, it
has to pass further detention order for another period of 3
months i.e. after expiry of every three months there must
be fresh order of detention. Hence, the order of detention
for 12 months at one stretch being contrary to the
principles laid down by this Hon'ble Court and also to the
provisions of the Goonda Act. He would further contend
that as per the provisions of the Act, soon after the
detention, all the documents which the authority intends
to rely, should be placed before the Advisory board within
21 days along with the grounds of detention of the
detenue. However, in this case, those documents were
placed beyond the period of 21 days, which infringed the
rights of the detenue to defend his illegal detention. He
further contends that the sponsoring authority/respondent
No.3 has furnished a booklet containing various particulars
of the detenue running into 611 pages, but the sponsoring
authority has willfully and intentionally withheld several
other relevant documents which would have weighed in
the mind of the detention authority while passing the
impugned orders. Further the sponsoring authority has not
furnished the bail orders wherein the detenue was
enlarged on bail in the cases registered against him,
resulting in suppression of relevant material facts. He
would further contend that whenever the order of
detention is passed, sponsoring authority or the detaining
authority has to make available the grounds of detention
to the detenue and he should be informed about his right
to make an appeal to the State Government or the
Advisory Board. However, in this case, no such
opportunity was extended to the detenue. He also
contends that the translated, legible copy of the grounds
of detention were not supplied to the detenue to enable
him to file/submit effective representation as
contemplated under the provisions of Section 3(2) of the
Goonda Act.
5. According to the learned counsel most of the
relevant documents relied by the authority are in English
and Marathi languages. Though the authority translated
the documents of Marathi language to Kannada, the only
language which known to the detenue, but failed to
translate the documents which are in English language. As
such there is great miscarriage of justice caused to the
detenue to submit an effective representation before the
government or to the Advisory Board. Learned counsel
pointed out that several documents in the compilation
furnished by the detaining authority are not legible copies
so also not translated copies from English to Kannada
language since the detenue studied up to 3rd standard and
knows only Kannada language. Learned counsel would also
contend that there is no sufficient opportunity provided to
the detenue to submit his representation either before the
State Government or to the Advisory Board, as such there
is a clear violation of Section 3, 10, 11 and 12 of the
Goonda Act. Hence, he prays to allow the petition and
quash the impugned order passed by respondent Nos.1
and 2 at Annexures-A and D.
6. Per contra, learned Addl. Advocate General
appearing for respondents submit that the order of
detention passed by respondent No.1 dated 19.04.2023 in
respect of the detention of the detenue does not suffer
from any perversity or illegality and the same is based on
the report submitted by respondent No.4-Circle Police
Inspector, Indi, to respondent No.3 i.e. sponsoring
authority dated 04.10.2022 and also the proposal
submitted by respondent No.3 in case bearing
No.16/DCRB/169/2023 dated 08.04.2023 to invoke the
provisions of the Goonda Act. He would further contend
that there is no such procedural lapse committed by the
authority while invoking the provisions of Goonda Act, for
the detention of the detenue. The respondent Nos.1 and 2
after complying all the legal formalities as contemplated
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under the provisions of Goonda Act, passed the detention
order against the detenue.
7. The learned Addl. Advocate General, relied
upon the documents produced by respondent No.3 in
respect of the illegal activities pertaining to the detenue
and would submit that on a careful perusal of those
documents depicts that there are 10 cases pending against
the detenue under the provisions of IPC, out of those 10
cases the detenue is acquitted in 4 cases and 5 cases are
pending for trial in different Courts and 1 case is under
investigation. According to the report submitted by
respondent No.3, the detenue has committed the crimes
even after he was released from jail and continued to
commit the crimes till the order of detention and by
violating the externment order, he has entered the
Vijayapur District and attempted to commit henious
offences like kidnap and attempt to commit murder and he
has no fear of law. He has been involved in number of
cases and along with his gang members and he has been
attacking people with weapons and assaulting them in
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public places. Shopkeepers, vegetable and fruit vendors
are giving money to him on his demand as they are afraid
of him. Though there is information against him but no
one is coming forward to lodge complaint because of fear.
Inspite of taking adequate precautionary measures under
section 107 and 110 of Cr.P.C., there was no improvement
in the behavior of the detenue. He along with his gang
members continued to involve and commit various
offences like murder, attempt to murder, robbery and
threatening people for money etc., in an organized way.
Hence, in order to prevent that, the detention order is
passed under the provisions of Goonda Act. As such the
sponsoring authority has rightly passed the said order and
the same is sustainable under law.
8. Learned Addl. Advocate General also raised the
question of maintainability of the writ petition by
contending that the writ of certiorari is not maintainable in
case of illegal detention under Goonda Act and the
petitioner has to challenge the same in a writ of habeas
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corpus as held by the coordinate bench of this Court in
W.P.(HC) No.14/2023 dated 07.06.2023.
9. Learned Addl. Advocate General would further
contend that the detention order initially passed on
10.04.2023 and thereafter on 19.04.2023, the respondent
No.2 forwarded the order of detention to respondent No.1.
Considering the reasons mentioned in the report,
respondent No.1 passed the detention order on
19.04.2023. Further, on 12.05.2023 the State
Government placed the same before the Advisory Board
and the same was confirmed by the Advisory board vide
order dated 22.05.2023. The Advisory Board opined that
there is sufficient cause to detain the detenue. Therefore
there is no procedural lapse in the case and respondent
No.1 has rightly passed the detention order. Hence, he
prays to dismiss the petition. In support of his arguments,
he relied upon the judgment of the Hon'ble Apex Court in
the case of Union of India and others Vs. Dimple
Happy Dhakkad in Criminal Appeal No.1064/2019
(arising out of SLP Crl. No.5459/2019) and K.M.Abdulla
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Kunhi and Another Vs. Union of India and Others
reported in AIR 1991 574, and also the recent judgment
passed by the Hon'ble Apex Court in SLP (Criminal)
No.9492/2023 (Pesala Nookaraju Vs. The Government
of Andhra Pradesh and Others).
10. We have bestowed our anxious consideration to
the submission made by the learned counsel appearing for
the parties so also perused the documents available on
record.
11. Having heard the learned counsel for the parties
so also having perused the documents the point that
would arise for our consideration is;
"Whether the order passed by respondent
No.2 dated 10.04.2023 and respondent No.1
dated 19.04.2023 are sustainable under law?"
12. On careful perusal of the order passed by
respondent No.1 dated 19.04.2023 as per Annexure-D by
confirming the order passed by respondent No.2 dated
10.04.2023 as per Annexure-A, both the said orders
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passed under the provisions of Section 3(3), 3(1) and 3(2)
of the Goonda Act.
13. The statutory provisions of law governing the
field as contained under Sections 3, 10, 11 and 12 reads
as under:
"3. Power to make orders detaining certain
persons.- (1) The State Government may, if
satisfied with respect to any bootlegger or drug-
offender or gambler or goonda or [Immoral
Traffic Offender or Slum-Grabber or Video or
Audio pirate] that with a view to prevent him
from acting in any manner prejudicial to the
maintenance of public order, it is necessary so to
do, make an order directing that such persons be
detained.
(2) If, having regard to the circumstances
prevailing or likely to prevail in any area within
the local limits of the jurisdiction of a District
Magistrate or a Commissioner of Police, the State
Government is satisfied that it is necessary so to
do, it may, by order in writing, direct that during
such period as may be specified in the order,
such District Magistrate or Commissioner of
Police may also, if satisfied as provided in sub-
section (1), exercise the powers conferred by the
sub-section:
Provided that the period specified in the
order made by the State Government under this
sub-section shall not, in the first instance,
exceed three months, but the State Government
may, if satisfied as aforesaid that it is necessary
so to do, amend such order to extend such
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period from time to time by any period not
exceeding three months at any one time.
(3) When any order is made under this section
by an officer mentioned in sub-section (2), he
shall forthwith report the fact to the State
Government together with the grounds on which
the order has been made and such other
particulars as, in his opinion, have a bearing on
the matter and no such order shall remain in
force for more than twelve days after the making
thereof, unless, in the meantime, it has been
approved by the State Government.
10. Reference to Advisory Board.- In every
case where a detention order has been made
under this Act the State Government shall within
three weeks from the date of detention of a
person under the order, place before the
Advisory Board constituted by it under section 9,
the grounds on which the order has been made
and the representation, if any, made against the
order, and in case where the order has been
made by an officer, also the report by such
officer under sub-section (3) of section 3.
11. Procedure of Advisory Board.- (1) The
Advisory Board shall after considering the
materials placed before it and, after calling for
such further information as it may deem
necessary from the State Government or from
any person called for the purpose through the
State Government or from the person concerned,
and if, in any particular case, the Advisory Board
considers it essential so to do or if the person
concerned desire to be heard, after hearing him
in person, submit its report to the State
Government, within seven weeks from the date
of detention of the person concerned.
(2) The report of the Advisory Board shall specify
in a separate part thereof the opinion of the
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Advisory Board as to whether or not there is
sufficient cause for the detention of the person
concerned.
(3) When there is a difference of opinion among
the members forming the Advisory Board, the
opinion of the majority of such members shall be
deemed to be the opinion of the Board.
(4) The proceedings of the Advisory Board and
its report, excepting that part of the report in
which the opinion of the Advisory Board is
specified, shall be confidential.
(5) Nothing in this section shall entitle any
person against whom a detention order has been
made to appear by any legal practitioner in any
matter connected with the reference to the
Advisory Board.
12. Action upon report of Advisory Board.-
(1) In any case where the Advisory Board has
reported that there is, in its opinion, sufficient
cause for the detention of a person, the State
Government may confirm the detention order
and continue the detention of the person
concerned for such period, not exceeding the
maximum period specified in section 13, as they
think fit.
(2) In any case where the Advisory Board has
reported that there is, in its opinion, no sufficient
cause for the detention of the person concerned,
the State Government shall revoke the detention
order and cause the person to be released
forthwith."
14. The aforesaid statutory provisions depicts that
when any order is made under Section 3(3) by an officer
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mentioned in sub-section (2), he shall forthwith report the
fact to the State Government together with the grounds on
which the order has been made and such other particulars
as, in his opinion, have a bearing on the matter and no
such order shall remain in force for more than 12 days
after the making thereof, unless, in the meantime, it has
been approved by the State Government.
15. On a careful perusal of the case on hand, the
respondent No.2 on the basis of proposal submitted by
respondent No.3-sponsoring authority exercising the
powers under Section 3(1) of the Goonda Act passed an
order dated 10.04.2023 by detaining the detenue for a
period of 12 days. Subsequently, the respondent No.1 vide
order bearing No.HD 211 SST dated 19.04.2023 confirmed
the said order at Annexure-A by directing the detenue to
be kept in detention for a period of 12 months starting
from 10.04.2023.
16. The Division Bench of this Court in the case of
Earanna Alias Bonda Earanna Vs. State of Karnataka
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and Others, reported in 2016(5) Kar.L.J. 81(DB), held
at paragraph No.8 is as under:
"8. The Apex Court has noticed that the State
Government, the District Magistrate or the
Commissioner of Police are the authorities
conferred with the power to pass orders of
detention. The only difference is that the order of
detention passed by the Government would
remain in force for a period of three months in
the first instance whereas similar orders passed
by the District Magistrate or the Commissioner of
Police shall remain in force for an initial period of
12 days. The continuance of detention beyond 12
days would depend upon the approval to be
accorded by the Government in this regard, sub-
section (3) of Section 3 makes this clear. Section
13 of the Act mandates that the maximum
period of detention under the Act is 12 months.
It is to be noticed that it is also the same under
the Karnataka Act insofar as the maximum
period of detention is concerned. The Supreme
Court has interpreted the scheme of the Act as
not providing for the extension of the period of
detention beyond a period of three months at a
time. In other words the Apex Court has held
that if the Government intends to detain an
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individual under the Act for the maximum period
of 12 months, there must be an initial order of
detention for a period of three months and at
least three orders of extension, for a period not
exceeding three months each, and has also
expressed that the requirement to pass orders of
detention from time to time in the manner as
stated above was nothing but an implementation
of the mandate contained in clause (4)(a) of
Article 22 of the Constitution of India.
17. However, The Hon'ble Apex Court in
Nookaraju's case stated supra, at paragraph Nos.42 and
43 held as under;
"42. Hence, Article 22(4)(a) in substance
deals with the order of detention and has nothing
to do with the delegation of the power of
detention by the State Government to an Officer
as stipulated under Section 3(2) of the Act. In
fact, under Section 9 of the Act, the State
Government has to refer the matter to the
Advisory Board within three weeks from the date
of detention, irrespective of whether the
detention order is passed under Section 3(1) or
Section 3(2) of the Act and the Advisory Board
has to give its opinion within seven weeks from
the date of detention. That would totally make it
ten weeks. As stipulated in Article 22(4)(a) of
the Constitution, if in a given case, once the
Advisory Board gives its opinion within the
stipulated period of three months, then in our
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view, Article 22(4)(a) would no longer be
applicable. Thus, Article 22(4)(a) applies at the
initial stage of passing of the order of detention
by the State Government or by an officer who
has been delegated by the State Government
and whose order has been approved by the State
Government within a period of twelve days from
the date of detention and not at the stage
subsequent to the report of the Advisory Board.
Depending upon the opinion of the Advisory
Board, under Section 12 of the Act, the State
Government can revoke the order of detention
and release the detenu forthwith or may confirm
the detention order and continue the detention of
the person concerned for any period not
exceeding the maximum period of twelve
months, which is stipulated in Section 13 of the
Act. Therefore, when the State Government
passes a confirmatory order under Section 12 of
the Act after receipt of the report from the
Advisory Board then, such a confirmatory order
need not be restricted to a period of three
months only. It can be beyond a period of three
months from the date of initial order of
detention, but up to a maximum period of twelve
months from the date of detention.
43. We reiterate that the period of three months
stipulated in Article 22(4)(a) of the Constitution
is relatable to the initial period of detention up to
the stage of receipt of report of the Advisory
Board and does not have any bearing on the
period of detention, which is continued
subsequent to the confirmatory order being
passed by the State Government on receipt of
the report of the Advisory Board. The
continuation of the detention pursuant to the
confirmatory order passed by the State
Government need not also specify the period of
detention; neither is it restricted to a period of
three months only. If any period is specified in
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the confirmatory order, then the period of
detention would be upto such period, if no period
is specified, then it would be for a maximum
period of twelve months from the date of
detention. The State Government, in our view,
need not review the orders of detention every
three months after it has passed the
confirmatory order."
18. Hence, on careful perusal of the dictum laid
down by the Hon'ble Apex Court in the above judgment it
is clear that the continuation of the detention pursuant to
the confirmatory order passed by the State Government
need not also specify the period of detention, neither is it
restricted to a period of 3 months. Only if any period is
specified in the confirmatory order then the period of
detention would be up to such, if no period is specified,
then it would be for a maximum period of 12 months from
the date of detention. The State Government need not
review the order of detention every three months after it
has passed the confirmatory order. Hence, in our
considered view, there is force in the submission made by
the learned Addl. Advocate General that the detention
order is not bad in law due to not extending periodically
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i.e., once in 3 months as contended by the learned counsel
for the petitioner.
19. A careful perusal of the documents submitted
by the respondent No.3-sponsoring authority to the
detenue, i.e., the compilation of documents/booklet
running into 611 pages in respect of the cases and the
grounds for his detention, as rightly pointed out by the
learned counsel for petitioner, the sponsoring authority
has not furnished translated copies i.e., English to
Kannada language and legible copies of those documents
to enable the detenue to make his effective representation
both before the Government and Advisory Board. The said
position of law is settled by the co-ordinate bench of this
Court in Writ Petition (HC) No.33/2022 between
Smt.Parvathamma Vs. Commissioner of Police and
others, wherein it is held that non-supply of the legible
documents/copies to the detenue, withholds his right to
make proper representation before the Advisory Board.
The same is in utter violations of the provisions of Article
22(5) of the Constitution of India.
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20. In another judgment of the co-ordinate bench
of this Court in Writ Petition (HC) No.51/2022 between
Smt.R Ramya Vs. Commissioner of Police and others,
held in a similar manner. Even the co-ordinate Bench of
this Court in WPHC No.39/2023 between Smt.Shruthi
T.K., Vs. Deputy Commissioner and District
Magistrate and Others, has recently re-iterated the
settled principle of law to that effect wherein at paragraph
No.6 has observed as under;
"In the instant case, the documents which
have been filed to the detenue have been
produced before us. Learned High Court
Government Pleader has also gone through the
same and was unable to dispute the statement
that the documents supplied to the detenue
were not legible. Thus, it is evident that the
detenue has been deprived of his right to
make an effective representation. Therefore,
the order passed under Section 3(1) and
Section 3(3) of the Act cannot be sustained in
the eye of law."
21. On careful perusal of the
compilation/documents supplied by the detaining
authority, the detaining authority has failed to furnish the
translated copies of some of the documents to the detenue
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i.e., Page Nos.41 to 44, 49 to 52, 53 and 54, 93, 101 to
112, 113 to 127, 131 to 151, 167 to 169, 178 to 186 and
189 to 197 and most of those documents are in English
language and which are not translated to Kannada
language and some of the documents are also not legible.
22. It is an admitted fact that the detenue has
studied upto 3rd standard and do not know English
language, as such it is bounden duty of the detaining
authority to provide the translated copies of those
documents. Nevertheless, the law contemplates that in
order to give an effective representation to the
Government and before the Advisory Board, such an
opportunity has to be provided to the detenue by the
detaining authority. In the case on hand, even the
detaining authority has failed to made known the grounds
of detention to the detenue within the specified period of
21 days as contemplated under Section 3(3) of the
Goonda Act.
23. The co-ordinate Bench judgment of this Court in
the case of Iranna Vs. Government of Karnataka and
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Others, reported in 2006(4) Kar.L.J.200 (DB), by
relying the judgment of the Hon'ble Supreme Court in the
case of Abdul Latif Abdul Wahab Sheikh Vs. B.K.Jha
and Another, reported in AIR 1987 SC 725 and the case
of S.M.D. Kiran Pasha Vs. Government of Andhra
Pradesh and Others, reported in (1990) 1 SCC 328, it
is held at paragraph No.6 as follows;
"From the aforesaid judgments of the
Supreme Court, it is clear that the procedural
requirements, are the only safeguards available
to a detenue since the Court is not expected to
go behind the subjective satisfaction of the
detaining authority. The procedural requirements
are therefore, to be strictly complied with, if any
value is to be attached to the liberty of the
subject and the constitutional rights guaranteed
to him in that regard. Section 10 makes it
mandatory for the Government to place the
ground on which the detention order has been
made and the representation, if any made by the
person affected by the order and in case where
an order has been made by an officer, also the
report by officer under sub-section (3) of Section
3 of the Act before the Advisory Board. This
being a mandatory provision which has to be
complied with under Article 22 of the
Constitution of India, a person cannot be kept in
detention beyond three months without referring
his case to an Advisory Board. If the procedural
requirements of law has not been complied with,
the order of detention ceases to be in existence
after the expiry of three weeks from the date of
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detention and therefore, the said order of
detention is liable to be quashed."
24. In the case on hand, the initial detention order
as per Annexure-A, passed on 10.04.2023. Admittedly, the
detenue was produced before the Advisory board on
16.05.2023. As per the relevant provisions of Goonda act,
the detenue shall produce before the Advisory Board
within 21 days. But in the instant case, the respondents
failed to produce the detenue within the stipulated period
i.e., on or before 01.05.2023. Nevertheless, there was no
sufficient opportunity given to the detenue to submit his
representation either before the Government or before the
Advisory Board as contemplated under Section 3(3) of the
Goonda Act which not only a gross violation of the
provisions of law but also the violation of natural justice
under Article 22(5) of the Constitution of India as per the
settled position of law by this Court and Hon'ble Apex
Court stated supra.
25. The arguments advanced by the learned Addl.
Advocate General in respect of the maintainability of the
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writ petition is concerned, though the coordinate bench of
this Court in WP(HC) No.14/2023 held that in case of
preventive detention, a writ of habeus corpus is
maintainable, nevertheless in the case on hand,
admittedly the appellant approached this Court by filing a
writ of habeas corpus No.200006/2023 and the co-
ordinate bench of this Court by relying the judgment
rendered by the co-ordinate bench of this Court in
WP(HC).No.100008/2023 disposed the said writ petition
by reserving liberty to the petitioner to file appropriate
writ petition. Hence, the petitioner once again approached
this Court by filing this writ petition. Hence, in our
considered view, this writ petition is maintainable due to
the liberty granted by the coordinate bench of this Court in
W.P.(HC)No.200006/2023 dated 20.06.2023.
26. Though the learned Addl. Advocate General
relied upon the judgment of the Hon'ble Apex Court in
Dimple's case stated supra, on careful perusal of the
dictum laid down by the Apex Court in the said judgment
that detaining authority must be satisfied that the detenue
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is likely to be released and the nature of activities of the
detenue indicate that if he is released, he is likely to
indulge in such prejudicial activities and therefore, it is
necessary to detain him in order to prevent him from
engaging in such activities. But in the case on hand, the
respondent authority have failed to substantiate the said
aspect for the reasons that, though the respondents stated
10 case pending against the detenue, but out of those 10
cases 4 cases were already acquitted and 1 case is on trial
stage. Most of the cases are of the year 2013, 2015 and
2018. There are no such recent cases filed against the
detenue. Further, as discussed supra though the detaining
authority served the documents to the detenue but the
translate and legible copies are not supplied to the
detenue. Hence, the judgment cited by the Addl.
Advocate General are not applicable to the present case.
27. As we are dealing with the case of personal
liberty of the detenue since he is in detention from
10.04.2023 and respondents have failed to comply the
mandatory provisions contemplated under the Goonda Act
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and also the order of detention is passed against the law
laid down by the Hon'ble Apex Court and also the
coordinate bench of this Court in catena of judgments, we
are of the considered view that the order of detention
passed by respondent Nos.1 and 2 as per Annexure-D and
A respectively are liable to be quashed. In that view of the
matter, the petition deserves to be allowed. Hence, we
answer the point raised above and proceed to pass the
following;
ORDER
a. The petition is allowed.
b. The detention order dated 10.04.2023 passed by
respondent No.2 in case bearing No.MAG-CR-
24/2021-22 and the order dated 19.04.2023
SST 2023, are quashed. Consequently, the
respondents are directed to set the detenue at
liberty.
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c. Registry is directed to communicate the order to
the respondent Nos.1 and 2 as well as the Jail
authorities to release the detenue forthwith, in
case, he is not required in any other cases.
Sd/-
JUDGE
Sd/-
JUDGE
msr
