Karnataka High Court
Smt. Shilpa vs State Of Karnataka By Its on 20 December, 2023
Author: K.Somashekar
Bench: K.Somashekar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS 20TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
WPHC NO.53 OF 2023
BETWEEN
SMT. SHILPA,
W/O MANJUNATH,
AGED ABOUT 29 YEARS,
R/AT, #1789,
SHANTHINAGAR,
1ST CROSS, DAIRY CIRCLE,
KARANJIKATTE, KOLAR.
PIN CODE-563 101.
...PETITIONER
(BY SRI. RANGANATH REDDY R, ADVOCATE)
AND
1. STATE OF KARNATAKA BY ITS
UNDER SECRETARY,
LAW AND ORDER DEPARTMENT,
VIDHANA SOUDHA,
BENGALURU-560 001.
2. THE DEPUTY COMMISSIONER
AND DISTRICT MAGISTRATE,
KOLAR DISTRICT, KOLAR,
PIN CODE-560 001.
3. THE SUPERINTENDENT OF POLICE,
KOLAR DISTRICT,
PIN CODE-563 103.
4. THE SUPERINTENDENT,
BANGALORE CENTRAL PRISON,
2
PARAPANA AGRAHARA,
BANGALORE,
PIN CODE-572 129.
...RESPONDENTS
(BY SRI. ANOOP KUMAR, HCGP)
THIS WPHC IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF HABEAS CORPUS AND TO DECLARE THE DETENTION OF
THE DETENUE SRI. M.MANJUNATH BY ORDER BEARING NO.MAG
(2)CR/L AND O(G)/02/2022-23 DATED 17.03.2023 VIDE
ANNEXURE-A, GOVERNMENT SANCTION ORDER BEARING NO.HD
170 SST 2023 DATED 27.3.2023 VIDE ANNEXURE-C AND
GOVERNMENT CONFIRMATION ORDER NO.HD 170 SST 2023 DATED
18.4.2023 VIDE ANNEXURE-D AS ILLEGAL AND VOID AND SET THE
DETENUE AT LIBERTY IN THE INTEREST OF JUSTICE.
THIS WPHC HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 07.12.2023, COMING ON FOR PRONOUNCEMENT THIS
DAY, RAJESH RAI.K, J., MADE THE FOLLOWING:
ORDER
This writ petition takes exception from the order of detention
passed by the 2nd respondent vide dated 17.03.2023 bearing
No.MAG (2) CR/L &O(G)/02/2022-23, subsequent confirmation
order passed by the respondent-State dated 27.03.2023 bearing
No.HD 170 SST 2023 and consequent sanction order dated
18.04.2023.
2. Petitioner, who is the wife of the detenu Sri. Manjunath
@ Kachcha Manju, is knocking the doors of the writ Court, seeking
relief in the nature of Habeas corpus, aggrieved by the order of
detention passed supra.
3. The facts-in-brief that are apposite for consideration of
the case on hand as borne out from the pleadings are as follows -
One Sri Manjunath @ Kaccha Manju who is alleged to be a
habitual offender and who is involved in criminal activities in and
around Kolar City since 2011 and against whom a rowdy sheet was
also opened vide order dated 23.12.2011, was declared threat to
society and in this regard, a proposal was forwarded by respondent
No.3-Police to respondent No.2-District Magistrate on 08.01.2023
bearing Letter No.DCRG/GOONDA/2/2023. On perusal of the same,
respondent No.2-District Magistrate was pleased to pass an order of
detention on 17.03.2023 under The Karnataka Prevention Of
Dangerous Activities Of Bootleggers, Drug-Offenders, Gamblers,
Goondas, [Immoral Traffic Offenders, Slum-Grabbers And Video Or
Audio Pirates] Act, 1985 (for short 'Goonda Act'), vide order dated
17.03.2023. The order of detention came to be executed and
communicated to the detenu on the same day. Pursuantly, the said
order was forwarded to respondent No.1-State for confirmation and
respondent-State after considering the materials provided, was
pleased to confirm the detention order passed as against the detenu
by the respondent No.2-District Magistrate on 27.03.2023 vide G.O
No.HD 170 SST 2023, which was communicated to the detenu on
28.03.2023. Further, the said detention order and confirmation
order was placed before the Advisory Board on 11.04.2023 along
with representation of the detenu made on 24.03.2023. Advisory
Board after hearing both detenu and respondent-State Authorities,
was pleased to reject the representation filed by the detenu and
uphold the detention order vide order dated 12.04.2023.
Thereafter, the representation was also placed before the State
Government and State Government was also pleased to reject the
representation filed by the detenu on 15.04.2023. Subsequently,
State also confirmed the detention order passed by the Second
respondent-District Magistrate vide order dated 18.04.2023 bearing
No.HD 170 SST 2023 which was communicated to the detenu on
19.04.2023. It is in this background, pleading violation of
Fundamental Rights enshrined under Article 22(5) of the
Constitution, petitioner has approached this Court.
4. Learned counsel for the petitioner contends that the last
offence that was alleged to be committed by the petitioner is one in
Crime No.640/2022 registered on 28.12.2022 by Kolar Rural Police
for Offences punishable under Sections 406, 420 of IPC and the
detention order was passed against him on 17.03.2023. It is on
this ground, the learned counsel contends that there is no nexus
between last committed crime and the detention order as the
detention order is passed after a delay of nearly 79 days of him
being alleged to be involved in committing the crime. Hence, he
would submit that every order of detention shall bear live and
proximate link to the crime committed as preventive detention is a
device that is used only for protection of the society but not with an
object to punish a man who is involved in harming any private
person. Any delay caused in passing the detention order from the
date of involvement in the last alleged crime would be vital and also
if not properly reasoned, would prove the detention order dehors
the Constitutional mandates. Learned counsel in support of his
contention places reliance upon the decision of Hon'ble Apex Court
in Rabindra Kumar Ghosel @ Buli vs. The State of West
Bengal reported in AIR 1975 SC 1408 and Sushanta Kumar
Banik vs. State of Tripura and Ors. reported in 2022 Live
Law(SC) 813.
5. He would also further vehemently contend that the
detenu was neither arrested nor a bail application was moved in the
last alleged crime committed by the detenu. As he, at his own
volition, has visited to the Police station wherein he was detained.
Hence, there was no imminent possibility of breach of public peace.
Learned counsel submits that the very act of respondents passing
the impugned detention order without considering the above aspect
is in itself vitiates the legality of detention order passed.
6. Further, the learned counsel for petitioner submits that
the detaining Authority though have supplied the grounds for
detention of the detenu but has not corroborated the same with
reliable documented reasons. Further, he would also submit that
the very act of State Government extending the period of detention
for a period of 1 year is bad-in-law as per Section 3 of Goonda Act,
as it specifies the period of detention should be initially for a period
of 3 months from the date of passing the initial detention order.
Moreover, learned counsel for the petitioner further contends that,
all the crime registered against the detenu are of private nature and
none of the crimes registered are in the nature of harming the
"Public Order'. When such being the scaenarium, passing the order
of detention as against the detenu without considering these
aspects vitiates the very object of the Goonda Act.
7. The learned counsel for the petitioner, referring to the
statement of objection filed by the respondents submit that
representation was given by the detenu to the Advisory Board on
24.03.2023 and the same was placed before the Advisory Board on
11.04.2023. Which rejected the representation and confirmed the
detention order passed by the respondents. Further, as mandated,
the representation was also placed before State Government on
15.04.2023 and State Government also rejected the representation
and it was communicated to the detenu on the same day. Learned
counsel would submit that there is a delay of nearly 21 days to
consider the representation filed by the detenu which is vital if the
delay is caused is not properly explained. He further submits,
though the delay is subjective in nature, in the present scenario,
the delay caused has not been explained by the respondents as to
what stopped the respondents to place the representation before
the Advisory Board and also before State Government as soon as
possible and also to communicate the same to the detenu in time.
He places his reliance on the decision of Madras High Court in Lilly
Pushpam vs. Additional Chief Secretary reported in 2022 Live
Law (Mad) 456 and submits that even a 14 days inordinate delay
in considering the representation would render impugned detention
order to be invalid. He would also refer to Para No.8 of the
judgment wherein a reference is made to decision of Co-ordinate
Bench of Madras High Court in Sumaiya vs. The Secretary to
Government reported in 2007 (2) MWN (Cr.) 145, wherein, the
Hon'ble Division Bench of Madras High Court had held 3 days delay
in disposing of representation made on behalf of the detenu would
be sufficient to set-aside the order of detention. On these grounds,
the learned counsel for the petitioner urges before this Court to
grant a writ in the nature of Habeas Corpus in favour of the detenu
herein.
8. Per contra, learned HCGP for the respondents has filed
his statement of objection, similarly, has placed the entire records
along with list of authorities in support of his case and submits that
the detention order was passed on account of detenu being the
habitual offender, who was involved in offences like Attempt to
Murder, theft, Gambling, Robbery, Assault on Public and Public
Servant and other rowdy activities and it is on this ground, the
impugned detention order is being passed and the same has
withstood the test of legality before Advisory Board and hence prays
for dismissal of the petition.
9. Having heard learned counsel Sri Ranganath Reddy R
for the petitioner and learned HCGP for the respondents. Having
perused the pleadings, records and also the compilation of
documents supplied to the detenu, the points that would arise for
our consideration are;
"Whether rejection of representation dated
24.03.2023 filed by the detenu dated
15.04.2023 is justified under law?
"Whether the order passed by respondent
No.2-District Magistrate date 17.03.2023 is
sustainable under law?
10. The impugned orders supra are passed keeping in view
Sections 3, 8, 11, 13 and 14 of Goonda Act. For the sake of
convenience same are produced herewith -
"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 1 [Immoral Traffic
Offender or Slum-Grabber or Video or Audio pirate] 1
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 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.
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.
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 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.
13. Maximum period of detention- The
maximum period for which any person may be
detained, in pursuance of any detention order made
under this Act which has been confirmed under
section 12 shall be twelve months from the date of
detention.
14. Revocation of detention orders- (1)
Without prejudice to the provisions of section 21 of
the Karnataka General Clauses Act, 1899, a detention
order may, at any time, be revoked or modified by
the State Government, notwithstanding that the
order has been made by an officer mentioned in sub-
section (2) of section 3. `
(2) The revocation or expiry of a detention order
(hereinafter in this sub-section referred to as the
earlier detention order) shall not, whether such
earlier detention order has been made before or after
the commencement of the Karnataka Prevention of
Dangerous Activities of Boot-leggers, Drug-offenders,
Goondas, Immoral traffic Offenders and Slum-
Grabbers (Amendment) Act, 1987, bar the making of
another detention order (hereinafter in this sub-
section referred to as the subsequent detention
order) under section 3 against the same person :
Provided that in a case where no fresh facts have
arisen after the revocation or expiry of the earlier
detention order made against such person, the
maximum period for which such person may be
detained in pursuance of the subsequent detention
order shall in no case, extend beyond the expiry of a
period of twelve months, from the date of detention
under the earlier detention order.
(emphasis supplied by me)
11. On careful perusal of these statutory provisions, it
depicts that any order made by the competent authority under
section 3(2) of the Goonda Act shall be forwarded to the State
Government along with grounds and particulars on which such
orders has been passed and also all the relevant materials that are
necessary for consideration by the State Government. The
provision also mandates that any order made under Section 3(2) of
the Goonda Act, will only remain in force for a period of 12 days
subject to approval of the State Government. Further, Section 8 of
the Goonda Act also provides that when an order of detention is
passed detaining an offender then the same should be
communicated to the detenu along with all the necessary document
that are relied upon by the respondent Authorities in passing the
impugned order so as to enable the detenu to file an effective
representation as against the detention order passed.
12. In the present case, the order of detention was passed
on 17.03.2023 by respondent No.2, which came to be confirmed by
respondent No.1 on 27.03.2023. The documents detailing the
grounds for detention was communicate to the detenu on
17.03.2023 itself. Now, to address the first limb of the argument
of the petitioner that there was an inordinate delay in considering
the representation filed by the detenu, we find it relevant refer to
the law laid down by the Co-ordinate Bench of this Court in Ashok
Kumar v. State of Karnataka reported in 1983 SCC OnLine Kar
37. Paragraph 6 of the order reads as under -
"6.One of the twin rights under Article 22(5) of
the Constitution of the person sought to be detained
is the right to be enabled to make, at the earliest
opportunity, a representation against the order of
detention. As concomitant of this right, the detenu
has, by necessary implication, the right to have his
representation considered and disposed of most
expeditiously. The detaining authority is under a
corresponding constitutional obligation to consider
and dispose of the representation at the earliest. Any
unreasonable or unexplained delay violates the
constitutional pledge and by itself, without more,
vitiates the order of the detention."
(Emphasis supplied by me)
Further, another Co-ordinate Bench of this Court led by then
Chief Justice in Kenneth Jideofor v. Union of India reported in
2020 SCC OnLine Kar 525 ,wherein, paragraph 19 of the Order
reads as under -
"19. Thus, the only conclusion which can be
drawn is that there is an inordinate delay in
considering the representations made by the
petitioner to the Specially Empowered Officer as
well as to the Central Government. In fact, there
are no efforts made to explain the reasons for
such inordinate delay. Hence, there is a complete
violation of rights of the petitioner under Article
22 of the Constitution of India and in particular
Clause (5) thereof. On account of the inordinate
delay in deciding the representations made by the
petitioner, the continuation of impugned order of
preventive detention is vitiated and therefore the
impugned order of detention will have to be set-
aside."
(Emphasis supplied by me)
Another Co-ordinate Bench of this Court in Rizwan Pasha v.
State, reported in 2021 SCC OnLine Kar 15707, wherein,
paragraph Nos.46 and 47 of the Order speaks as under -
"46. Although, the aforesaid observations
are in the context of considering a representation
of a detenu prior to the matter being considered
by the Advisory Board, nevertheless, the import
of the said observations would even apply to a
representation made by a detenu post
confirmation order mutatis mutandis. This would
mean that the State, in exercise of its power
coupled with duty, under Section 14 of the Act,
must consider the representation expeditiously
and independently of the report of the Advisory
Board in order to ascertain, whether, there is any
changed circumstances or a reason which has
emerged subsequent to the confirmatory order
which would coll for the detention order to be
revoked or modified.
47. Any delay in disposing of the
representation of the detenu would vitiate further
detention despite the order of detention being
confirmed as per Section 12 read with Section 13
of the Act. We say so because there is an
obligation on the part of the State to consider the
representation made post-confirmation of the
detention, in light of Section 14 of the Act. Thus,
any delay in doing so, must be adequately
explained as the obligation/duty cast on the State
Government under Section 14 of the Act is
couched in the context of Article 21 of the
Constitution. Therefore, such a representation
must also receive immediate attention and the
same must be considered as expeditiously as
possible or otherwise the delay would cause
prejudice to the detenu. Even though the Section
14 does not prescribe any time limit to consider
and dispose of the representation, it must be
done at the earliest possible time so as to avoid
any prejudice being caused to the detenu, which
would be an infraction of Article 21 of the
Constitution."
(emphasis supplied by me)
Another Co-ordinate Bench of this Court in Shivaraja @
Kulla Shivaraja & Anr vs Commissioner of Police & Ors in
W.P.(HC)No.39/2022 decided on 19.09.2022 by referring to the
decision reported in Leelavathi Vs Commissioner of Police,
Bengaluru (ILR 2019 Kar 4105) held in paragraph Nos.22 and
23 as under-
22. Our view is also fortified by the dictum of the Co-
ordinate Bench of this Court in the case of Leelavathi
stated supra, wherein it is held that any delay in
considering the representation of the detenue is fatal to
the detention order and the detention itself becomes
illegal. At paragraph Nos. 7, 8 and 12 it is held as under:
"7. The duty cast on the State to consider
the representation of the Detenu is not disputed. It
has to be exercised at the earliest point of time.
The delay in considering the representation of the
Detenu, would constitute a ground to nullify the
order of detention.
8. The well settled law is that, whenever a
representation is made, the same shall be
considered at the earliest point of time. What is
the 'earliest point of time' is necessarily subjective.
Assuming that there is a delay, the State is
entitled to explain the delay. But however, the
principle that the representation has to be
considered at the earliest point of time is not
disputed. If there is a delay in considering the
representation then the entire detention order
would have to be set aside on that ground alone.
12. So far as the facts involved in the
present case is concerned, the State has taken 57
days to consider the representation. The judgment
of this Court in KOKILA'S case involved a delay of
40 days. The judgment of the Hon'ble Supreme
Court in PABITRA N.RANA's case involved a delay
of about two weeks."
23. Thus, the perusal of the judgment would depict
that a duty is cast on the State to consider the
representation of the detenue and it has to be exercised at
the earliest point of time. The delay in considering the
representation of the detenue would constitute a ground
to nullify the order of detention. What is the 'earliest point
of time' is necessarily subjective and the settled principle
being that the representation has to be considered at the
earliest point of time and if there is a delay in considering
the representation, then the entire detention order would
have to be set aside on that ground alone."
(Emphasis supplied by Me)
From perusal of the above cited decisions, it is now settled
that, the representation made by the detenu as against the
detention order passed by the respondents shall be placed before
Advisory Board and also the State Government. Consideration of
such representation by the detenu, though subjective in nature,
should be considered as expeditiously as possible and should be
considered independent of the decision of the Advisory Board by the
State Government. Provided, it is open for the State Government
to consider the representation subsequent to the order passed by
the Advisory Board as clarified in the judgment passed by the
Hon'ble Apex Court in D M Nagaraja vs Government of
Karnataka & Ors reported in (2011) 10 SCC 215. Furthermore, it
is the duty vested upon the respondents to assign cogent reasons
so as to explain the inordinate delay caused. If the same is not
complied, then the detention order passed would be in the teeth of
Constitutional mandates as enshrined under Article 21 and also
Article 22 of the Constitution.
13. In the present case, the representation was given by
the detenu on 24.03.2023. On thorough perusal of the record
submitted by the learned HCGP, we find that on 24.03.2023 (to the
members) and 29.03.2023 (to the president) the representation
was forwarded to the Advisory Board. Further, on perusal of Note
No.28 of the records, we find that there is acknowledgment of
receipt of the representation before confirmation of the order on
27.03.2023. Further by a subsequent note, communication in this
regard was again forwarded to Advisory board. The details of entire
proceedings were communicated to the detenu by a communication
addressed on 06.04.2023, which detenu has acknowledged.
Further, we find at Note Nos.26 to 34 that the legality of
representation was in-detail considered by the authorities and the
file has moved the tables for necessary confirmation on day-to-day
basis. Subsequently, we find at Note Nos.41 to 44 further
development after receipt of the report of the Advisory Board and
also the communication made regarding the rejection of
representation addressed by the respondents along with supporting
acknowledgement. When this being the case, we are unable to
appreciate the contention of the petitioner that there was an
inordinate delay in considering the case, as we are in subjective
satisfaction that the respondents with all the due care has
proceeded to consider the representation of the detenu as
expeditiously as possible and accordingly, we hold the above point
raised in negative.
14. Further, in address to the second limb, the learned
counsel for the petitioner contends that there is no occasion to
detain the accused, as there is no 'proximate link' between the date
of detention and the date of commission of last crime, as the same
is made after an inordinate delay; we find it relevant to delve into
the factual aspects of the case i.e., the last crime alleged to be
committed by the detenu, was one registered by the Kolar Rural
Police Station in Crime No. 640/2022 for the offences punishable
under Sections 406 and 420 of IPC and the said crime was
registered on 28.12.2022 and the detenu was taken into custody on
28.12.2022 itself. Further, compilation that was supplied to the
accused which is now produced before us is perused with pleadings
of both the rival parties, we do not find any averments by both
parties as to the knowledge of him being on bail in the last alleged
crime. But, on perusal of the records submitted before us, more
specifically the representation filed by the detenu, we find that,
while the detenu was taken into custody by the police he along with
his family had visited the Police Station and it is in this scenario, the
detenu is taken into custody by the jurisdictional Police. When this
being the scenario, it is conclusive to express that the detenu was
at home while passing the impugned detention order. Further, if
the order of detention is perused carefully, we find that the order of
detention was passed by the respondent No.2-District magistrate at
the behest of detailed report addressed by the Superintendent of
Police, Kolar, on 08.01.2023 and even considered from the date of
proposal, the detention order was after the delay of 68 calendar
days and during these 68 calendar days, we find neither any
complaint nor any allegations of breaking the undertaking given in
the bail bond or influencing the witnesses involved in other crimes
by the detenu are brought to the notice of this Court. On query of
the same to the learned HCGP, he submits that he lacks instructions
from the concerned Department to answer the same. Be that as it
may, we also do not find any material records even before us or in
the compilation provided to the detenu in this regard and we fail to
appreciate the fact that, the said aspect has also been unnoticed by
both the respondents and also the Advisory Board while considering
the case on hand. In order to further substantiate the case on
hand, we deem it appropriate to refer to the Order of the Hon'ble
Apex Court in Ameena Begum v. State of Telangana reported in
(2023) 9 SCC 587 wherein, the Hon'ble Apex Court has laid down
the parameters to be considered while deciding legality of detention
order, which reads as under -
"28. In the circumstances of a given case, a
constitutional court when called upon to test the
legality of orders of preventive detention would be
entitled to examine whether:
28.1. The order is based on the requisite
satisfaction, albeit subjective, of the detaining
authority, for, the absence of such satisfaction as to
the existence of a matter of fact or law, upon which
validity of the exercise of the power is predicated,
would be the sine qua non for the exercise of the
power not being satisfied;
28.2. In reaching such requisite satisfaction,
the detaining authority has applied its mind to all
relevant circumstances and the same is not based
on material extraneous to the scope and purpose of
the statute;
28.3. Power has been exercised for achieving
the purpose for which it has been conferred, or
exercised for an improper purpose, not authorised
by the statute, and is therefore ultra vires;
28.4. The detaining authority has acted
independently or under the dictation of another
body;
28.5. The detaining authority, by reason of
self-created rules of policy or in any other manner
not authorised by the governing statute, has
disabled itself from applying its mind to the facts of
each individual case;
28.6. The satisfaction of the detaining
authority rests on materials which are of rationally
probative value, and the detaining authority has
given due regard to the matters as per the
statutory mandate;
28.7. The satisfaction has been arrived at
bearing in mind existence of a live and proximate
link between the past conduct of a person and the
imperative need to detain him or is based on
material which is stale;
28.8. The ground(s) for reaching the requisite
satisfaction is/are such which an individual, with
some degree of rationality and prudence, would
consider as connected with the fact and relevant to
the subject-matter of the inquiry in respect whereof
the satisfaction is to be reached;
28.9. The grounds on which the order of
preventive detention rests are not vague but are
precise, pertinent and relevant which, with
sufficient clarity, inform the detenu the satisfaction
for the detention, giving him the opportunity to
make a suitable representation; and
28.10. The timelines, as provided under the
law, have been strictly adhered to."
(Emphasis supplied by Me)
Hence, if the impugned order passed is seen keeping in view
the order passed by the Hon'ble Apex Court, we do not find any
specific reason forthcoming in the impugned detention order passed
by the respondent No.2, as to what transpired on the authorities to
pass the detention order even after there is nearly 79 calendar days
being passed since registration of case in Crime No.640/2022,
which is alleged to be the last crime committed by the detenu
herein and almost 68 calendar days have been completed from the
date of proposal to passing the impugned detention order.
Moreover, if referred to the order of Hon'ble Apex Court in Ameena
Begum case supra, wherein, the Hon'ble Apex Court emphasizing
on its earlier decision in Icchu Devi Choraria vs. Union of India
reported in (1980) 4 SCC 531 reiterated in paragraph No.17 that-
"17. In Icchu Devi Choraria v. Union of India [Icchu
Devi Choraria v. Union of India, (1980) 4 SCC 531 :
1981 SCC (Cri) 25] , the judicial commitment to strike
down illegal detention, even when the petition on
which rule was issued did not have the requisite
pleadings, was highlighted in the following words :
(SCC p. 538, para 5)
"5. ... Where large masses of people are
poor, illiterate and ignorant and access to
the courts is not easy on account of lack
of financial resources, it would be most
unreasonable to insist that the petitioner
should set out clearly and specifically the
grounds on which he challenges the order
of detention and make out a prima facie
case in support of those grounds before a
rule is issued or to hold that the detaining
authority should not be liable to do any
thing more than just meet the specific
grounds of challenge put forward by the
petitioner in the petition. The burden of
showing that the detention is in
accordance with the procedure
established by law has always been
placed by this 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. This constitutional right of life and
personal liberty is placed on such a high
pedestal by this Court that it has always
insisted that whenever there is any
deprivation of life or personal liberty, the
authority responsible for such deprivation
must satisfy the court that it has acted in
accordance with the law. This is an area
where the court has been most strict and
scrupulous in ensuring observance with
the requirements of the law, and even
where a requirement of the law is
breached in the slightest measure, the
court has not hesitated to strike down the
order of detention or to direct the release
of the detenu even though the detention
may have been valid till the breach
occurred. The court has always regarded
personal liberty as the most precious
possession of mankind and refused to
tolerate illegal detention, regardless of
the social cost involved in the release of a
possible renegade."
(emphasis supplied)"
(Emphasis supplied by Me)
The Hon'ble Apex Court further in paragraph No.25 of the
same order held that -
25. There could be little doubt with the thought
process that although the executive would pass an
order under the preventive detention laws as a
preventive or a precautionary measure, its effect
viewed strictly from the standpoint of the detenu is
simply and plainly punitive. Significantly, an order of
detention is not relatable to an alleged commission of
offence which a court is seized of and, thus, the
conduct of the accused complained of, is yet to be
found blameworthy; on the contrary, since it relates
to an anticipated offence based on past conduct, the
detenu could well feel that he is at the receiving end
of a subjective satisfaction of the executive despite
he not being proved to be on the wrong side of the
law on any previous occasion. If someone loses his
liberty and lands up in prison not having a semblance
of a chance to resist or protest, the very
circumstance of being put behind bars for such period
as specified in the order of detention based on an
anticipation that an offence is likely to be committed
by him seems to be an aspect which does not sync
with the norms and ethos of our very own
Constitution and the decisions of this Court in which
the concept of "life" has been explained in such a
manner that "life" has been infused in the letters of
Article 21 (see Common Cause v. Union of
India [Common Cause v. Union of India, (1999) 6
SCC 667 : 1999 SCC (Cri) 1196] ). Nonetheless, so
long clause (3) of Article 22 of the Constitution itself
authorises detention as a preventive measure, there
can be no two opinions that none can take exception
to such a measure being adopted and it is only a
limited judicial review by the constitutional courts
that can be urged by an aggrieved detenu wherefor
too, in examining challenges to orders of preventive
detention, the Courts would be loath to interfere with
or substitute their own reasoning for the subjective
satisfaction arrived at by the detaining authority.
Since the object of a preventive detention law is not
punitive but preventive and precautionary, ordinarily
it is best left to the discretion of the detaining
authority.
(Emphasis supplied by Me)
These being the settled position, considering the facts of the
case supra, we are of the view that, there is no proper justification
or rationale is forthcoming from the order of detention or the
subsequent orders, as to what inspired the Officers to detain the
detenu even after there were no report of mishap or goonda
practice as against the detenu. Hence, we hold the above raised
point No.2 in favor of the petitioner and accordingly, we pass the
following-
ORDER
a) Writ petition is Allowed.
b) Impugned detention order passed by
respondent No.2 bearing No.MAG(2)
CR/L&O(G)/02/2023-24 dated
17.03.2023 and consequent
SST 2023, Bengaluru dated 27.03.2023
and extension order passed by the
SST 2023 dated 18.04.2023 all stands
quashed. Consequently, the
respondents are directed to set the
detenu at liberty, forthwith.
c) However, Registry is directed to
communicate the Order to respondent
Nos.1 and 2 as well as the Jail
Authorities to release the detenu
forthwith, in case, he is not needed in
any other cases.
Accordingly, the Registry shall return the records submitted
by the State Government to the learned HCGP who is on record
after obtaining the necessary endorsement in that regard.
No order as to Costs.
Sd/-
JUDGE
Sd/-
JUDGE
HKV
