Karnataka High Court
Sri. Mohammad Shafiulla vs The D. G. And I.G.P. Of Police on 7 December, 2023
Author: K.Somashekar
Bench: K.Somashekar
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
WPHC NO.75 OF 2023
BETWEEN
SRI. MOHAMMAD SHAFIULLA
S/O LATE ABDUL JABBAR SAB,
AGED ABOUT 66 YEARS,
R/AT NEAR RAILWAY TRACK,
SHAHINSHA NAGAR,
KOLAR-563 101.
...PETITIONER
(BY SRI. NANJUNDA GOWDA M.R)
AND
1 . THE D. G. AND I.G.P. OF POLICE
BENGALURU-560 001.
2 . THE STATE OF KARNATAKA
BY SECRETARY,
HOME DEPARTMENT (LAW & ORDER)
VIDHANA SOUDHA,
BENGALURU-560 001.
3 . THE SENIOR SUPERINTENDENT
BENGALURU CENTRAL PRISON,
BENGALURU-560 100.
4 . DEPUTY COMMISSIONER
KOLAR,
KOLAR DISTRICT-563 101.
...RESPONDENTS
(BY SRI. ANOOP KUMAR, HCGP)
2
THIS WPHC IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO A) ISSUE A WRIT IN THE
NATURE OF HABEAS CORPUS COMMANDING THE RESPONDENTS
FOR THE PRODUCTION OF THE BODY OF THE SON OF THE
PETITIONER MR. ROSHAN JAMEER S/O MOHAMMAD SHAFIULLA IN
THE COURT AND SET HIM AT LIBERTY AND ETC.
THIS WPHC HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 04.12.2023, COMING ON FOR PRONOUNCEMENT THIS
DAY, RAJESH RAI.K, J., MADE THE FOLLOWING:
ORDER
Petitioner being the father of the detenu namely, Sri. Roshan
Jameer @ Jameer @ Jammu, has approached this Court praying for
a Writ in the nature of Habeas Corpus, directing the respondents to
produce the detenu before this Court and set him at liberty and
also to quash the impugned detention order bearing No.MAG(2)
CR/L&O (G)/02/2023-24 dated 27.04.2023.
2. Brief factual matrix of the case are as follows:-
One Sri. Roshan Jameer @ Jameer @ Jammu (hereinafter
called as 'detenu') who is alleged to be an offender and also a
threat to the society as he was involved in several crimes since,
2013, the respondent No.4 passed an order of detention in
consonance with the provisions 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 as 'Goonda Act') vide
order bearing No.MAG(2)CR/L&O (G)/02/2023-24 dated
27.04.2023. The same was communicated to the detenu along with
the compilation of document explaining his detention on
27.04.2023. He was also detained in Central Prison, Parappana
Agrahara, Bengaluru.
3. Subsequently, the detention order passed by the
respondent No.4 also was confirmed by respondent No.2 vide order
dated 06.05.2023. It is in this background, the file pertaining to
the detenu was forwarded to the Advisory Board for consent on
08.05.2023. Posteriorly, Advisory Board was constituted on
01.06.2023 and the Advisory Board heard both detenu and also the
respondent-Authorities who were present before the Advisory
Board and vide order dated 02.06.2023 was pleased to uphold the
order passed by the respondent No.4 and confirmation order
passed by respondent No.2 supra.
4. Pursuant to confirmation order being passed by the
Advisory Board, respondent No.2 vide order dated 06.06.2023,
extended the detention period for one year starting from
27.04.2023 invoking section 13 of Goonda Act. Aggrieved by the
orders supra, petitioner who is the father of the detenu herein is
knocking the doors of this Court seeking for Writ of Habeas Corpus.
5. Leaned counsel for the petitioner submits that, the
respondents are mandated to furnish the legible copies of the
documents to the detenu, explaining the causes for his detention
along with the documents that are relied upon to come to such
conclusion, thereby enabling him to submit the representation as
provided by Section 8 of the Goonda Act. Learned counsel for the
petitioner would submit that, the respondent-Authorities failed to
comply with the provisions of Section 8 of the Act supra, which
took away the earliest possible opportunity for the detenu to file a
representation against the order of detention.
6. The learned counsel would further submit that, though
the orders annexed with documents were supplied to the accused,
they were not in consonance with the Act and also the law laid
down by this Court and Hon'ble Apex Court, as the detenu was
given the compilation of document which included the copies that
were not legible. In support of his contention he persuades this
Court to page 29, 35, 52, 150, 154, 155, 156, 157, 244, 246, 248
and 250 of the compilation of documents supplied to the detenu in
pursuance to his arrest.
7. Further, learned counsel for the petitioner would also
further contend that, the documents supplied to the detenu was in
English and Kannada versions and the detenu being the student of
Urdu medium school who has studied till 2nd Standard, is stranger
to read both Kannada and English languages. Such being the
scenario, supplying the documents for him in Kannada and English
languages is not only in violation of Article 22(5) of the Constitution
but also in violation of Section 8 of the Goonda Act, thereby
ceasing his right to file a representation against the order of
Detention.
8. In addition to the above submission, learned counsel
for the petitioner also files a tabulation of documents dated
04.12.2023, containing the details of the documents that does not
find place in the list of documents furnished by the respondent
No.4 on 27.04.2023 and it is the apprehension of the learned
counsel for the petitioner that these documents are vital
documents that was required to be looked into before passing the
impugned order and also non-furnishing of these documents to the
detenu has violated his right to give an effective representation
under Section 8 of the Goonda Act.
9. Learned counsel for the petitioner in order to
substantiate his contention has relied upon the following
decisions:-
Sl.No List of Authorities Citations
1.
Powanammal v. State of T.N AIR 1999 SC 618
2.
Jayamma V Commissioner Of Police & WPHC No. 102/2018
Others
3.
Manjit Singh Grewal @ Gogi 1990 (Supp) SCC 59
4.
Smt.R Latha vs. T. Madiyal, 2000(5) Kar.L.J 304
Commissioner of Police, Bangalore City
and Others
5.
Shankara Gouda vs. State of Karnataka WPHC
6.
Earanna @ Bonda Earanna vs. State of WPHC
Karnataka and Others No.200005/2016
7.
Smt. Shylamma vs. State of Karnataka, ILR 2016 KAR 2725
Department of Home and Others
8.
Ramlath vs. State of Karnataka WPHC No.155/2016
9.
Sri Narayanappa vs. State of Karnataka WPHC No.33/2014
10. Learned HCGP denying the contentions levelled by the
petitioner, in contra submits that the impugned detention order is
passed in the interest of general public as the offender was a thief
and also a habitual offender who was involved in several crimes
since 2013 and total number of 15 crimes have been reported
against the said person and a rowdy sheet was also opened in his
name on 12.05.2017 and even after opening rowdy sheet he is
been charged and arrayed as accused in another 5 crimes. Hence,
it is in this background, in order to curtain him and also preserve
peace and harmony in the society the current action has been
taken against the detenu herein and the same is in accordance with
law.
11. Learned HCGP would further contend that, the
respondents have obtained the certificate from the university in
which he has completed his initial schooling and the said certificate
finds place at page 24 of the compilation of documents supplied to
the detenu and the said certificate clearly emphasizes that though
he has studied in Urdu School, he is well-versed with Arabic, Urdu,
English and Kannada Languages. And he would also refer to
material object at page 39 of the compendium to contend that he
has studied till 7th standard and hence, HCGP would contend that
the version of the petitioner that his son has only studied till 2 nd
standard and he has no knowledge of Kannada or English cannot
be relied with. Learned HCGP would also further submit that the
documents that are claimed to be illegible are not much of any
relevance and their absence would not have harmed the detenu to
submit any representation to competent authority in time. Learned
HCGP also submits that, the tabulation now supplied to the Court
detailing all the documents that does not find any place in the
compilation are all the documents pertaining to the bail orders
passed in all the cases that are registered against the detenu.
Orders of bail cannot be considered conclusive and the same
cannot be relied upon as the jurisprudence of granting bail stands
on a different footing than the preventive detention. Though he
was detailed about his rights during the execution of detention
passed against him, he has failed to give any representation to the
authority and even when he was produced before the advisory
board he has not specifically pleaded what is now being pleaded
before this Court and thereby he has accepted the detention order
passed against him. Learned HCGP in support of his contentions
places the record before this Court, pertaining to the detenu,
maintained by the respondent- authorities.
12. We have bestowed our anxious consideration to the
submission made by both the counsels and having heard the
learned counsel appearing for the petitioner Sri. Nanjunda Gowda
M.R and learned HCGP Sri. Anoop kumar, perusing the pleadings
and also the records made available to this Court by leaned HCGP,
the point that would arise for our consideration is;
"Whether the order of detention dated 27.04.2023
passed by the 4th respondent, detaining the son of the
petitioner Sri. Roshan Jameer @Jameer @Jammu is
sustainable under law?"
13. The impugned orders supra are passed keeping in view
Sections 3, 8, 10, 11 and 13 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.
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 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.
(emphasis supplied by me)
14. 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.
15. In the present case on hand, respondent No.4 being
the authority empowered by the state to exercise powers conferred
under Section 3(1) of the Goonda Act, has exercised powers under
Section 3(2) of the Goonda Act and has passed the order of
detention without specifying the period and directed the respondent
No.3-Police to detain the detenu in the Central Prison, Parappana
Agrahara, Bengaluru and has forwarded all the materials that are
relied upon in order to pass the Detention order and the same
came to be affirmed by the State Government vide order dated
06.05.2023. Further said detention order and confirmation order
was forwarded to the Advisory Board on 08.05.2023 and was
placed before the Advisory Board on 01.06.2023 and Advisory
Board vide order dated 02.06.2023 has confirmed the detention
order passed by the respondent No.4.
16. Further on careful perusal of Section 8 of the Act supra,
we find that, the duty is bestowed upon the respondents to furnish
the orders of detention made against the detenu along with the
entire materials which are relied upon by the respondents, to pass
such orders within five days so as to enable the detenu to submit
effective representation to the competent authority against the
order of detention passed by the State Government.
It is the contention of the petitioner that the detenu was
provided with the documents more specifically page Nos.29, 35,
52, 150, 154, 155, 156, 157, 244, 246, 248 and 250 of which were
not legible enough so as to enable the detenu to give effective
representation asserting his rights. The position of law in this
regard is clear as per the law laid down by the Co-ordinate Bench
of this Court in Smt. Parvathamma vs Commissioner of Police
and others in W.P.(H.C) No.33/2022 , wherein, the Co-ordinate
Bench held that non-supply of the legible documents/copies to the
detenu, withholds his rights to make proper and effective
representations before the Advisory Board and the same is also in
blatant violation of Article 22(5) of the Constitution of India.
Further this position was also reiterated in the judgement passed
by the co-ordinate bench of this Court in Writ Petition (HC)
No.51/2022 between Smt.R Ramya Vs. Commissioner of
Police and others.
17. Recently, another 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, in
paragraph No.6 of the order has held 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."
18. The above being the settled position, if, looked into the
compilation of documents furnished to the detenu by the
respondent No.4 as mandated under Section 8 of the Goonda Act,
we find merit in the submission made by the learned counsel for
the petitioner as certain pages in the compilation are not legible
and we are afraid to say that these documents would have been
proven vital in giving representation as these illegible copies
pertain to the records of crime committed by the detenu
maintained by the Police Authorities and also the evidences
examined by the Police Authorities in pursuance of investigation
into crimes. Hence, we hold the above contention in favour of the
petitioner.
19. Further, learned counsel for the petitioner also
contends that the detenu though lives in Kolar and is well-worsed
in speaking Kannada but he cannot read and write either Kannada
or English as he has studied till 2nd standard in Urdu Medium
School and thereby he disputes the certificate provided by the
School authorities which finds place in the compilation furnished by
the respondents. We have carefully perused the said certificate and
on perusal, we find that the detenu has only studied in the institute
from 01.05.1997 to 31.03.2000. He being born on 01.01.1992, is
only at the age of 8 while he has quit schooling. Such being the
scenario, we are unable to appreciate the contention put forth by
the respondents. As the student of an Arabic school and who has
studied the first language as Arabic or Urdu, cannot possibly be
considered as well-educated in the languages other than 1st
language as he has studied only for three years in the said school.
Hence, we are constrained to state that, the authorities have failed
to comply with the mandates of Article 22(5) of the Constitution of
India in its letter and spirit. Nevertheless, the law also
contemplates that the detaining authority is under a bounden duty
to provide the details of detention along with translated copy (i.e.,
documents translated in the language known to the detenu), to the
detenu within 21 days of detention order being passed as
compliance to Section 3(3) of the Goonda Act to enable the detenu
to submit representation as against the detention order supra.
Failure by the detention authority to furnish the translated copies
of such documents has not only resulted in violation contemplated
under the Constitution but also under the Goonda Act, which
mandates for the same (See - Hajji T.P.Abdul Azeez Vs. The
State of Karnataka and others in WPHC No.41/2017,
Ibrahim Ahmad Batti Vs. State of Gujarat and others reported
in AIR 1982 SC 1500, Smt. P. Vijayalakshmi Vs.
Commissioner of Police, Bengaluru City WPHC No.97/2015,
Smt. Doulat Unnisa Vs. Commissioner of Police, Bengaluru
City and others in WPHC No.129/2006 and Narayan
Laxmansa Shiralkar Vs. Government of Karnataka in WPHC
No. 58/2005).
20. Further, the Co-ordinate Bench in Iranna Vs.
Government of Karnataka and Others, reported in 2006(4)
Kar.L.J.200 (DB), by relying on the judgment passed by 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, in
paragraph No.6 has held as under;
"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 detention
and therefore, the said order of detention is liable to
be quashed."
21. In the instant case, as noted supra though the
respondents has complied the timeline in issuing the confirmation
order to the detention order passed by the respondent No.4. But,
we find lackings in compliance of Section 10 of the Goonda Act, as
the same was not placed before the Advisory Board within three
weeks of passing the detention order dated 27.04.2023. As can be
seen from the records submitted by learned HCGP, as against the
detention order dated 27.04.2023, the file was placed before the
Advisory Board on 01.06.2023 at 5.00 pm. which is evidently after
the lapse of 35 calendar days. Though Section 11 of the act
provides that the advisory board shall forward its decision
within 7 weeks, but Section 10 mandates that the materials
to be placed before it within 21 days. If both the section are
read together carefully, it is evident that such timeline is
provided in order to accord sufficient time for the Advisory
Board to go through the entire materials furnished to the
detenu and also relied upon by the respondents while
passing the impugned detention order in order to examine
the material aspects keeping in mind Article 22(5) of the
Constitution of India. On examination of case on hand, if
viewed with the anomalies in the materials provided, it is
glaring on the face of records that the Advisory Board did
not have sufficient time to examine the records and hence,
thereby the order of detention cannot be considered as one
that is passed by the mandates of Goonda Act.
22. In the third limb of the argument, the learned counsel
for the petitioner submits by way of memo that, the order of the
detention lacked consideration of the judicial orders passed in the
cases wherein detenu is arrived as an accused. In this regard, we
refer to the judgement of the Co-ordinate Bench in Shankara
Gouda v. State of Karnataka, reported in 2015 SCC OnLine
Kar 8200. Paragraph 15 of the order reads as under;
"15.Therein, reliance was also placed on three
Judge Bench judgment of the Hon'ble Supreme
Court in the case of Rekha v. State of Tamil Nadu
Through Secretary to Government [(2011) 5 SCC
244.] , as well as on the judgment of the Hon'ble
Supreme Court in the case of Vijay Narain
Singh v. State of Bihar [(1984) 3 SCC 14.] . The
Hon'ble Supreme Court therein have held that
subjective satisfaction can be arrived at only if the
detaining authority considers all the material that
is placed before it. If the order of bail or of
acquittal are not produced before the detaining
authority, the detention order would be invaild. In
so reasoning, the Hon'ble Supreme Court also held
that it is not possible to attempt or to assess in
what manner or to what extent, the consideration
of order granting bail would have effected the
satisfaction of the detaining authority. It is
sufficient to hold that non-placing the relevant
material before the detaining authority would
render the detention order as invalid."
On consideration of the above settled legal position we are
not inclined to appreciate the submission made by learned HCGP in
this regard and accordingly we hold this in favour of petitioner
herein.
23. Furthermore, this Court while dealing with the case of
Habeas Corpus seeking relief against preventive detention is
estopped from dwelling into its legalities or otherwise of the
offences committed by the detenu. But, is inclined, to only look
into the aspects of Constitutional safeguards of the detenu as
provide under Article 21 and 22(5) of the Constitution of India, as
held by catena of judgements by the Hon'ble Apex Court and so
also by this Court. Hence, viewed from the facet of the Goonda Act,
so also the Constitutional mandates, the impugned orders deserves
to be quashed. Accordingly, we hold the point raised above in
favour of the petitioner and pass the following:-
ORDER
a) Writ Petition is Allowed.
b) Impugned detention order passed by
respondent No.4 bearing No.MAG(2)
CR/L&O(G)/02/2023-24 dated 27.04.2023
and consequent confirmation order
bearing No.HhDi 236 EsEsTi 2023,
Bengaluru dated 06.05.2023 and
extension order passed by the respondent-
State bearing No.HhDi 236 EsEsTi 2023
dated 06.06.2023 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 the respondent
Nos.1 and 4 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.
This court places on record its deep appreciation for the able
research and assistance rendered by Official Law Clerk/Research
Assistant, MR.Shreedhar Ganapati Bidre.
Sd/-
JUDGE
Sd/-
JUDGE
HKV
