Karnataka High Court
Shri. M.D.Mujeeb vs Deputy Commissioner And Ors on 4 January, 2023
Bench: Sreenivas Harish Kumar, T G Gowda
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 04TH DAY OF JANUARY 2023
PRESENT
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR.JUSTICE T.G.SHIVASHANKARE GOWDA
WPHC No.200006/2022
Between:
M.D. Mujeeb S/o Naseer Ansari
Aged 28 Years
Resident of New Ansari Mohala
Aland, Dist. Kalaburagi
...Petitioner
(By Sri Chandrashekara K. and
Sri Mahantesh H. Desai, Advocates)
And:
1. Deputy Commissioner and District Magistrate
Office of the Deputy Commissioner
Kalaburagi-585 101
By Mr. Yesvanth V. Gurukar
2. State of Karnataka
By Secretary
Home and Transport Department
Vidhana Soudha
Bangalore-560 001
2
3. Senior Superintendent
Central Prison
Belgavi-591 108
...Respondents
This Writ Petition Habeas Corpus is filed under Article 226
of the Constitution of India, praying to declare the detention of
Mohammed Firdos Arif Ansari S/o Hanfizuddin Ansari, Order
No.REV/DCK/MAG/05/2022 dated 25.05.2022 (Annexure "A"
and "B") passed by respondent No.1 and all consequential action
including confirmation by the respondent No.2 in Order bearing
No.HD 319 SST 2022 dated 24.06.2022 (Annexure"F") as illegal
and void abinitio.
This petition coming on for Orders this day, SREENIVAS
HARISH KUMAR J., made the following:
ORDER
In this Writ of Habeas Corpus, the petitioner has
sought to declare the detention of his brother
Mohammed Mohmmed Firdos Arif Ansari (referred to
as detenue) under the provisions of Karnataka
Prevention of Dangerous Activities of Bootleggers,
Drug-Offenders, Gamblers, Goondas, Immoral Traffic
Offenders and Slum-Grabbers and Video or Audio
Pirates Act, 1985 (for short, 'the Act') as illegal and
void ab initio. The necessary facts are as under:
2. On 25.05.2022, vide Annexure-A the
Deputy Commissioner and District Magistrate of
Kalaburagi District i.e., the first respondent passed
detention order against the detenue. On the same
day, the grounds of detention were communicated to
the detenue in writing vide Annexure-C. The detention
order and the grounds of detention were in Kannada
language, therefore while communicating the
detention order and the grounds of detention, the
detenue was provided not only with the copies which
were in Kannada language but also their English
translations. Vide Annexure-E dated 31.05.2022, the
Government approved the detention order passed by
the first respondent. Then the matter was referred to
the Advisory Board which also by its report dated
21.06.2022, approved the detention and reported the
same to the Government. On 24.06.2022, the
Government confirmed the order of detention.
3. The grievances of the petitioner as can be
made out from the memorandum of writ petition are
that the Act does not provide for issuance of two
separate orders of detention, one in Kannada and the
other in English, that the grounds mentioned in both
the orders are at variance with each other and
therefore the detenue was confused as to in respect of
which order he was required to give representation,
that the improper communication of the order of
detention and the grounds thereof violated Article
22(5) of the Constitution of India, that the order of
detention is vitiated for the reason that the copies of
the documents referred to in the order were not
furnished to the detenue that even otherwise the
documents do not provide any material to justify the
detention.
4. It is further contended that out of 17
criminal cases mentioned in the grounds of detention,
08 cases are still under investigation and the cases at
Sl.Nos.10 to 17 were registered within a span of 15
days. This clearly indicates a concerted effort by the
police to falsely implicate the detenue in order to keep
him under detention. In regard to crime
No.136/2016, it is stated that it was a 6 year old
incident and not proximate in point of time. Even the
offence registered in Crime No.183/2017 was also an
old incident. Therefore, if references are made to old
incidents in the grounds of detention, it can be very
well said that the respondents are very much
determined to falsely implicate the detenue.
Moreover, the detenue was in judicial custody on the
day the detention order was passed. For this reason
also detention is vitiated.
5. We have heard the arguments of Sri
Chandrashekhar K., learned counsel for the petitioner
and Sri Dhyan Chinnappa, the Additional Advocate
General assisted by Sri Mallikarjun C. Basareddy,
learned Government Advocate for the respondents.
6. Though several grounds as mentioned
above have been taken by the petitioner, Sri
Chandrashekhar did not refer to them, but he raised a
ground which is not pleaded. His submission was that
after communication of the grounds of detention and
the detention order to the detenue, he gave a
representation to the second respondent i.e.
Government on 04.06.2022 and another
representation on 22.06.2022. The second
respondent did not forward these two representations
for consideration by the Advisory Board. In this view,
the order passed by the Government confirming the
detention of the detenue based on the reports
submitted by the Advisory Board gets vitiated and
thereby the detention is illegal offending Article 22 of
the Constitution of India. There is gross violation of
Article 22 (5) of the Constitution of India. Since the
detention is illegal, writ of habeas corpus is to be
issued for releasing the detenue from detention. In
support of his arguments, he produced the prints of
many decisions, but he referred to a few of them, and
we will refer to the decisions which he actually relied
on in the course of discussion.
7. It was the argument of Sri Dhyan
Chinnappa that the grounds that learned counsel
Sri Chandrashekhar argued have not been pleaded in
the writ petition; and even otherwise the detention of
the detenue cannot be declared illegal because every
procedure envisaged in the Act have been
scrupulously followed. In regard to the
representations given by the detenue, Sri Dhyan
Chinnappa argued that the first respondent i.e.,
Deputy Commissioner of Kalaburagi district passed the
detention order according to Section 3(2) of the Act.
The representation given by the detenue on
04.06.2022 was addressed to the Government. He
made another representation on 07.06.2022 to the
Government through the Supreintendent of Jail,
Belagavi and also to the Advisory Board, Bengaluru.
Without lapse of time the State Government rejected
the representation of the detenue on 16.06.2022.
The Advisory Board held proceedings on 08.06.2022
and 10.06.2022. The Advisory Board considered the
representation and also the submissions made by the
detenue, and then gave its report. Sofar as
representation dated 22.06.2022 is concerned, it was
given by detenue after the Advisory Board gave its
report. Even this representation dated 22.06.2022
(signed by the deenue on 23.06.2022) was addressed
to the Government and it was rejected on 22.11.2022
and in this view the representations of the detenue
were considered not only by the Government but also
by the Advisory Board. The detenue was given
sufficient opportunity to put forth his contentions
opposing his detention and hence there is no infirmity
in the procedure followed to keep the detenue under
detention. For these reasons, there is no merit in the
writ petition and hence it is to be dismissed.
8. Before giving our findings on the points of
arguments, if we briefly refer to the Act, sub-section 1
of Section 3 empowers the State Government to make
an order directing a bootlegger or a drug-offender or a
goonda, or a immoral traffic offender or a slum
grabber, or a video or audio pirate to be detained for
the purpose of maintenance of public order. Sub-
section 2 of Section 3 empowers the District
Magistrate or Commissioner of Police to pass a
detention order on being directed by the State
Government. But sub-section 3 to Section 3 of the
Act states that whenever the District Magistrate or a
Commissioner of Police passes an order of detention in
accordance with sub-section 2, it shall not remain in
force for more than 12 days from the date of order
unless in the meantime the order of detention is
approved by the State Government. That means
within 12 days of the order, the Government has to
approve the detention order passed by the District
Magistrate or a Commissioner of Police. According to
Section 8, the grounds of detention must be
communicated to the detenue within a period of 5
days from the date of detention and this requirement
is to afford an opportunity to the detenue to make a
representation to the Government against the order of
detention. Section 10 states that whenever a
detention order has been passed under the Act, within
three weeks from the date of detention of a person,
the matter must be placed before the Advisory Board
constituted under Section 9 of the Act. While referring
the matter to the Advisory Board, the State
Government shall place before it all the grounds in
support of detention and the representation if any
given by the detenue. Then the Advisory Board shall
consider the materials placed before it and may also
call for such further information as it may deem
necessary from the State Government or from any
person concerned. Within seven weeks from the date
of detention the Advisory Board has to give its report
based on which the State Government may pass an
order confirming the detention order and continue the
detention for a maximum of 12 months from the date
of detention.
9. If the procedure envisaged in the Act is
seen, it can be stated that the Government can itself
pass an order of detention under Section 3(1) of the
Act, and in that event it must be communicated to the
detenue so that he can make his representation
against the detention order. In case a District
Magistrate or a Commissioner of Police passes an
order under Section 3(2) of the Act, then also the
grounds of detention along with the detention order
must be communicated to the detenue to enable him
to give representation. But if an order is passed
under sub-section (2), the Government must approve
it within 12 days and at the time of passing necessary
orders, the Government has to consider the
representation made by the detenue against the order
passed by the District Magistrate or the Commissioner
of Police as the case may be. If the Government
itself passes an order of detention under Section 3(1)
of the Act, need to pass one more order of approval as
found in sub-section 3 of Section 3 considering the
representation of the detenue does not arise, and the
State Government can refer the matter to the
Advisory Board. If any representation is made by the
detenue against the order passed by the Government
under Section 3(1) it has to be placed before the
Advisory Board. Notwithstanding these provisions,
the State Government may revoke or modify the
detention order at any time without prejudice to
Section 21 of the General Clauses Act, as envisaged in
Section 14 of the Act.
10. In the case on hand, the order was passed
on 25.05.2022 by the District Magistrate exercising
the power under Section 3(2) of the Act and the said
order was approved by the Government on
31.05.2022, i.e., within 12 days. It is true that
detenue made a representation against the detention
order to the Government. In the list of dates of
events furnished by the Government Advocate, it is
stated that the detenue made three representations to
the Government through the Jail Superintendent. The
first representation was on 04.06.2022, the second
one on 06.06.2022 which was the English translation
of the first representation and the third one on
07.06.2022 being in English language. The State
Government passed an order on 16.06.2022 rejecting
the representations. It is stated that on 07.06.2022,
the detenue also made a representation to the
Advisory Board and it was submitted through
Superintendent of Jail, Belagavi. The Board met for
the first time on 08.06.2022 and then again on
10.06.2022. The main contention of the petitioner's
counsel is that all the representations made by the
detenue should have been placed before the Board,
and thus the Government having failed in this regard
violated the procedure which results in detention
becoming illegal. In the context as to how the
representation made by the detenue is to be dealt
with, the Supreme Court in the case of Jayanarayan
Sukul Vs. State of West Bengal (AIR 1970 SC
675), has laid down following guidelines.
"20. Broadly stated, four principles are to be
followed in regard to representation of detenus.
First, the appropriate authority is bound to give
an opportunity to the detenu to make a
representation and to consider the
representation of the detenu as early as
possible. Secondly, the consideration of the
representation of the detenu by the appropriate
authority is entirely independent of any action
by the Advisory Board including the
consideration of the representation of the
detenu by the Advisory Board. Thirdly, there
should not be any delay in the matter of
consideration. It is true that no hard and fast
rule can be laid down as to measure of time
taken by the appropriate authority for
consideration but it has to be remembered that
the Government has to be vigilant in the
governance of the citizens. A citizen's right
raises a correlative duty of the State. Fourthly,
the appropriate Government is to exercise its
opinion and judgment on the representation
before sending the case along with the detenu's
representation to the Advisory Board. If the
appropriate Government will release the detenu
the Government will not send the matter to the
Advisory Board. If however the Government will
not release the detenu the Government will send
the case along with the detenu's representation
to the Advisory Board. If thereafter the Advisory
Board will express an opinion in favour of
release of the detenu the Government will
release the detenu. If the Advisory Board will
express any opinion against the release of the
detenu the Government may still exercise the
power to release the detenu."
11. In Shivaraja @ Kulla Shivaraja and
another vs. Commissioner of Police and others
[W.P.(HC) 39/2022] the coordinate bench of this
court has extracted the guidelines setout in the case
of Jayamma vs. Commissioner of Police,
Bengaluru [ILR 2019 Kar. 1543]. Following are
the guidelines.
"21. Our view is fortified by the dictum of
the Co-ordinate Bench of this Court
in Jayamma's case stated supra has issued certain
guidelines while initiating Preventive Detention
order at paragraph No.49, which reads as under:
"49. Before parting with this judgment,
though we cannot exhaustively laid down
meticulous guidelines, we prefer to lay down
certain guidelines which may be helpful to the
Government and the detaining authority while
initiating the proceedings under the Preventive
Detention Laws. According to us, the following
are the few guidelines framed for passing the
preventive detention order under the Act, for the
benefit of the state holders:
(1) Detention order in writing, soon
after it is passed, should be communicated
to the detenu. The detaining authority
should also communicate the grounds of
detention comprising of basic facts, and
relied upon materials, in their entirety with
documents, statements, or other
materials, not later than 5 days from the
date of passing of the detention order.
(2) If two or more grounds are relied
upon by the authority, each of the grounds
shall be separately and distinctly
mentioned in the Detention order, as each
one of the ground if valid is sufficient to
validate the order even if other grounds
are vitiated or invalidated for any reason.
(3) Every Detention order shall be
supplied with the translated legible version
of all the scripts and documents relied
upon, in the language he understands to
make an effective representation.
(4) Detaining authority shall
specifically disclose with reference to each
of the grounds for detention, which are all
the documents relied upon and which are
the documents casually or passingly
referred to in the course of narration of
facts (including the bail orders) and shall
furnish the relied upon documents along
with the detention order. If the detaining
authority prefers to furnish the referred
documents also, those materials also to be
furnished in compliance with the first and
third guidelines noted supra.
(5) So far as bail applications and
orders, and violation of bail conditions are
concerned, if the detenu is on bail, if the
bail application and bail orders, conditions
therein are with reference to any vital
ground or vital materials, placing of those
materials though may not always be
mandatory but such requirement depends
upon the facts and circumstances of each
case, which the detaining authority and
later Courts have to very carefully
examine whether non placing of those
materials in any way prejudiced the
detenu. However failure to furnish any or
all the referred documents shall not
invalidate the order of Detention.
(6) If the order of detention is
challenged, the courts also shall have to
independently consider each ground, to
ascertain on each ground whether the
order is sustainable or not with reference
to the guidelines herein refereed.
(7) If any representation is submitted
by the detenu before the Detaining
Authority, addressing the same to the
Detaining Authority, government, or to
Advisory Board, irrespective of the fact
that, to whom it is addressed, the same
shall be as early as possible considered by
the appropriate Government, before
sending the papers to the Advisory Board.
If the appropriate Government revokes the
detention order and directs release of the
detenu, there arises no question of
sending the case papers to the Advisory
Board.
(8) The Government shall within
three weeks from the date of the detention
order, place the order before the Advisory
Board along with all the materials,
grounds, representation if any made
by the detenu, along with any report by
such officer made under sub-sec (3)
of section 3 of the Act.
(9) The Advisory Board shall maintain
records disclosing the date of receipt of
the detention order and other materials,
including the representation of the detenu.
The Advisory Board shall consider all the
materials placed before it, including the
representation if any of the detenu, if
necessary after calling for such further
information as it deems it necessary, and
if the person concerned desires to be
heard, after hearing him in person and
then send its report to the Government
within Seven Weeks from the date of
detention of the person concerned.
(10) After receipt of the report from
the Advisory Board, the Government
before passing any order of confirmation
under section 12 of the act shall consider
the representation of the detenu, if not
already considered by it for reasons that,
it was either directly submitted before the
advisory board or the sub delegated
Authority or received later after the
Advisory Board's report. Therefore, it is
mandatory that appropriate Government
shall consider the representation of the
detenu, at least once at any stage before
passing the final order of confirmation.
(11) The consideration of the
representation if received before
confirmation, order at any stretch
of imagination, cannot be done after the
confirmation of the detention order. It
amounts to no consideration in accordance
with law and procedure.
(12) If the Advisory Board has sent a
report, stating that there is sufficient
cause for the detention of the person
concerned the Government, may confirm
or revoke the said order. If the report says
that there is no sufficient cause for
detention, the Government, shall revoke
the detention order and cause the person
to be released forth with. It has no
discretion to detain such person any more
for any reason on the basis of such
detention order.
(13) If the order is revoked either
under section 12 or under section 14 as
the case may be, or the period of
detention under the order is fully
undergone by the detenu, in such an
event the detaining authority shall forth
with release such person from detention.
Further the detaining authority shall not
pass any extended or further detention
order on the same grounds. However, if
any subsequent order of detention has to
be passed, it shall be by a separate order
on fresh grounds after again following the
procedure, but not on the grounds on
which earlier order was passed."
12. In substance, the whole procedure is
founded on principles of natural justice, the detenue
needs to be heard and his representations must be
considered. In the case on hand, the detenue gave
representations; and the respondents too admit it.
The materials placed before the court indicate that the
detenue made the representation to the State
Government on 04.06.2022 in Kannada, and on
06.06.2022, he submitted a representation again in
English. It is contended by the respondents that the
representation dated 06.06.2022 is the English
translation of Kannada representation dated
04.06.2022; whatever it is, the State Government
considered the representation and passed an order on
16.06.2022 rejecting the representation. This
rejection order was the independent power exercised
by the State Government. Before this order was
passed, the matter had already been referred to the
Advisory Board which met for the first time on
08.06.2022 to deliberate on the subject. The main
contention of the detenue is that his representations
ought to have been placed before the Advisory Board.
Here requires a clarifications. The representations
dated 04.06.2022 and 06.06.2022 were addressed to
the State Government, and they were being
considered by the Government independently and
ultimately they were rejected on 16.06.2022. By that
time, the matter had already been referred to the
Advisory Board. When the representations were being
independently considered by the State Government, it
was not necessary that those representations should
have been placed before the Advisory Board.
13. The next aspect is that the representation
said to have been made by the detenue to the
Advisory Board through the Superintendent of Jail,
Belagavi was not placed before the Advisory Board
and therefore there is a lapse in the procedure and
thereby the detenue's representation could not be
considered by the Advisory Board. In the list of
events filed by the Government Advocate, it is stated
that detenue made a representation on 07.06.2022
through the Superintendent of Jail, Belagavi to be
placed before the Advisory Board. In this context, it
may be stated that since the representation was made
on 07.06.2022, it was quite impossible for forwarding
the same to Bengaluru for being placed before the
Advisory Board which met on the very next day i.e.
08.06.2022. The report of the Advisory Board clearly
states that the detenue appeared before the Advisory
Board through video conferencing and put forth his
contentions opposing his detention. At that time, he
could have brought to the notice of the Advisory Board
about the representation he had submitted through
the Superintendent of Jail, Belagavi, and in that event
the Advisory Board would have directed the police
officer who appeared before the Advisory Board to
procure and produce the representation before it.
Even on 10.06.2022 when the Advisory Board met
again, it appears that detenue did not bring to the
notice of the Advisory Board about the representation
he had already made. If for this reason the Advisory
Board proceeded to give report after hearing the
detenue, there is no infirmity in the procedure
followed by it. It is true that it is the duty of the
detaining authority or the concerned police officers to
place the detenue's representation before the Advisory
Board, but at the same time nothing prevented the
detenue from bringing it to the notice of the Advisory
Board that he had given representation and it should
be considered. Anyway it is not as though the
detenue was not heard by the Advisory Board, the
report of the Advisory Board shows that he was given
an opportunity to put forward his case. Thereby
there was no violation of procedure.
14. The learned counsel for the petitioner has
relied on the judgment of coordinate bench of this
court in the case of Thayamma vs. Commissioner
of Police, Bangalore City and others [WPHC
71/2022]. The writ petition was allowed by the
coordinate bench on the ground that representation of
the detenue had not been considered. The discussion
in para-7 of the said judgment shows that detenue
made a categorical statement before the Advisory
Board that he had made a representation to the
Advisory Board and in spite of that the report of the
Advisory Board was silent with regard to consideration
of such representation. The facts in the said case are
distinguishable, therein the detenue brought to the
notice of the Advisory Board that he had made a
representation, but in the case on hand the detenue
did not make such submission before the Advisory
Board and did not request the Board to procure the
representation. Therefore the decision of the
coordinate bench is not helpful to the detenue.
15. The next point is about representation
dated 22.06.2022. The argument was that even his
representation was not placed before the Advisory
Board. This argument is wholly misconceived because
firstly such a representation was made to the State
Government and secondly that on 21.06.2022 itself
the Advisory Board had given its report. Once the
Advisory Board gave its report, any representation
made subsequently could not have been placed before
the Advisory Board.
16. The learned counsel for the petitioner has
placed reliance on the judgment of the Supreme Court
in the case of Kundhanbhai Dulhabai Shaikh vs.
Distrist Magistrate, Ahmadabad and Ors.
[(1996) 3 SCC 194] in support of his argument that
the representation given by the detenue on
04.06.2022 and 06.06.2022 should have been
considered by the State Government expeditiously. In
para-18 of the said judgment it is held:
"18. Turning now to the main question relating to
the early disposal of the representation, we may
immediately observe that this Court, in a large
number of cases, has already laid down the
principle in clear and specific terms that the
representation has to be disposed of at the earliest
and i. there has been any delay in the disposal of
the representation, the reasons for the delay must
be indicated to the court or else the unexplained
delay or unsatisfactory explanation in the disposal
of the representation would fatally affect the order
of the detention, and in that situation, continued
detention would become bad. This has been the
consistent view of this Court all along from its
decision in S., Abdul Karim & Ors. v. State of West
Bengal, [1969] 1 SCC 433; Durga show In re
[1970] 3 SCC 696: Jayanarayan Sukul v. State of
West Bengal, [1970] 1 SCC 219; Shait Hanif v.
State of West Bengal, [1974] 1 SCC 637; Raisuddin
@ Babu Tamchi v. State of U.P. & Anr. [1983] 4
SCC 537; Frances Coralie Mullin v. W.C. Khambra
& Ors., [1980] 2 SCC 275; Mohinuddin Alias Main
Master v. District Magistrate, Bead & Ors., [1987] 4
SCC 58; Rama Dhondu Board v. V.K. Saraf.
Commissioner of Police & Ors., [1989] 3. SCC 173;
Aslam Ahmed Zahire Ahmed Saik v. Union of India
& Ors., [1989] 3 SCC 277; Mahesh Kumar Chauhan
alias Banti v. Union of India & Ors., [1990] 3 SCC
148, right upto its reiteration in Gazi Khan alias
Chotia v. Slate of Rajasthan and Anr., [1990]3SCC
459."
17. There cannot be second word that the
representation given by the detenue should be
considered without lapse of time. In the case on
hand, the State Government rejected the
representation on 16.06.2022, that means there was
early disposal of the representation without lapse of
time.
18. Thus looked, we do not find any infirmity in
the procedure followed by the respondents in keeping
the detenue under detention under the Act. We do
not find good ground to allow this writ petition.
Hence, writ petition is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
BL
