Karnataka High Court
Rosaline Y vs Deputy Commissioner And on 13 October, 2023
Bench: K.Somashekar, Umesh M Adiga
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WPHC No. 89 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF OCTOBER, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
WRIT PETITION (HABEAS CORPUS) NO.89 OF 2023
BETWEEN:
ROSALINE Y
AGED ABOUT 31 YEARS,
WIFE OF EDWIN @ AGIL
S/O LAVVI UTTARNATHAN
RESIDING AT MUSKAM, E BLOCK,
SUSAIPALYAM, K G F, ANDERSONPET,
KOLAR, BANGARPET, KARNATAKA 563113
...PETITIONER
(BY SRI. ROHAN VEERANNA TIGADI, ADVOCATE)
Digitally AND:
signed by D
HEMA
Location: 1. DEPUTY COMMISSIONER AND
HIGH COURT DISTRICT MAGISTRATE
OF
KARNATAKA KOLAR DISTRICT, KOLAR
KOLAR DISTRICT, KOLAR,
NEW DC OFFICE, KOLAR
45PJ + 6C9, KOLAR,
KARNATAKA 563 103, KOLAR.
2. STATE OF KARNATAKA
VIDHANA SOUDHA,
AMBEDKAR VEEDHI,
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WPHC No. 89 of 2023
SAMPANGI NAGARA, BENGALURU,
KARNATAKA 560001
(REPRESENTED BY SECRETARY, HOME DEPARTMENT,
LAW AND ORDER)
3. SENIOR SUPERINTENDENT
CENTRAL PRISON, BANGALORE
BENGALURU 560 001.
...RESPONDENTS
(BY SRI. ANOOP KUMAR, HCGP)
THIS WPHC FILED UNDER ARTICLE 226 AND 227 OF THE
CONSTITUTION OF INDIA, PRAYER TO ISSUE A WRIT OF
HABEAS CORPUS DECLARING THE DETENTION OF SRI. EDWIN
@ AGIL S/O LAVVI @ UTTARNATHAN, AGE 32 YEARS IS
ILLEGAL AND SET HIM AT LIBERTY FORTHWITH AFTER
QUASHING ORDER BEARING REFERENCE NUMBER
MAG(2)(CR/L & O(G)/01/2023-24 DATED 24.4.2023
(ANNEXURE-A) PASSED BY THE 1ST RESPONDENT UNDER
SECTION 3(2) OF THE GOONDA ACT, THE ORDER BEARING
REFERENCE NUMBER HD 221 SST 2023 DATED 29.4.2023
(ANNEXURE-B) PASSED BY THE 2ND RESPONDENT UNDER
SECTION 3(3) OF THE GOONDA ACT AND ORDER BEARING
REFERENCE NUMBER HD 221 SST 2023 DATED 09.06.2023
(ANNEXURE-C) PASSED BY THE 2ND RESPONDENT UNDER
SECTION 13 OF THE GOODA ACT.
THIS WPHC HAVING BEEN HEARD AND RESERVED ON
03RD OCTOBER 2023, COMING ON FOR PRONOUNCEMENT OF
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WPHC No. 89 of 2023
ORDERS, THIS DAY, UMESH M ADIGA J, PASSED THE
FOLLOWING:
ORDER
Wife of the detenue by name Edwin @ Agil, son of
Levvi @ Uttaranathan, aged about 22 years, has filed this
writ petition under Article 226 of the Constitution,
challenging the detention order passed by Respondent
No.1, Deputy Commissioner/District Magistrate, Kolar
District, Kolar, bearing No.MAG(2)CR/L & O (G)/01/2023-
24 vide Annexure - A; Order bearing reference number
HD-221-SST-2023, dated 29-04-2023, at Annexure B,
passed by the State, approving the orders at Annexure A,
and the order passed by the second Respondent State,
bearing number HD-221-SST-2023, dated 9-06-2023, vide
annexure C, passed by the Respondent No. 2, under
Section 13 of Karnataka, Prevention of Dangerous
Activities of Boot Leggers, Drug Offenders, Gamblers,
Goondas, Immoral Traffic Offenders, Slum Grabbers, and
Video or Audio pirates Act 1985, (hereinafter referred for
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WPHC No. 89 of 2023
short as 'Act'), and direct to release the detenue forthwith,
on various grounds urged in the Writ Petition.
2. The Superintendent of Police, Kolar District, has
submitted a report dated 09.02.2023 to District
Magistrate, Kolar, requesting to take action under
Goondas Act against detenue, vide Annexure E, and the
Superintendent of Police has mentioned in detail about
the cases pending against detenue, as well as the heinous
acts committed by detenue, as well as the acts which are
creating trouble to the tranquillity of society and public
order. The District Magistrate has considered the report
along with the materials placed before him by the
Superintendent of Police and passed the detention order
along with the grounds of detention, bearing number MAG
(2)CR/L&O(G)/01/2023-24, dated 24-04-2023.
3. The learned District Magistrate mentioned all the 20
cases registered against detenue in RobertsonPet Police
Station, AndersonPet Police Station of Kolar District,
registered under the various provisions of Indian Penal
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Code and NDPS Act. On the basis of materials placed
before him, the District Magistrate satisfied that the
detenue was involved in several offences under the
various Acts and is creating an atmosphere of fear and
insecurity in the minds of the general public, which
adversely affecting public order. That the law-abiding
public are living in great insecurity and there is every
possibility that they may not approach the justice delivery
system against the detenue's illegal activities. He is a
rowdy sheater of Robertsonpet Police Station; to maintain
effective surveillance on the detenue's activities, it was
warned detenue for good behaviour from time to time. In
spite of such warnings, detenue continued his illegal
activities and did not reform himself. The activities of the
detenue had disturbed normal public life in all the
localities, wherein he had committed the offences. With
the said subjective satisfaction, the District Magistrate
passed impugned order of detention dated 24-04-2023,
vide annexure A, along with, the grounds of detention and
same were served on detenue, on the same day.
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4. The District Magistrate submitted the detention
order along with enclosure to the Government. The
Government, reconsidering all the materials placed by the
District Magistrate, has passed the impugned order
number HD-221-SST-2023, Bengaluru, dated 29-04-2023,
approving the detention order passed by Deputy
Commissioner, vide Annexure B.
5. The State Government placed all these materials
before the Advisory Board and after receipt of report from
the Advisory Board, the State of Karnataka, by proceeding
number HD-221-SST-2023, dated 09-06-2023, passed the
order for detention of detenue for a period of one year
from 24-04-2023, vide Annexure 'C' under Section 13 of
the Act.
6. The detenue submitted representation dated 08-
08-2023 to the State of Karnataka, vide Annexure G. In
the synopsis notes, the petitioner has mentioned that the
second respondent - State has received the representation
of detenue on 10-08-2023 and the second respondent-
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State has considered the said representation and passed
the order dated 24-08-2023, rejecting the representation
of detenue.
7. The wife of detenue challenged the order of
detention on various grounds, in this writ petition.
8. The state did not file any response to the writ
petition.
9. We have heard the arguments.
10. The submissions of learned advocate for petitioner
are as under :-
• The district magistrate failed to comply with
section 8 of the Act. In the impugned order, vide
annexure A, the District Magistrate did not inform
the detenue that during the interregnum period of
passing of detention order and its approval by the
Government, the detenue could file
representation to detaining authority that is
District Magistrate himself.
• there is inordinate delay in considering
representation and that vitiate detention order.
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• there is inordinate delay between the passing of
detention orders and the date of proposal for
detention of the detenue by the Superintendent of
Police.
• Detaining Authority failed to provide translated
copies of detention orders and supporting
documents to the detainee. Similarly, legible
copies of documents were not supplied to detenue
to file his representation at the earliest, which is
violation of Article 22 (5) of constitution.
• the detaining authority failed to provide bail
orders passed in favor of detenue by the courts to
the detenue.
11. The learned advocate for petitioner relied on few
reliances in support of his submission.
12. The HCGP has submitted that the said grounds
urged by petitioners are not tenable. Detention order were
given to detenue, both in Kannada as well as in English,
the order of the State Government - respondent No.2 is in
Kannada and it was also served on the detenue. Detenue
never asked for translated copies of the said documents.
Moreover, detenue is resident of Karnataka that is, KGF,
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he knows Kannada, English and Tamil. Therefore, question
of supplying of the translated documents do not arise at
all. Moreover, the documents enclosed with the detention
orders are copies of charge sheet, enclosures, etc. And
hence, he is well-versed with the said document since it
was supplied to him in the concerned cases registered
against detenue. He has further submitted that the
detenue himself had applied for bail in the concerned
criminal cases registered against him and obtained bail.
Bail orders were not much relied by the detaining
Authority. Therefore, question of supplying the said orders
by the detaining authority do not arise. With these
reasons, the learned HCGP prayed to dismiss the Writ
Petition.
13. The first and foremost ground of attack of the
impugned order of the District Magistrate is that he did not
follow the provisions of Section 8 of the Act. It is a
mandatory provision and the District Magistrate shall, if he
passes an order under Section 3(2) of the Act, then he
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shall inform the detenue that he could make
representation to the District Magistrate, during the
interregnum period from the date of passing of detention
order till it is approval by the State Government. It is not
complied by District Magistrate, which is violation of Article
22 (5) of Indian Constitution.
14. In the case of State of Maharashtra and others,
v Santosh Shankar Acharya1. It is said by Hon'ble Apex
Court as under:
"The District Magistrate or Commissioner of Police on
being authorised by the State Government could
issue an order of detention under Sub-section (2) of
Section.3. When an officer exercises power and
issues orders of detention under sub-section (2) then
he is duty-bound to report forthwith the facts of
detention and the grounds on which the order of
detention is made and/or other particulars to the
State Government. On receipt of the report, the
grounds and the particulars from the officer
concerned the State Government is required to
approve the order of detention within 12 days, and if
it is not approved within 12 days then it
automatically lapses. Section 8(1) casts mandatory
obligation both on the authority which passes an
order of detention either under sub-section (1) or
under sub-section (2) i.e., if the State Government
issues an order of detention under sub-section (1),
or if the officer empowered issues an order of
2007 SCC 463
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detention under sub-section (2) that the same must
be communicated to the detenu not later than 5 days
from the date of detention. Although in the latter
part of sub-section (1) of Section 8 it has been
categorically mentioned that an earliest opportunity
of making a representation against the order to the
State Government should be afforded, but that does
not make the State Government the detaining
authority as soon as the factum of detention is
communicated by the person concerned exercising
power under sub-section (2) as provided under sub-
section (3) thereof nor does it take away the power
of entertaining a representation from a detenu so
long as the order of detention has not been approved
by the State Government. In a case where an officer
other than the State Government issues an order of
detention under sub-section (2) of Section 3 his
powers as the detaining authority to deal with the
representation under the provisions of Section 21 of
the Bombay General Clauses Act, 1904, cannot be
said to be taken away merely because Section 8(1)
specifically provides for making a representation to
the State Government. Such failure would make the
order of detention invalid. As such the ratio of the
constitution Bench decision of this Court in
Kamleshkumar case would apply notwithstanding
that in Kamleshkumar case the Court was dealing
with an order of detention issued under the
provisions of the COFEPOSA Act".
15. The facts in the above said case are similar to
the facts in the present case. However, detention
order was issued in the above said case was under
Maharastra Prevention of Dangerous Activities of
Slumlords, Bootleggers, Drug Offenders and
Dangerous Persons Act, 1981, which appears to be in
paramateria with the Act. therefore, the law laid
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down in the above said judgment is aptly applicable
to facts of the present case.
16. There is no convincing arguments by learned
HCGP in respect of failure to mention the mandatory
information in the detention order by learned District
Magistrate. therefore, the impugned detention order
passed by the detaining authority as per Annexure -
A, C & E are invalid.
15. Following the above law laid down by he Hon'ble
Apex Court Division Bench of this court in the case of Syed
Abdul Madani V. State of Karnataka in WPHC No.51/2023
held that not informing such material fact to the detenue,
in the detention order it becomes invalid order. On this
ground, the impugned order passed by the detaining
authority is invalid and violative of Article 22 (5) of the
Constitution and not enforceable.
16. The second ground of attack on the detention order
is that there is unexplained delay in considering the
representation of detenue. According to submission of
learned advocate for petitioner, detenue had submitted
representation on 08-08-2023 and respondent State
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confirmed that the said representation was received by the
State on 10-08-2023. However, the said representation
was considered and rejected by the State on 24-08-2023.
There is no explanation in the rejection order for the delay
of 10-11 days in passing the said order. Thereby, the
said rejection order after delay of about 11 days is nothing
but violation of Article 21 and 22 of Constitution. In
support of the said submission, the learned advocate for
petitioner has relied on the following caess.
• Renukamma v. Deputy Commissioner & District
Magistrate in WPHC 36/2023;
• Rashid Kapadia v. Medha Gadgil and others2;
• Rajammal Vs. State of Tamil Nadu3.
17. There is no convincing reply in this regard by the
learned HCGP.
18. It is not in dispute that representation was
submitted by detenue on 08-08-2023 to the Jail
(2012) 11 SCC 745, Paragraph 13
1 SCC 417, paragraph 7 & 8
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Superintendent of Central Prison and the said
representation was received by the State Government on
10-08-2023. It was rejected by the State Government
vide order HD-221-SST-2023, Bengaluru dated 24-08-
2023. In the rejection order, all the materials placed on
record were reproduced and it was rejected. There is no
explanation for delay of 11 days in considering the
representation of detenue.
18(a). In the case of RENUKAMMA VS. DEPUTY
COMMISSIONER AND DISTRICT MAGISTRATE,
BENGALURU RURAL DISTRICT, passed by High Court of
Karnataka in W.P.No.36/2023 dated 20.09.2023 relying on
the law laid down by the Hon'ble Apex Court it is held that
unexplained delay in disposal of representation is fatal to
detention order. it is held as under:
18(b). In the case of Rashid Kapadia Vs. Medha Gadgil
and others4, it is held by the Hon'ble Apex Court that any
un-reasonable and un-explained delay in considering the
representation held fatal to continue detention and on that
(2012) 11 SCC 745
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ground alone, the detention order needs to be quashed. It
is held in the said case as under:
It is well settled that the right of a person,
who is preventively detained, to make a
representation and have it considered by the
Authority concerned as expeditiously as possible, is
a Constitutional right under Article 22(5). Any
unreasonable /and unexplainable delay in
considering the representation is held to be fatal to
the continued detention of the detenue. The
proposition is too well settled in a long line of
decisions of this Court.
18(c ). In the case of Rajammal Vs. State of
Tamilnadu and another5, it is held by the Hon'ble Apex
Court that "delay and disposal of the representation of the
detenue without justifiable reason is fatal to continue the
detention. In that case, the Minister concerned was not in
the Headquarters for approving the orders of the concerned
authority and on that basis, there was a delay. The
Hon'ble Apex Court held that such grounds are not
justifiable grounds. When the liberty of the Citizen granted
under Article 21 of the Constitution is involved in a
Preventive Detention matter". And on that basis, the
detention order was quashed by the Hon'ble Apex Court.
(1999) 1 SCC 417
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18(d) . In the case of Jayanarayan Sukul Vs. State
of West Bengal6, wherein the Apex Court held that:
It is established beyond any measure of
doubt that the appropriate authority is bound to
consider the representation of the detenue as early
as possible. The appropriate Government itself is
bound to consider the representation as
expeditiously as possible. The reason for immediate
consideration of the representation is too obvious to
be stressed. The personal liberty of a person is at
stake. Any delay would not only be an irresponsible
act on part of appropriate authority but also
unconstitutional because the Constitution enshrines
fundamental right of a detenue to have his
representation considered and it is imperative when
liberty of a person is in peril immediate action
should be taken by relevant authorities.
18(e) . In the case of Sumaiya Vs. The Secretary to
Government, Prohibition and Excise Department,
Government of Tamilnadu, Fort St.George, Chennai-9
and another7, in this case also, un-explained delay of
three days was held to be fatal to the detention order and
on that ground, the detention order was quashed.
1970 (1) SCC 219
2007 SCC OnLine Mad 700
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18(f) . In the decision of the Co-ordinate Bench of
this Court, in the case of Smt.Leelavathi Vs.
Commissioner of Police, Bengaluru and others8, it is
held that un-explained delay in considering the
representation of detenue would be fatal to the detention
order and the State cannot be permitted to sit on the
representation of the detenue when the person's liberty is
involved.
19. Therefore, impugned order of rejection passed by
the State Government after delay of unexplained delay of
11 days is also fatal to the detention order passed by the
respondents.
20. The learned advocate for petitioner has raised
another ground of attack on the impugned order that the
District Police Superintendent, Kolar, had sent a report
on 09-09-2023. It was considered by the District
Magistrate only on 24-04-2023. There is delay of about
more than two and half months in considering
representation by District Magistrate, which is not
ILR 2019 KAR 4105
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explained. Therefore, on this ground also, the impugned
order passed by the respondent is not tenable. In support
of the said submission, he relied on the judgment of
Hon'ble Apex Court in the case of Sushant Kumar Banik
v. State of Tripura and others9. The said submission is
not tenable. The said delay in considering the report of
the Superintendent of Police by the District Magistrate, do
not in any way affect or prejudice the rights of the
detenue. The District Magistrate had to apply his mind
and collect the materials to accept or reject the report of
the Superintendent of Police. Thereafter, he has to pass
the orders. Till such an orders are passed, the rights of
the detenue was not at all affected and moreover, under
the Act, there is no such provision mandating the District
Magistrate should pass orders on the report immediately.
Under such circumstances, the said delay do not affect the
rights of the detenue. The law laid down in the above said
judgment referred by the Petitioner, in the case of
Sushant Kumar Banik, is not applicable to the facts of the
(2022) SCC ONLINE SC 1333
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present case. We do not know what are the provisions
Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act 1988. Whether the
provisions of said Act is paramateria with Act or not is not
known to us. Therefore, there is no need to consider
much about the said contention of the Petitioner.
21. It is also a ground of attack of the Petitioner that
detaining authorities failed to provide translated copies of
the detention orders and supporting documents and
therefore detention stand vitiated. In support of the said
contention, he relied on judgment in the case of Jayamma
v. State of Karnataka10. It is a submission of the learned
advocate for Petitioner that detenue is knowing only Tamil
to read and write and the detention order or enclosures
were given to him were either in English or in Kannada
therefore he could not read and understand them and give
the representation at the earliest. The said contention is
also not tenable. It is pertinent to note that detenue has
ILR 2019 KARNATAKA 1543
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produced Xerox copy of his transfer certificate given by
the School at Susaipalyam, Andersonpet, K.G.F. The said
Transfer Certificate reveals that detenue knows/studied
Tamil, Kannada and English, but the medium of
instruction was Tamil. When he studied Tamil, Kannada
and English, we don't feel that he was not able to read
the contents of the detention order or enclosures
therewith. Moreover, as rightly submitted by learned
HCGP, the said documents are copies of charge sheet and
enclosures in the concerned criminal cases which were
supplied to detenue by the concerned court wherein the
cases are pending. Under those circumstances, in this
case, it is not fatal that the detenue was not supplied
with copy of the translated copies in Tamil. Moreover,
there is no material on record to show that detainue had
requested the detaining authority to supply translated
copy of detention order or other materials, in Tamil, on the
ground that he does not know to read and write Kannada
or English. Therefore, the said ground is not acceptable.
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22. It is also urged by the petitioner that the detaining
authority had not served copy of the bail application as
well as order passed on the bail petition by the concerned
court in favor of detenue and granting of the bail by the
concerned court in favor of detenue.. These grounds are
not tenable looking to the facts of present case. As already
stated above, detenue himself had applied for bail and
obtained order and on that basis released from bail. The
detaining authority has not relied much upon the bail
orders. On the contrary, it relied upon antecedents of
detenue and his involvement in heinous offences and on
that basis passed detention order. If the detaining
authority had relied much upon the bail orders given to
the detenue, in that event, it may be true that non-
supplying of the said materials to the detenue may be
fatal. But in this case, the said bail orders are not much
relevant. Under such circumstances, non-furnishing of
the same to the detenue is not fatal.
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23. For the aforesaid discussion, the detaining
authority had violated article 22 (5) of constitution in not
informing the detenue about his right to make
representation to the District Magistrate during
interregnum period from passing orders by District
Magistrate and approval by State. Similarly, unexplained
delay of 11 days in considering the representation made
by detenue. Therefore, the detention order passed by
the respondents need to be quashed. Accordingly, we
pass following order:
ORDER
i. Writ petition is allowed.
ii. The impugned order passed by the respondents
in No. MAG(2)CR/L&O(G)/01/2023-24 dated
24-04-2023, vide (Annexure-"A"), passed by
the first respondent under Section 3(2) of the
Act, the order bearing number HD-221-SST-
2023 dated 29-04-2023, vide (Annexure-
"B"), passed by the second respondent
under the Act, and the order bearing
reference number HD-221-SST-2023 dated
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09.06.2023, vide (Annexure-"C") passed by
the second respondent are quashed.
iii. The Authority is directed to release the
detenue- Mr.Edwin @ Agil, son of Lavvi @
Uttaranathan, age 32 years, forthwith from
the custody, if he is not required in any other
case.
iv. The registry is directed to send the operative
portion of the order to the detaining authority
forthwith for compliance.
Sd/-
JUDGE
Sd/-
JUDGE
AG
