Karnataka High Court
Sangeeta Sunkrol vs The Addl. District Magistrate And ... on 16 October, 2024
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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WPHC No. 200006/2024
R
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF OCTOBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
WRIT PETITION HABEAS CORPUS NO. 200006/2024
BETWEEN:
SMT. SANGEETA SUNKROL
W/O SATISH SUNKROL
(SATISH @ MARKET SATYA AS SHOWN IN
DETENTION ORDER DATED 29.05.2024)
AGED ABOUT 31 YEARS
R/A. YAKUB MANIYAR CHAWL
HEAD POST, KALABURAGI
PRESENTLY RESIDING AT:
#16-1-480,
POOSALBASTHI,
SAIDABAD,
HYDERABAD,
TELANGANA - 500 059.
...PETITIONER
Digitally signed
by VIDYA G R (BY SRI SANDESH CHOUTA, SENIOR ADVOCATE A/W
Location: HIGH SRI LAKSHMIKANTH G., ADVOCATE)
COURT OF
KARNATAKA
AND:
1. THE ADDL. DISTRICT MAGISTRATE AND
POLICE COMMISSIONER
KALABURAGI CITY
BY SRI CHETHAN R.
2. STATE OF KARNATAKA
BY UNDER SECRETARY
HOME DEPARTMENT (LAW & ORDER)
VIDHANA SOUDA
BENGALURU - 560 001.
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WPHC No. 200006/2024
3. SUPERINTENDENT
CENTRAL JAIL
BALLARI - 583 103.
... RESPONDENTS
(BY SRI Y.H. VIJAY KUMAR, ADDITIONAL ADVOCATE GENERAL A/W
SRI MALLIKARJUNA BASAREDDY, GOVERNMENT ADVOCATE)
THIS WRIT PETITION HABEAS CORPUS IS FILED UNDER
ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT OF HABEAS CORPUS DECLARING THAT THE
DETENTION OF SRI SATISH @ MARKET SATYA S/O
VENKATSWAMI REDDY BY ORDER DATED 29.05.2024 BEARING
REFERENCE NO.01/GOONDA/MAG-2/KC/2024 AT ANNEXURE-A &
A-1 PASSED BY RESPONDENT NO.1 UNDER SEC.3(1) & (2) OF
THE GOONDA ACT, AND APPROVAL ORDER BEARING REFERENCE
NO.HD 233 SST 2024, BENGALURU DATED 05.06.2024 AT
ANNEXURE-B PASSED BY THE R2 UNDER SEC.3(3) OF THE
GOONDA ACT AND CONFIRMATION ORDER BEARING REFERENCE
NO.HD 233 SST 2024, BENGALURU DATED 15.07.2024 AT
ANNEXURE-E PASSED BY RESPONDENT NO.2 UNDER SECTION 12
OF THE GOONDA ACT AS ILLEGAL AND VOID AB INITIO AND ETC.
THIS WRIT PETITION HABEAS CORPUS PERTAINING TO
KALABURAGI BENCH, RESERVED ON 01.10.2024 AND COMING ON
FOR PRONOUNCEMENT OF ORDERS AT PRINCIPAL BENCH,
BENGALURU THROUGH VIDEO CONFERENCING, THIS DAY,
S. SUNIL DUTT YADAV J., MADE THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
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CAV ORDER
(PER: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV)
The petition has been filed by the wife of the detenu
seeking for a declaration that detention of Satish Sunkrol
@ Market Satya by order dated 29.05.2024 bearing
No.01/Goonda/MAG-2/KC/2024 passed by the learned
Additional District Magistrate and Police Commissioner,
Kalaburagi City under Section 3(1) & (2) 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 to as 'the Act'] as being illegal and
void. The petitioner has also challenged the Order of
Approval dated 05.06.2024 bearing Reference No.HD 233
SST 2024 passed under Section 3(3) of the Act as well as
the Confirmation Order dated 15.07.2024 bearing
Reference No.HD 233 SST 2024 passed under Section 12
of the Act as being illegal.
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2. The timeline of the orders passed, drawn from
the synopsis of the petitioner is self-explanatory and the
same is reproduced as hereunder:
Sl. Description/Events Particulars/Date
No.
1. Writ Petition preferred by Smt. Sangeeta Sunkrol
2. Relationship with detenu Wife
3. Detenu's Name Sri Satish @ Market
Satya
S/o. Venkatswami Reddy
4. Order of Detention 29.05.2024
5. Arrest of Detenu 30.05.2024
6. The State approved the 05.06.2024
detention
7. The State confirmed and 15.07.2024
extended the detention for a
period of one year
3. The detention order dated 29.05.2024 is passed by
the respondent No.1-Additional District Magistrate and
Police Commissioner, Kalaburagi City and is enclosed at
Annexure-'A'. The said order narrates that the detune is a
'Goonda' as defined under Section 2 of the Act and was a
"professional criminal habituated to commit offence
against persons and property punishable under Chapters
VIII, XVI, XVII and XXII of IPC" and has been passed with
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a view to "curb his anti-social activities, causing breach of
peace and tranquility...".
4. The satisfaction of respondent No.1 that the
detenu is "most likely to act prejudicially to the interest of
public and indulge in criminal activities, thorough overt
and covert means, in case of release from custody". The
order is passed by invoking Section 3(1) & (2) of the Act.
5. The grounds for the order for detention have
been passed on 29.05.2024 making out a case as follows:-
i) Developing own group and starting criminal
activities;
ii) Involved in overt and covert offences;
iii) Assaulting public with dangerous weapons,
attempting to murder, abusing in filthy
language, picking quarrels, forming unlawful
assembly.
iv)Assaulting in public places, disturbing public
peace and tranquility.
v) Threatening complainant and witnesses for
life, assaulting those who deposed against
the Detenu in Court, rioting, etc.
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6. The grounds further detail offences under
various statutory provisions including under IPC, SC/ST
Act, Indian Arms Act.
7. The chronology of the occurrence of offences
since the year 2009 have been detailed as hereunder:
S.No. Police Station Date of Cr. No.& Section of Present status of the case
Report Law
1 R.G. Nagar PS, 01-10-2009 93/2009 U/Sec.147, Prl. Session's Judge Kalaburagi
Kalaburagi City 148, 448, 504, 324, 307 in SC No.232/2014, after trial,
R/w 149 IPC. acquitted on 30-09-2019.
2 Chowk PS, 12-02-2010 36/2010 U/Sec.341, III Addl. JMFC Kalaburagi in CC
Kalaburagi City 504, 506 R/w 34 IPC No.2614/2011 after trial,
acquitted on 01-01-2019
3. Chowk PS, 14-06-2011 128/2011 U/Sec.323, II Addl. Session's Judge
Kalaburagi City 324, 504, 506, 307 IPC Kalaburagi in SC No.456/2011
& 3(1) (11) SC/ST PA after trial, acquitted on 04-05-
Act. 2015
4. Brahmpur PS, 09-12-2012 128/2012 U/Sec.341, IV Addl. JMFC Kalaburagi in CC
Kalaburagi City 323, 324, 504, 506 R/w No.4263/2015 after trial,
34 IPC acquitted on 05-03-2018
5. Chowk PS, 13-01-2013 12/2013 U/Sec.399, III Addl. Session's Judge
Kalaburagi City 401, 120(B) IPC & 25 of Kalaburagi in SC No.58/2017
Indian Arms Act after trial, acquitted on 02-07-
6. Roza PS, 21-10-2013 63/2013 U/Sec.399, III Addl. Session's Judge
Kalaburagi City 402 IPC Kalaburagi in SC No.74/2015
after trial, acquitted on 14-04-
7. Chowk PS, 28-02-2014 27/2014 U/Sec. 143, V Addl. Session's Judge
Kalaburagi City 147, 148, 341, 324, Kalaburagi in Spl. Case
302, 504, 506, R/w 149 No.42/2014 after trial,
IPC & 3(1)(10), 3(2)(5) acquitted on 07-09-2019
SC/ST PA Act.
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8. R.G. Nagar PS, 06-01-2015 01/2015 U/Sec.386, II Addl. Session's Judge
Kalaburagi City 504, 506 R/w 149 IPC Kalaburagi in CC
No.9591/2022. the case is
pending for enquiry,
ND:12-06-2024
9. Chowk PS, 19-07-2015 121/2015 U/Sec.143, I Addl. Session's Judge
Kalaburagi City 147, 148, 323, 324, Kalaburagi in SC No.244/2017
342, 365, 307, 448, after trial, acquitted on 20-08-
504, 506 R/w 149 IPC 2018
10. Station Bazar 12-07-2015 132/2015 U/Sec.143, Prl. Session's Judge Kalaburagi
PS, Kalaburagi 147, 148, 341, 307, in SC No.55/2020 after
City 326, R/w 19 IPC completion of trial, ND: 04-06-
11. Chowk PS, 31-12-2015 210/2015 U/Sec.399, III Addl. Session's Judge
Kalaburagi City 402 IPC Kalaburagi in SC No.63/2018
after trial, acquitted on 10-12-
12. Station Bazar 03-03-2016 61/2016 U/Sec.143, Prl. JMFC Kalaburagi in CC
PS. Kalaburagi 147, 504, 506 R/W 149 No.5351/2016 after trial,
City IPC acquitted on 02-03-2020
13. Station Bazar 04-07-2016 137/2016, U/Sec. 143. Prl. Session's Judge, Kalaburagi
PS. Kalaburagi 307 R/W 149 IPC & 25, SC No.28/2019 pending for trial
City 27 Arms Act. ND:31-05-2024
14. Station Bazar 04-07-2016 138/2016 U/Sec. 353. III Addl. Session's Judge,
PS. Kalaburagi 307, 504, R/w 34 IPC Kalaburagi, SC No.27/2019. In
City this case, accused persons
Market Satya & Appushya @
Bandayya, are convicted
U/Sec.353 IPC, for 2 years
imprisonment and fine of
Rs.10,000/-
15. Brahmapur PS, 21-01-2016 20/2016 U/Sec. 143, II Addl. Session's Judge
Kalaburagi City 147, 148, 109, 302 R/w Kalaburagi in Spl. Case (SC/ST)
149 IPC & 3 (1), 3(2) No.25/2016, after trial,
(5) SC/ST Act acquitted on 20-03-2018
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16. Tunga Nagar PS, 15-12-2016 586/2016 U/Sec. 3, 25 III Addl. JMFC at Shivamogga
Shivamogga (1) (aa) Indian Arms CC No.797/2019, pending for
Act & 41 (d) CRPC & enquiry, ND: 27-06-2024, NBW
120(b) 307, R/w 34 IPC is passed against accused on
23-04-2024, but NBW not
executed ND:27-06-2024
17. Shrirangapattan 29-11-2016 124/2016 U/Sec. 75 IPC III Addl. Session's Judge
Rural PS, & 3, 25 (a) 25(1a) Shrirangapatna, SC
Mandya Indian Arms Act No.5068/2022 pending for trial,
ND:06-06-2024.
18. Shrirangapattan 29-10-2016 537/2016 U/Sec.395, III Addl. JMFC, Shrirangapatna
PS, Mandya 363 IPC SC No.5009/2020 pending for
19. K.R. Sagar PS, 15-02-2017 62/2017 U/Sec. 75, trial, ND:06-06-2024.
Mandya 347, 363, 386, 395 IPC
20. Chowk PS, 23-03-2017 46/2017 U/Sec.143, Prl. Session's Judge, Kalaburagi
Kalaburagi City 147, 148, 341, 326, Spl. KCOCA Case No.1/2017
109, 120(b), 393, 307, pending for trial, ND:04-06-
201, 212 R/w 149 IPC & 2024.
2 (d) (e) (f) & 3(1)(2)
3(2) 3(4) 3(5) (KCOCA
Act)
21. Chowk PS, 30-05-2018 140/2018 U/Sec.504, II Addl. JMFC Kalaburagi in CC
Kalaburagi City 506 IPC. No.220/2020, after trial,
acquitted on 13-01-2023
22. Brahmapura, 18-10-2020 105/2020 U/Sec.341, IV Addl. JMFC, Kalaburagi, CC
Kalaburagi City 504, 506 R/w 34 IPC No.10478/2021 pending for
trial, ND:04-06-2024.
23. Sub Urban 03-11-2020 133/2020 U/Sec.399, V Addl. JMFC, Kalaburagi CC
Station PS, 402 IPC No.48/2021 pending for trial,
Kalaburagi City ND:04-06-2024.
24. Siadabad PS, 26-10-2020 365/2020 U/Sec.341, VII Addl. CMM Court
Telangana State 323, 506 R/w 34 IPC Hyderabad, CC No.16363/2020,
pending for enquiry, ND:10-07-
25. Bagalgunti PS, 08-04-2021 134/2021 U/Sec.399, XXXI Addl. CMM Court,
Bangalore CCB 402 IPC 7, 254(1b)(b) Bengalore, SC No.1225/2023,
Unit Arms Act. pending for enquiry, ND:09-07-
2024.
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8. The grounds of detention also contains details
of proceedings under Section 107 of Cr.P.C. which are as
follows:
S No. PS Name Date of Report PAR No. & Present status
Section
1 Chowk 11.02.2023 12/2023 Dated: 15.03.2023 MAG
U/s 107 No.:131/2023, Bonded
CrPC Over
2 Chowk 17.03.2024 22/2024 Dated: 15.03.2023 MAG
U/s 107 No.:131/2023, Bonded
CrPC Over
9. The details of the cases pending against ten of
his accomplices are detailed and contain name of the
accomplice, cases registered against them and details of
the provision of law under which case is registered along
with details of the police station.
10. The order containing the grounds of detention
also details reasons for confinement as follows:
(i) Crime in inter-district and inter-state
(ii) Conviction by the courts
(iii) Prime accused in many heinous cases
(iv) Rowdy sheeter and habitual offender
(v) NBW issued for non appearance in court cases
(vi) No respect towards the law of the land
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(vii) Goonda in nature and tendency to form unlawful
assembly
(viii) Atrocity on SC/ST community
(ix) Purchasing and selling illegal weapons
(x) Prime accused in KCOCA cases
(xi) Torturing people brutally
(xii) Tendency to indulge in acts prejudicial to public
peace and tranquility
11. It was further stated in the said order that 'A' type
Rowdy Sheet was opened against the detenu at Chowk
Police Station Kalaburagi City and that the detenu was a
threat to public tranquility, that the detenu has misused
the opportunities granted by means of bail and involved
himself in anti-social activities. It was stated that when the
Police tried to apprehend the detenu, he used to go
absconding and make appearance before the Court for
obtaining anticipatory bail. It is also averred that the he
had not changed his lifestyle and continued to disturb
peace and tranquility of public. It was observed that many
of the people had not given complaints out of fear, owing
to his goonda nature and those who had dared to give
complaints or appear as witnesses have turned hostile due
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to his threats. The Detaining Authority was of the "opinion
that your Goondaism has resulted in disturbance of public
peace and tranquility Kalaburagi City. Your propensity of
terrorizing public has been successful. The people in the
city are feeling unsafe. If you are let free, you will again
be indulging in the same activities, prejudicial to public
peace and tranquility. You have also indulged in tampering
and destroying evidence. Intimidating innocent people,
assaulting them fatally, attempting to murder them and
committing extortion etc., are the order of day for you.
The reports before me are self-evident that you have
committed grave crimes time and again, as defined in
provisions of Chapter-III, V, VIII, XVI, XVII, XVIII & XXII
of IPC. Therefore, I am of explicit opinion that the
provisions of Sec.2(g) regarding definition of Goonda, of
The Karnataka Prevention of Dangerous activity of
Bootleggers, Drug Offenders, Gamblers, Goondas,
Immoral Traffic Offenders, Slum Grabbers, Act, 1985
(Karnataka Act No.12 of 1985), and Amendment Act 2009,
is aptly applicable to you". Accordingly, it is stated that it
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was necessary to detain the detenu under Section 8 of the
Act for maintaining public peace and tranquility. It was
concluded as follows, "Hence, for the reasons discussed
above, you are a 'Goonda'as defined U/Sec.2(g) of the Act,
who has no respect rather fear for the law of the land. You
have been time and again indulged in disturbing the public
peace and tranquility. Therefore, acting U/Sec.3(1) of the
Act, I have passed the order for your detention on
29.05.2024."
12. The order provided that the detenu could make a
representation to the advisory board and could avail of
other legally permissible opportunities before the advisory
board.
13. Finally, the Confirmation Order has been passed,
which orders have been challenged in the present
proceedings.
14. The contentions of the petitioner are adverted to in
the course of analysis of the grounds raised to avoid
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repetition. The legal attack as regards orders of Preventive
Detention are often on the ground that the order of
Preventive Detention must be supported by the existence
of a 'live and proximate link' between the past conduct and
present imperative need to detain the detenu. The Courts
have held that an order of preventive detention must be
passed by due application of mind and taking note of
relevant factors. If orders are passed on the basis of
incidents which are stale, it is often stated that incidents
not being of relevance to establish imperativeness in
passing an order of detention and such orders passed
must be treated as being based on extraneous factors. The
observations made by the Apex Court at para-22 in Sama
Aruna v. State of Telangana and Another1, would be of
appropriate relevance and are extracted herein below:
"22. We are of the view, that the detention order
in this case is vitiated by taking into account
incidents so far back in the past as would have no
bearing on the immediate need to detain him
without a trial. The satisfaction of the authority is
(2018) 12 SCC 150
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not in respect of the thing in regard to which it is
required to be satisfied. Incidents which are stale,
cease to have relevance to the subject-matter of
the enquiry and must be treated as extraneous to
the scope and purpose of the statute."
15. In such cases, the question would also arise
regarding validity of an order of detention where after the
last of such incidents there is a lull and after a substantial
time lag an order of detention is sought to be passed. The
detaining authority must establish habituality of
commission of offences that could be directly linked to a
pattern of behavior. In order to establish such pattern of
behavior which would reasonably indicate continuing
commission of offences, the authority must establish
intermittent commission of offences which would indicate a
regular pattern.
16. In series of judgments, the Apex Court has held
that the order of detention must not be based upon stale
events and the relevant observations made by the Apex
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Court in Ameena Begum v. State of Telangana and
Others2 are as follows:
"19. In holding that the order of detention
therein was grounded on stale grounds, the
Court in Sama Aruna [Sama Aruna v. State of
Telangana, (2018) 12 SCC 150 : (2018) 3 SCC
(Cri) 441] held that : (SCC p. 158, para 17)
"17. ... The detention order must be
based on a reasonable prognosis of the
future behaviour of a person based on his
past conduct in light of the surrounding
circumstances. The live and proximate
link that must exist between the past
conduct of a person and the imperative
need to detain him must be taken to
have been snapped in this case. A
detention order which is founded on stale
incidents, must be regarded as an order
of punishment for a crime, passed
without a trial, though purporting to be
an order of preventive detention. The
essential concept of preventive detention
is that the detention of a person is not to
punish him for something he has done
but to prevent him from doing it."
(emphasis supplied)
(2023) 9 SCC 587
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20. This was further affirmed by this Court
in Khaja Bilal Ahmed v. State of
Telangana [Khaja Bilal Ahmed v. State of
Telangana, (2020) 13 SCC 632 : (2020) 4 SCC
(Cri) 629] , where the detention order dated 2-
11-2018 issued under the Act had delved into
the history of cases involving the appellant
detenu from the years 2007-2016, despite the
subjective satisfaction of the officer not being
based on such cases. In quashing such an
order, Hon'ble Dr D.Y. Chandrachud, J. (as the
Chief Justice then was) observed : (SCC pp.
645-46, para 23)
"23. ... If the pending cases were not
considered for passing the order of
detention, it defies logic as to why they
were referred to in the first place in the
order of detention. The purpose of the
Telangana Offenders Act, 1986 is to
prevent any person from acting in a
manner prejudicial to the maintenance of
public order. For this purpose, Section 3
prescribes that the detaining authority
must be satisfied that the person to be
detained is likely to indulge in illegal
activities in the future and act in a manner
prejudicial to the maintenance of public
order. The satisfaction to be arrived at by
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the detaining authority must not be based
on irrelevant or invalid grounds. It must
be arrived at on the basis of relevant
material; material which is not stale and
has a live link with the satisfaction of the
detaining authority. The order of detention
may refer to the previous criminal
antecedents [Ed. : The word between two
asterisks has been emphasised in
original.] only [Ed. : The word between
two asterisks has been emphasised in
original.] if they have a direct nexus or
link with the immediate need to detain an
individual. If the previous criminal
activities of the appellant could indicate
his tendency or inclination to act in a
manner prejudicial to the maintenance of
public order, then it may have a bearing
on the subjective satisfaction of the
detaining authority. However, in the
absence of a clear indication of a causal
connection, a mere reference to the
pending criminal cases cannot account for
the requirements of Section 3. It is not
open to the detaining authority to simply
refer to stale incidents and hold them as
the basis of an order of detention. Such
stale material will have no bearing on the
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probability of the detenu engaging in
prejudicial activities in the future."
(emphasis supplied)
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:
28.7. 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;"
17. The burden of establishing this 'proximate and
live link' is on the detaining authority. The law of
Preventive Detention which results in detention without
trial though is sanctioned by article 22 of the grundnorm
i.e. the Constitution, this provision of preventive detention
still falls within Part-III of the Constitution of India and
the only way of reconciling preventive detention with the
other rights of the same Chapter under Articles 14, 19 and
21 is by treating it as an exception and requiring making
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out of grounds justifying preventive detention in a strict
manner3.
18. In the present case, the order of detention is
passed by the detaining authority invoking power under
Sections 3(1) and 2 of the Act on 29.05.2024. The
detailed enumeration of offences involving the detenu
starting from 2009 till date of passing of the order would
indicate registering of First Information Reports
commencing from 01.10.2009 and continuing till
08.04.2021.
19. Between 08.04.2021 and 29.05.2024 admittedly
there are no incidents warranting registration of even first
information reports. Insofar as such apparent time gap of
about approximately thirty-five (35) months, the State
points out to proceedings under Section 107 of Cr.P.C.
initiated on the basis of report dated 11.02.2023 and
17.03.2024 as is evidenced by the table extracted supra at
The Apex Court in Icchu Devi Choraria v. Union of India - (1980) 4 SCC 531, has
observed at para 5 that the burden of showing the detention is in accordance with the
procedure established by law has been placed by the Court on the Detaining Authority in
light of the mandate under article 21 of the Constitution of India
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para-8. The question as to whether proceedings under
Section 107 would amount to establishing of 'proximity' as
well as 'live link' and justifying imperativeness in passing
an order of preventive detention, requires to be
addressed.
20. No doubt, the proceedings under Section 107 of
Cr.P.C. does indicate that the Executive Magistrate acting
upon information that any person is likely to commit
breach of peace or disturb public tranquility may require
such person to execute a bond for keeping peace.
However, it must be noticed that the proceedings under
Section 107 do not by themselves constitute an offence
punishable under Chapters-VIII, XV, XVI, XVII, XXII of IPC
as is required to declare a person as a 'Goonda' in terms of
Section 2(g) of the Act. The absence of an incident leading
to registration of first information report for about thirty-
five (35) months is too long a period to establish a
continued propensity to once again commit offence
affecting 'public order'. The apprehension of the Executive
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Magistrate under section 107 of Cr.P.C. if is to constitute a
'live link' is required to be backed by some additional
material as well which is absent in the present case.
21. The grounds of detention that could constitute a
'live link' are repeat offences proximate to passing of the
detention order since the last incident. Certain acts in the
interregnum may not constitute offences but may still
indicate potentiality of indulging in crime. An effort
towards demonstration of the above by the police
authorities is by referring to certain grounds such as;
"NBW issued for non-appearance in Court cases; no
respect towards the law of the land; tendency to indulge in
acts prejudicial to public peace and tranquility; rowdy
sheeter and habitual offender".
However it must be noticed that the above grounds
that may cast an impression of apprehension of breach of
law must be supported by material, though may not
constitute an offence, material must be sufficient to at
least constitute a seed of the impending offence. Mere
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vague assertions of habitual offender ipso facto may not
be sufficient. The observations made by the Apex Court in
Khudiram Das v. State of West Bengal and Others 4,
in the context of subjective opinion regarding the detenu
on the basis of available material, of immediate relevance
to present context are as follows:-
"9. ... Then again the satisfaction must be
grounded "on materials which are of rationally
probative value". Machindar v. King [AIR 1950 FC
129 : 51 Cri LJ 1480 : 1949 FCR 827] . The
grounds on which the satisfaction is based must
be such as a rational human being can consider
connected with the fact in respect of which the
satisfaction is to be reached..."
22. The assertion regarding issue of NBW for non-
appearance in Court cases, if was supported by reference
to the incidents of non-appearance without obtaining
exemptions from appearance in the case referred at
ground No.5, perhaps could have been considered as an
aspect of behavior in contravention of legal requirement of
(1975) 2 SCC 81
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appearance unless exempted in criminal proceedings.
However, in the absence of furnishing of order-sheet
reflecting Court proceedings in "Crime No. 586/2016 of
Tunganagar PS, Shimogga District", there can be no
inference drawn of his non-adherence to mandatory
appearance in criminal proceedings in the absence of
objectively verifiable material. No doubt, in the order of
detention which enumeration the involvement in criminal
offences punishable under various chapters of IPC, at Sl.
No.16 though it is mentioned that the NBW was issued
against the accused on 23.04.2024 but not executed, such
assertions by itself may not be sufficient unless the order
sheet reflecting Court proceedings was produced and
furnished to the accused.
23. It is necessary to note that even after
enumeration of the grounds of detention, if the same is
premised on material, the same must be shared with the
detenue.
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24. In light of the detaining authority referring to
issuance of NBW as a reason for confinement, it was
necessary that such document was furnished to the detenu
which admittedly has not been served. The reason for
construing any deviation in procedure of furnishing relied
upon documents as being fatal to the order of preventive
detention is the primacy given the right to reply and
appose an order of preventive detention as envisaged
under Article 22(5) of the Constitution of India.
The constitutional right contained under Article 22
sub-clause (5) of making a representation against the
order of preventive detention will be rendered nugatory
unless the grounds of detention are not only clear but the
documents relied upon are furnished. If the ground made
out is NBW was issued for non-appearance in Court cases,
in such event as observed above unless the court
proceedings indicating absence of attendance without
exemption are communicated to the detenu, the right of
representation will remain an illusory right that cannot be
effectuated. Accordingly, inspite of details being furnished
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regarding issuance of NBW in a portion of detention order
that by itself will not be sufficient in the absence of
document evidencing court proceedings to enable effective
reply. It needs to be noted that while the order of
detention itself details the availment of an opportunity of
representation, at such point of time the detenu is already
under detention and accordingly, if the detenu is required
to make out a reply or representation while in custody, it
would be necessary that the detenu must be furnished
with the documents relied upon. Non-supplying of such
documents as in the present case, the record containing
the proceedings would indeed prejudice the right of the
detenu to make out a representation and would
consequently initiate the order of detention.
25. The contention of the State that the aspect of
prejudice is required to be demonstrated as the detenu is
party to the legal proceedings cannot be accepted in light
of his right to representation being exercised when he is
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already under detention and accordingly, access to records
cannot be effectively exercised.
26. Other assertions in ground No.6 viz., 'no
respect towards law of land' or ground No.4 'Rowdy
sheeter and habitual offender' or ground No.12 'tendency
to indulge in acts prejudicial to public peace and
tranquility' are either vague as in case of ground No.12 as
no specific incident is narrated so as to fill in the gap
between 08.04.2021 and 29.05.2024 or are stale grounds
as the rowdy sheet referred to in ground No.4 relates to
the rowdy sheet opened on 19.08.2011.
27. Accordingly, the lack of demonstration of a
proximate link between 08.04.2021 and 29.05.2024 has
resulted in the order of detention being based on stale
incidents. The assertion of habitual offender or absence of
respect towards law of the land and other assertions as
made in the ground of detention are not sufficient to
maintain the thread of connection between the last
incident and the order of detention in the absence of any
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material to substantiate propensity to commit crime
realistically. Thus, the order stands vitiated.
The requirement of 'proximity/live link' is required to
demonstrate imperativeness in invoking power of
preventive detention more so where criminal prosecution
is pending which proceedings may culminate in imposition
of a punitive sentence. It is a settled position of law that
the power of passing an order of preventive detention
cannot be a punitive measure on the apprehension
however reasonable it maybe that the detenu is going to
go scot free in the pending trials due to lack of support to
the prosecution by the crucial witnesses or otherwise.
28. The power of preventive detention as the very
word indicates has to be used bono fidely for the purpose
of prevention of possible criminal offences by the detenu
based on past behavior with a pattern of repeat offences.
The observations of the Apex Court in Khudiram Das
(supra) would throw light on the above, the relevant
observations are as follows:-
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"8.... The power of detention is clearly a
preventive measure. It does not partake in any
manner of the nature of punishment. It is
taken by way of precaution to prevent mischief
to the community. Since every preventive
measure is based on the principle that a person
should be prevented from doing something
which, if left free and unfettered, it is
reasonably probable he would do, it must
necessarily proceed in all cases, to some
extent, on suspicion or anticipation as distinct
from proof..."
29. When the incidents constituting the last
incident stops about thirty-five (35) months back and as
discussed above the thread of connectivity between the
last incident and the order of preventive detention is lost.
The order of detention can be stated to be based on stale
events in the absence of live link.
30. Intertwined with the issue of proximity and live
link are other factors that have vitiated the order of
detention in the present case. It is a settled position that
the grounds of detention cannot be vague but must be
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certain and spelling out a ground that can be
demonstrated to be absent by the detenu. To enable such
effort of demonstration, the ground itself should be clear
enough to enable demonstrating its absence.
31. In the present case the ground No.12,
'tendency to indulge in acts prejudicial to public peace and
tranquility' is vague as it is not supported by material
incidents that are verifiable, ground No.8 'atrocities on
SC/ST communities', ground No.6 'no respect towards law
of the land', suffer from similar vice of vagueness without
any support from factual and material assertions based on
legally recognizable events. Though in ground No.6 there
is a specific assertion detenu has "time and again violated
the terms and conditions imposed by the Court at the time
the bail", no details are forthcoming as to the incidents
constituting breach of the terms and conditions imposed
at the time of granting bail. Admittedly, copies of the
order enlarging the detenu on bail containing the
conditions are not produced nor served upon the detenu.
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Considering that the right to represent against the order
of detention is exercised while he is in detention, non
furnishing of documents can be taken ipso facto causing
prejudice.
Similarly, while referring to ground No.8, there is no
enumeration of incidents. No doubt as regards ground
No.8, certain cases relating offences under SC/ST
Prevention of Atrocities Act are mentioned but it is also
necessary to link the commission of offences under the
SC/ST Prevention of Atrocities Act, so as to reveal the
commission of offences as regards a community so as to
affect 'public order' and not constitute merely a 'law and
order' situation. A perusal of the allied offences along with
the SC/ST Prevention of Atrocities Act, would indicate that
the allied offences are offences against persons relating to
bodily injury of individuals and though may constitute an
issue of law and order but however, cannot be construed
to be offences leading to an issue of public order namely,
an issue between different communities and the like
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circumstances which only can be construed to be an issue
affecting public order.
32. It is necessary to notice that there is a
difference between the concept of law and order and
public order. The legal basis of an order of preventive
detention as under the Act of 1985 has the adverse effect
on the maintenance of public order. The explanation to
Section 2 of the Act throws light on the expression 'public
order' as follows:
Explanation.- For the purpose of this clause,
public order shall be deemed to have been
affected adversely or shall be deemed likely to
be affected adversely inter alia if any of the
activities of any of the persons referred to in
this clause directly or indirectly, is causing or is
calculated to cause any harm, danger or alarm
or a feeling of insecurity, among the general
public or any section thereof or a grave or
widespread danger to life or public health"
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The repeated use of the word 'public order' must be
understood in terms of the explanation and in contra
distinction to meaning ascribed to the word law and order.
33. The distinction between 'law and order and
public order' is best expressed in the words of Hon'ble M.
Hidayatullah, J. in Ram Manohar Lohia v. State of
Bihar5 are as follows:
"54. ...Public order if disturbed, must lead to
public disorder. Every breach of the peace does
not lead to public disorder. When two
drunkards quarrel and fight there is disorder
but not public disorder. They can be dealt with
under the powers to maintain law and order
but cannot be detained on the ground that they
were disturbing public order. Suppose that the
two fighters were of rival communities and one
of them tried to raise communal passions. The
problem is still one of law and order but it
raises the apprehension of public disorder.
Other examples can be imagined. The
contravention of law always affects order but
before it can be said to affect public order, it
must affect the community or the public at
1965 SCC Online SC 9
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large. A mere disturbance of law and order
leading to disorder is thus not necessarily
sufficient for action under the Defence of India
Act but disturbances which subvert the public
order are...
55. It will thus appear that just as "public
order" in the rulings of this Court (earlier cited)
was said to comprehend disorders of less
gravity than those affecting "security of State",
"law and order" also comprehends disorders of
less gravity than those affecting "public order".
One has to imagine three concentric circles.
Law and order represents the largest circle
within which is the next circle representing
public order and the smallest circle represents
security of State. It is then easy to see that an
act may affect law and order but not public
order just as an act may affect public order but
not security of the State..."
34. The above observation of Hon'ble
M. Hidayatullah, J. is self-explanatory and would clearly
indicate that though there is an overlap between law and
order and public order, every incident that may affect law
and order need not necessarily lead to an issue of public
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order. It is for the detaining authority to demonstrate that
incident resulting in a law and order situation has also
graduated in to an issue of public order which alone can
justify passing of an order of preventive detention. Unless
there is such analysis, the order of preventive detention
may fail on the ground of not reflecting application of mind
or on the ground that the test of fulfillment of public order
remains unfulfilled. The overlap of law and order, public
order and security of state as envisaged by Hon'ble M.
Hidayatullah, J. can be depicted pictorially as below:
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35. The order of detention does not spell out by
reasons as to how the offences not merely constitute a
breach of 'law and order' but in fact constitutes breach of
'public order' and unless such distinction is made out,
mere use of expressions disturbing public peace,
tranquility, etc., are not sufficient. The burden upon the
State while passing orders of preventive detention is
onerous, warranting clarity in exercise of power on
grounds of public order and not merely of law and order.
The requirement of nexus between the offences stated to
have been committed and the breach of public order must
be clearly established and lack of such demonstration in
the order itself would also make the order being passed
without application of mind.
36. Though the State has contended that the order
of preventive detention can still be upheld if any one
ground of detention is made out and mere invalidity of
some grounds would not vitiate the order in its entirety,
however, in the present case the requirement of proximity
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and live link being a sine qua non of order of detention
and in the absence of proximity and live link, the entirety
of the order stands vitiated. Accordingly, the question of
entering into sustainability of each of the grounds by
clinical dissection also does not arise.
37. No doubt, the Apex Court has clarified in
Bhupendra v. State of Maharashtra and Another6 that
though the incident may not be of immediate proximity
but may indicate a pattern, however, in the present case,
a perusal of the nature of offence also does not reflect any
pattern indicating continued propensity to commit offences
affecting public order.
38. The details of the cases pending would reflect
offences of various kinds including offences against the
body, offences relating to property (robbery), offences
relating to rioting with dangerous weapons. The offences
enumerated cannot lead to the inference of a pattern of
commission of offences relating to public order. Keeping in
(2008) 17 SCC 165
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mind the distinction between offences affecting law and
order and those affecting public order, there is no pattern
regarding commission of offences relating to the latter
category. Accordingly, the contention of the State that the
aspect of proximity cannot be defeated if there exists a
pattern, is liable to be rejected in light of the above
discussion.
39. It must be noticed that the role of the advisory
board is a constitutional protection afforded in cases of
detention without trial in order to protect personal liberty.
The Apex Court in Nenavath Bujji etc. v. State of
Telangana and Others7, has dealt with the duties of an
Advisory Board at paragraph Nos.55 to 62 and emphasized
that the opinion of the Advisory Board ought to lead to
confirmation only upon the evaluation and scrutiny by the
Board as an independent authority which itself ought to
determine that such order of detention is necessary. It is
also observed that the Advisory Board is take into
2024 SCC Online SC 367
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consideration all aspects and not just the subjective
satisfaction of the detaining authority but must also
examine whether such satisfaction justifies detention of
the detenu. The Apex Court has opined that "59. ... The
advisory board must consider whether the detention is
necessary not just in the eyes of the detaining authority
but also in the eyes of law". It is emphasized that the role
of the Advisory Board does amount to an independent
scrutiny as envisaged under Article 22 of the Constitution
of India.
40. If such guideline and legal mandate of the
Advisory Board are kept in mind, the present opinion of
the Advisory Board falls short of such independent
evaluation. A perusal of the said opinion would reveal that
the opinion expressed does not reflect an "independent
scrutiny". The requirement of an independent scrutiny
would call for not only as regards to the subjective
satisfaction of the detaining authority but also the
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justification in law for passing an order of preventive
detention.
41. The distinction between the judicial review of an
order of detention as also an order of confirmation of
detention preceded by an opinion of the Advisory Board
would necessarily involve commenting upon the opinion of
the Advisory Board. The supremacy of judicial review
though in the present case by a Bench of two Judges,
would subject the opinion of the Advisory Board though
consisting of three Judges to a process of judicial review
by Bench of lesser number of Judges. The approach while
dealing with an opinion of the Advisory Board by the
Judges of the High Court would place them in a different
role vis-à-vis the Judges of the High Court while exercising
the power of judicial review.
Accordingly, in the present case, the Bench is
constrained but obligated to deal with the opinion of the
Advisory Board though rendered by a numerically larger
number of Judges.
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42. Accordingly, the opinion of the Advisory Board
itself being defective fails the test of judicial scrutiny in the
process of judicial review and accordingly, the order of
confirmation also stands vitiated not being assisted by an
opinion as envisaged by the Apex Court8 which ought to
have been an independent scrutiny.
43. Accordingly, the petition is allowed. The order
of detention and its confirmation are set aside forthwith.
The detenu shall be released forthwith and the order of
such release must be communicated to the detaining
authority by electronic mode as well.
Sd/-
(S. SUNIL DUTT YADAV)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
VGR
Nenavath Bujji etc. v. State of Telangana and Others (supra)
