Karnataka High Court
Shaziya vs The State Of Karnataka on 14 August, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA
®
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF AUGUST, 2025
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE T.M.NADAF
WRIT PETITION HABEAS CORPUS No.200011/2025
BETWEEN:
MRS. SHAZIYA
W/O. RUSTUM AHMED @ RUSTUM,
AGE: 33 YEARS,
OCC: ENGINEER,
R/O: H.NO.11-1041/4B, MSK MILLS,
MOHAMMADI MAJID MOHAMMADI CHOWK,
DIST : KALABURAGI - 585 103.
...PETITIONER
Digitally signed (BY SRI S. S. MAMADAPUR, ADVOCATE)
by SACHIN
Location: HIGH AND:
COURT OF
KARNATAKA
1. THE STATE OF KARNATAKA,
REP BY IT'S SECRETARY,
DEPARTMENT OF INTERNAL,
ADMINISTRATION (LAW & ORDER),
VIDHANA SOUDHA, BANGALORE - 560 001.
2. THE ADDL. DISTRICT MAGISTRATE &
COMISSIONER OF POLICE,
KALABURAGI CITY - 585 101.
3. THE DEPUTY COMMISSIONER OF
POLICE (L & O) AND
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SPECIAL EXECUTIVE MAGISTRATE,
KALABURAGI CITY - 585 101.
4. THE ASSISTANT COMMISSIONER OF
POLICE, SOUTH SUB-DIVISION,
KALABURAGI CITY - 585 101.
5. THE POLICE INSPECTOR,
RAGHVENDRA NAGAR POLICE STATION,
KALABURAGI - 585 103.
6. THE SUPERINTENDENT OF
CENTRAL JAIL, BALLERI - 583 103.
...RESPONDENTS
(BY SRI MALLIKARJUN C. BASAREDDY, GA)
THIS WRIT PETITION HABEAS CORPUS IS FILED UNDER
ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA,
PRAYING TO ISSUE A WRIT OF HABEAS CORPUS OR ANY
OTHER WRIT OR DIRECTION OR ANY OTHER ORDER IN THE
NATURE OF WRIT DIRECTING THE RESPONDENTS TO PRODUCE
PETITIONER'S HUSBAND MD. RUSTUM AHMED @ RUSTUM S/O
ABDUL RASHID BEFORE THIS HON'BLE COURT AND
CONSEQUENTLY SET HIM FREE IN THE EVENT OF HIS ILLEGAL
DETENTION BY THE RESPONDENTS AND ISSUE A WRIT OF
CERTIORARI OR ANY OTHER ORDER OR DIRECTION IN THE
NATURE OF A WRIT QUASHING THE DETENTION ORDER
PASSED BY THE RESPONDENT-2 DATED 20.03.2025 IN CASE
BEARING NO.01/GOONDA/MAG-2/KN/POAA/2025 AS PER
ANNEXURE-A IN RESPECT OF DETENUEE MD. RUSTUM AHMED
@ RUSTUM S/O ABDUL RASHID AND ALSO ISSUE A WRIT OF
CERTIORARI OR ANY OTHER ORDER OR DIRECTION IN THE
NATURE OF WRIT QUASHING THE ORDER PASSED BY 1ST
RESPONDENT BEARING NO.HD 163 SST 2025 DATED
29.04.2025 AS PER ANNEXURE-G CONFIRMING THE ORDER OF
DETENTION PASSED BY THE 2ND RESPONDENT AS ILLEGAL
AND VOID.
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THIS WP(HC) COMING ON FOR ORDER HEARING AND
HAVING BEEN HEARD AND RESERVED ON 30.07.2025,
COMING ON FOR PRONOUNCEMENT, THIS DAY, MADE THE
FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
AND
HON'BLE MR. JUSTICE T.M.NADAF
CAV ORDER
(PER: HON'BLE MR. JUSTICE H.P. SANDESH)
Heard learned counsel for petitioner and also learned
Government Advocate for respondents.
2. This writ petition is filed under Articles 226 and
227 of Constitution of India praying this Court to grant
following reliefs:
"i) Issue a writ of Habeas Corpus or any other writ or
direction or any other order in the nature of writ
directing the respondents to produce petitioner's
husband Md. Rustum Ahmed @ Rustum S/o Abdul
Rashid before this Hon'ble Court and consequently set
him free in the event of his illegal detention by the
respondents in the interest of justice and equity.
ii) Issue a writ of certiorari or any other order or direction
in the nature of a writ quashing the detention order
passed by the respondent-2 dated 20-03-2025 in case
bearing No.01/Goonda/MAG-2/KN/POAA/2025 as per
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Annexure-A in respect of detenue Md. Rustum Ahmed
@ Rustum S/o Abdul Rashid.
iii) Issue a writ of certiorari or any other order or direction
in the nature of writ quashing the order passed by the
1st respondent bearing No. HD 163 SST 2025 dated 29-
04-2025 as per Annexure-G confirming the order of
detention passed by the 2nd respondent as illegal and
void"
3. The factual matrix of the case is that the
petitioner is the wife of detenue Md. Rustum Ahamed @
Rustum, having four children. Respondent nos.3 to 5 have
submitted a proposal to respondent No.2 for the
preventive detention of petitioner's husband and
submitted a detailed report along with documents invoking
the provisions of the Goonda Act. It is also contended that
based on the proposal made by respondents No.3 to 5,
respondent No.2 exercising his power under
Section 3(1) of the Karnataka Prevention of Dangerous
Activities of Bootleggers, Drug Offenders, Gamblers,
Goonda, Immoral Traffic Offenders, Slum Grabbers and
Video or Audio Pirates Act, 1985 (herein after referred to
as 'the Act' for brevity), passed an order dated
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20.03.2025, in Case No.1/Goonda/MAG-2/KN/POAA/2025.
A copy of the order is also produced as Annexure-A. It is
also contended that respondent No.1-State also confirmed
order passed by respondent No.2 through an order dated
29.04.2025, Annexure-G.
4. Pursuant to both these orders, a representation
was given by the detenue dated 01.04.2025 before the
Advisory Board i.e. detaining authority as per Annexure-C
and the letter of respondent No.1 dated 04.04.2025,
rejecting the representation is at Annexure-D. It is
contended that, next, a notice was issued by the Advisory
Board (respondent No.1), asking the detenue to be
present before them for submitting his representations.
Accordingly, the representation was given on 15.04.2024.
Both the notice as well as the representation were placed
before the Advisory Board.
5. It is contended that the respondents, particularly
the detaining authority, along with the detention order
dated 20.03.2025, did not supply the compilation of
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documents, which were relied upon for passing the
detention order against the husband of the petitioner.
They furnished only the copies of the detention order and
grounds of detention, but did not produce all the relevant
material considered for the purpose of passing the
detention order.
6. It is also contended that the husband of the
petitioner also submitted a representation dated
01.04.2025 requesting for dropping the proposal under the
provisions of the Goonda Act (herein after referred to as
'the Act'), from Bellary Jail. Similarly, the petitioner also
submitted a representation before the Advisory Board
Committee, which was also rejected by respondent No.1.
7. Respondent No.1, without taking into
consideration the mandatory provisions of the Act and
without carefully examining the material on record, passed
the order confirming the detention order passed by
respondent No.2, vide order dated 29.04.2025, thereby
directing the detenue to be kept in detention for a period
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of one year, starting from the order dated 20.03.2025.
The said order is also produced as Annexure-G.
8. It is contended that both Annexures-A and G,
passed by respondent No.1 and 2 are illegal and not
sustainable in the eyes of law and are liable to be set
aside. The petitioner, without any other alternative,
approached this Court by filing this writ petition.
9. The grounds urged in support of the petition are
as follows.
10. It is the first contention that invocation of the
provisions of the Goonda Act against the detenue to keep
him under detention for a period of one year is illegal and
impermissible and the same could be invoked only against
certain classes of persons who are involved in or commit
dangerous activities--such as bootleggers, drug offenders,
gamblers, Goonda, immoral traffic offenders, slum
grabbers, video and audio pirates, etc. It is also contended
that the Act is intended to maintain public order and the
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order for preventive detention can be passed only in
respect of such activities. The person sought to be
detained must strictly squarely fall within the
definition/preview under the Act. Merely because certain
cases are pending or registered against the detenue
cannot be a ground to invoke the provisions of the Act for
passing an order of preventive detention.
11. It is contended that respondents No.3 to 5, being
the authority, without taking into consideration the circular
dated 20.12.2019 issued by the State Government--which
provides guidelines for invoking the provisions of the Act--
have submitted the proposal to respondent No.2 for
detention. The said circular specifically mandates that only
recent cases, preferably not older than 3 to 4 years,
should be given preference. Cases pertaining to personal
enmity should not be considered and particulars as to the
class and rank of the accused/detenu, date of release on
bail should be specifically and mandatorily mentioned.
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12. The detaining authority should carefully peruse
the materials before passing the order, but in the present
case, the respondents have not complied with the
guidelines issued under the said circular while passing the
detention order.
13. It is contended that respondents No.3 to 5 have
not furnished the booklet containing various particulars of
detenue, running into 365 pages. It is alleged that the
authorities willfully and intentionally withheld the same, on
account of which the detenue (i.e., the petitioner's
husband) and petitioner were unaware of the material
collected against him and the contents thereof weighed in
the mind of the detaining authority while passing the order
of preventive detention. The non-supply of those
documents is also contrary to statutory provisions.
14. It is also contended that respondent No.2 has
withheld several pieces of information and other relevant
documents, which would have had a bearing on the mind
of the detaining authority while passing the impugned
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orders. Respondent No.2 has also not furnished the bail
orders, whereby the detenue was enlarged on bail in the
cases registered against him. This has resulted in
suppression of relevant material and non-furnishing of
those orders, vitiates the order of detention.
15. Further, it is contended that the impugned order
passed by respondent No.2 completely lacks application of
mind and has been passed mechanically by State. Merely
referring to the number of cases pending against the
detenue and arriving at a subjective satisfaction without
analyzing each case independently is erroneous. There is
no material to show that there was subjective satisfaction
to pass an order.
16. Another contention is that the impugned order of
preventive detention is totally in violation of Section 10 of
the Act. Respondent No.1 was required to place the case
of the detenue before the Advisory Board within three
weeks and place before it the grounds, under which the
order of detention had to be passed.
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17. It is also contended that respondent No.1 cannot
pass an order of detention for a period of 12 months at
one stretch. As per proviso to Sub-section 2 of Section of
3 of the Goonda Act, the authority, at the first instance,
has to pass an order of detention for a period of 3 months.
Thereafter, if the authority intends to further detain him,
pass order of detention, that to not beyond 3 months, i.e.
after expiry of every three months there must be a fresh
order of detention. Therefore, the impugned order is in
violation of Article 22(5) of the Constitution of India and is
liable to be quashed.
18. It is contended that the respondents, while
invoking the provisions of the Goonda Act, were bound to
follow strict procedure in accordance with law and same
has not been done. It is nothing but, curtailing freedom of
an individual. Hence, the detention order requires
interference by this Court.
19. The learned counsel for the petitioner
vehemently contends that the non-compliance with
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Section 10 of the Goonda Act and the failure to provide
the detenue with an opportunity of being heard within 21
days before the Advisory Board, along with non-furnishing
of documents and grounds of detention, suffers from
remoteness and proximity and also same is not within
definition of the Goonda Act.
20. The counsel also specifically contends that in all
the cases, the detenue was granted bail, but those bail
orders and relevant materials were not produced before
the detaining authority while invoking the provisions of the
Goonda Act and passing the detention order dated
20.03.2025.
21. It is further submitted that the fact that the
detenue in the case of Crime No.18/2025 of Raghavendra
Nagar Police Station, was already released on
04.03.2025--i.e., 15 days prior to the passing of the
preventive detention order--is a material factor that ought
to have been taken into consideration by the detaining
authority, but was ignored, vitiating the entire process.
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22. The counsel also vehemently contend that when
the externment order was passed, the same was also
quashed. Even in spite of that, the respondents have
committed an error in passing the present detention order.
23. In support of his argument, learned counsel for
the petitioner relied upon the judgment of this Court
passed in W.P.H.C. No. 200003/2025 dated 26.03.2025,
wherein the writ petition was allowed and the detention
order as well as the confirmation order were quashed.
24. The counsel, in support of his argument, relied
upon the judgment of Hon'ble Apex Court in the case of
Ameena Begum vs The State Of Telangana and
Others reported in 2023 (9) SCC 587, brought to notice
of this Court paragraph nos.33, 34 and 35, wherein
detailed discussion was made about issue of detention
order, which will lead to address firstly whether the
alleged acts of commission for which the detenue has been
kept under detention are prejudice to public order, and
secondly, whether all relevant circumstances were
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considered or whether any extraneous factors weighed in
the mind of detaining authority, leading to conclusion that
detenue is a habitual offender and for prevention of
further crimes by him, he ought to be detained. It has to
be understood as fundamental imperative, as to how this
Court distinguished between disturbances related to law
and order and disturbances caused to public order.
25. The counsel also relied upon judgment of Hon'ble
Supreme Court in case of Nenavath Bujji etc. & Others
v. State of Telangana & Others (2024 SCC Online SC
367), where the distinction between 'law and order' and
'public order' is clarified. The discussion in paragraph
No.18 is relevant wherein the Hon'ble Court has finalized
the issue involved, including the definition of "Goonda Act"
and also paragraph No.20, wherein an observation is made
that law is well settled that power under any enactment
relating to preventive detention has to be exercised with
due care, caution and restrain. It is also brought to notice
of this Court that in paragraph No.24 regarding essential
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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. The basis of detention is
the satisfaction of the Executive about the likelihood of the
detenue acting in a manner, similar to his past acts, which
is likely to affect adversely the maintenance of public
order, thereby prevent him by an order of detention, from
doing the same. It is also brought to the notice of this
Court that in paragraph No.13 of the said decision, it is
held that it is the duty of the Court to issue writs to
safeguard the freedom of citizens against arbitrary and
illegal detention.
26. Further, the counsel has also relied upon the
judgment reported in 2000 (5) K.L.J. 304 (DB) -
R.Lata v. T. Madiyal and Others, wherein this Court
observed that in case of person, who is on bail at time of
passing detention order, his bail application and bail order
passed thereon are vital documents and same should
necessarily be placed before the detaining authority and
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copies thereof should be supplied to the person against
whom the detention order is passed. Non-compliance with
this requirement would render the detention order illegal
and viod-ab-initio.
27. The counsel also relied upon the judgment
reported in 2006 (4) Kar. L.J. 200 (DB)- Iranna V.
Government of Karnataka, wherein it was held that the
requirement of placing the grounds of detention before the
Advisory Board within 3 weeks from the date of detention
is mandatory and has to be complied with strictly. Non-
compliance with the said requirement would render the
detention order inoperative on expiry of said period.
28. The counsel further relied upon the judgment
reported in 2015 (1) K.L.J. 495 (DB) - Mallikarjun &
Another v. State of Karnataka, wherein in paragraph
No.7 it is observed that if relevant materials have not been
placed before the detaining authority, it amounts to
suppression of relevant material facts and the satisfaction
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of the detaining authority, is to be held as impaired and
vitiated by non-application of mind.
29. Counsel also relied upon the judgment reported
in 2015 (6) Kar. L.J.337 (DB).- Smt. Kalavati V.
State. The counsel relying upon this judgment would
vehemently contend that in this judgment it is held that
except one offence referred to in the order of detention, all
other cases suffer from remoteness and want of proximity
to the order of detention. Hence, the detention cannot be
sustained and is liable to be set aside.
30. The counsel also relied upon the judgment of this
Court dated 31st August 2023 in Smt.Shrenika vs. State of
Karnataka, passed in W.P. No. 201957/2023, wherein also
the writ petition was allowed and both the order of
detention as well as the confirmation order were quashed.
31. Per contra, the counsel appearing for the State
would vehemently contend that it is not in dispute that the
husband of the petitioner is a rowdy sheeter and that the
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rowdy sheet was opened in the year 2013 itself. The
counsel brought to the notice of this Court in the
statement of objections filed by State that respondent
no.2 took note of materials collected by respondent Nos.3
to 5, who submitted the proposal, while passing the
detention order.
32. The counsel further submits against detenue that
totally 23 cases were registered, particularly the cases
registered under IPC offences are 10 and 2 cases under
BNS and 11 are under Section 107 and 110 (G) of Cr.P.C,
including offence under Section 376 (rape) in Crime
No.120/2023. There are seven other cases under Section
307 of IPC. All these cases involve heinous offences,
involving his six accomplices and out of that, two of the
them are family members. The family also has a criminal
background. The counsel also contends that those cases
range from the year 2010 till the recommendation. Based
on this, it is contended that there was a big threat to
public order tranquility in the city. The detenue is a regular
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and habitual offender and has been creating fear in the
minds of the general public. The counsel also relied upon
the copy of the rowdy sheet marked as Annexure-R1.
33. The counsel further submits that the detenue has
been reprimanded and bound over for 11 times, but in
vein, he has paid a fine of Rs.30,000 in Crime No.80/2024
of R.G. Nagar, P.S., for violating or floating the bail bond
conditions, which is at Annexure-R2. The counsel also
contends that considering all these materials, the authority
has rightly invoked Section 3 (1) of Goonda Act.
34. The counsel further contends that on
10.10.2024, respondent No.3 has passed an order of
externment to Bhagamandala P.S., Kodagu District.
However, the detenue absconded and did not report to the
said police station. Therefore, Bhagamandala P.S. has
dispatched detailed absconding report to respondent No.3
as per Annexure-R3. Hence, the authorities has taken note
of illegal acts of husband of petitioner.
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35. The counsel also vehemently contends that the
entire file/ booklet containing about 400 pages was issued
to the detenue on 20.03.2025 under a receipt of detenue
by respondent No.5. The photographs of handing over the
booklet by respondent No.5 and also a pen drive are
produced as Annexure-R4 and R5. The counsel
vehemently contends that no information was withheld.
The entire booklet given to the detenue may be called for
from the detenue.
36. The counsel vehemently contends that the
judgments relied upon by the petitioner are not applicable
to the facts of the case of hand. Merely because in some of
the cases, the detenue was acquitted, cannot be a ground
that detention order cannot be passed. The acquittals were
only due to threats to witnesses and allegations that
documents are not placed on record cannot be accepted.
Respondent No.2 has immediately transmitted a copy of
the order at Annexure-A, to Respondent No.1 and so also,
the allegation that not placing of order before the Advisory
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Board is also erroneous and order of confirmation was
passed on 29.04.2025. Annexures-R6 and R7 clearly
disclose having furnished the documents and respondents
have taken note of overall behavior of detenue holistically
and passed the detailed order.
37. The counsel further submits that on 11.04.2025,
respondent No.1 issued a notice to the detenue to be
present for enquiry on 15.04.2025 before the Advisory
Board. The detenue attended through video conferencing
from Ballari Central Jail and along with his wife attending
physically, before Advisory Board. The objections were
submitted and the same is produced as Annexures-R8 and
R9. The counsel finally contends that the detention order
translated into English language and Kannada language
was also furnished as per Annexures-R10 and R11. Hence,
he cannot escape and take shelter under the excuse that
he is not able to speak Kannada. The detenue cannot be
given doubt of benefit of alleged delay. It is submitted that
every opportunity was extended to the detenue as well as
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to his wife. The Advisory Board after providing sufficient
opportunity, gave it's opinion and State passed the order
dated 29.04.2025 as per Annexure-R12.
38. The learned counsel, in support of his
submission, relied upon the judgment of the Hon'ble Apex
Court in the case of SLP (Crl.) No. 9492/2023, wherein
Hon'ble Apex Court allowed said SLP and set aside the
order of Division Bench of High Court of Andra Pradesh
W.P.No.33638/2022. The counsel brought to notice of the
discussion made in the judgment in paragraph No.5
regarding the contentions raised by the appellant and the
submissions on behalf of the respondent and brought to
notice of this Court that essential concept of preventive
detention was discussed in paragraph Nos.16, 92, so also
several judgments were discussed. He particularly brought
to notice of this Court paragraph No.42 in respect of
Article 22(4)(a) of the Constitution of India. Counsel also
brought to the notice of this Court, detailed discussion
made by paragraph No.43 and 44. So also discussion
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made with regard to law and order and public order in
paragraph nos.53 to 65 and contend that said judgment is
squarely applicable to case on hand.
39. Further, the counsel brought to notice of the
Annexure-R14/judgment of the Division Bench of this
Court in W.P.H.C. No. 200006/2022, wherein it was
observed that "we do not find any infirmity in the
procedure followed by the respondents in keeping the
detenue under detention under the Act." The counsel also
brought to notice of this Court the judgment of Hon'ble
Supreme Court in case of Haradhan Saha & Another v.
State of West Bengal & Others, reported in 1974 AIR
2154, wherein discussion is made that the scope of
judicial review in preventive detention cases, confining
Courts to assess procedural compliance and mala fide
intent rather than questioning the subjective satisfaction
of the detaining authority, wherein also discussion was
made regarding public order and law and order and
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provided framework for assessing scope of preventive
detention.
40. The learned counsel further relied upon the
decision reported in Union of India v. Dimple Happy
Dhakad reported in AIR 2019 SC 3428, and brought to
the notice of this Court to paragraph No. 41, where it is
held that an order of detention, it is trite law that an order
of detention is not curative or reformative or punitive
action, but a preventive action, avowed object of which is
to prevent anti-social and subversive elements from
imperiling the welfare of the country or security of the
nation. He brought to notice of this Court paragraph
No.43, where a detailed discussion was made.
41. Counsel also relied upon judgment in the case of
Pesala Nookaraju V. The Government of Andhra
Pradesh and Ors. reported in 2023 SCC Online SC
1003, and vehemently contend that a detailed discussion
was made in the judgment that requirement of passing
detention order from time to time in the manner referred
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has got its own significance, particularly, considering the
Article 22(4). A detailed discussion was also made
regarding importance of maintenance of public order in
passing a detention order, and the distinction between
'public order' and 'law and order' has been clearly defined
by the Constitution Bench in the case of Dr. Ram
Manohar Lohia v. State of Bihar and Others reported
in (1966) 1 SCR 709, which is discussed in paragraph
No. 55 of the said judgment.
42. The learned counsel also brought to the notice of
this Court the discussion made in paragraph Nos. 70,
wherein the case of Piyush Krantilal Mehta was also
discussed, particularly in paragraph No.71 stating that not
only that detaining authority has to record its satisfaction,
that it is necessary to prevent detenue from indulging in
such activities and this satisfaction has to be arrived at
based on credible material on record.
43. The learned counsel also relied upon the order
passed in W.P.H.C. No. 37/2025 by this Court, dated
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26.06.2025, in the case of Smt. Roopa v. State of
Karnataka, wherein also a detailed discussion was made
by Division Bench, particularly with regard to Section 12 of
the Act i.e. action upon report of the Advisory Board,
wherein also held that they do not find any reason to hold
that the order passed by government and detention
authority is illegal and contrary to law.
44. In support of his submission, counsel made list
of synopsis and dates. The records show that the
Raghavendra Nagar Police Station Inspector submitted a
report to the Commissioner of Police, Kalaburagi City along
with records through Assistance Commissioner of Police,
Kalaburagi on 05.02.2025. Based on the said report, the
Assistant Commissioner of Police, Kalaburagi has
recommended report to the Deputy Commissioner of Police
(Law and Order), Kalaburagi on 15.02.2025. The Deputy
Commissioner of Police endorsed the same to the
Commissioner of Police, Kalaburagi on 18.02.2025.
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45. Thereafter, the Commissioner of Police,
Kalaburagi passed detention on 20.03.2025. A copy of the
said order was also forwarded to the Secretary to
Government, Home Department (Law and Order), who
passed the confirmation order dated 29.04.2025. The
Deputy Secretary to Government, Home Department (Law
and Order), placed the detention order before the Advisory
Board on 28.03.2025.
46. The learned counsel contends that the very
contention that within 21 days the same was not placed
before the Advisory Board cannot be accepted. The
counsel also produced the records before the Court,
having furnished the details on 28.03.2025 before the
Advisory Board. Counsel also contended that the
representation was given on 01.04.2025 by the detenue
himself and the Commissioner of Police, Kalaburagi gave
objection to the Under Secretary to Govt., Department of
Home, Bengaluru on 02.04.2025. On 04.04.2025, Under
Secretary to Govt., issued an endorsement rejecting
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representation, which was served on detenue on
08.04.2025.
47. The Advisory Board fixed the hearing date as
15.04.2025 and notice was issued on 11.04.2025. The
proceedings of the Advisory Board clearly disclose that an
opportunity was afforded to the detenue and the Advisory
Board gave its opinion on 17.04.2025. Based on that, the
report was submitted to the Government and the Under
Secretary to Government, Home Department, passed the
order confirming the detention order by the Advisory
Board on 29.04.2025 and complied all procedure. Hence, it
does not require any interference of this Court.
48. Having heard the learned counsel for the
petitioner and the learned counsel for the respondents,
and upon perusal of the material available on record and
the principles laid down in the judgments cited supra, the
points that arise for consideration before this Court are:
"i) Whether the order passed by respondent No. 2,
detaining the petitioner vide Annexure-A, and the
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confirmation order passed by respondent No. 1 as
per Annexure-G are sustainable in the eye of law?
ii) What order?"
49. Having heard the respective counsel and
principles laid down in the judgments referred supra, the
Court has to consider material available on record. Before
considering material available on record, this Court would
like to extract the very proviso of the Goonda Act.
50. Section 2 of the Act, 1986, which came into force
from 28.02.1986, reads thus:
"Section 2.- Definitions
In this Act, unless the context otherwise requires, -(a)
"acting in any manner prejudicial to the maintenance of
public order" means when a boot-legger, a dacoit, a drug-
offender, a goonda, an immoral traffic offender or a
landgrabber is engaged or is making preparations for
engaging, in any of his activities as such, which affect
adversely, or are likely to affect adversely, the
maintenance of public order:
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 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;"
(Emphasis supplied)
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51. Section 3, is in respect of power to make order
detaining certain persons, which reads thus:
"Section 3. Power to make orders detaining certain persons:-
(1) The Government may, if satisfied with respect to any
bootlegger, dacoit, drug-offender, goonda, immoral traffic
offender or land-grabber that with a view to preventing him
from acting in any manner prejudicial to the maintenance of
public order, it is necessary so to do, make an order directing
that such person be detained.
(2) If, having regard to the circumstances prevailing or likely
to prevail in any area within the local limits of the jurisdiction
of a District Magistrate or a Commissioner of Police, the
Government are satisfied that it is necessary so to do, they
may, by order in writing, direct that during such period as may
be specified in the order, such District Magistrate or
Commissioner of Police may also, if satisfied as provided in
sub-section (1), exercise the powers conferred by the said
sub-section:
Provided that the period specified in the order made by the
Government under this sub-section shall not in the first
instance, exceed three months, but the Government may, if
satisfied as aforesaid that it is necessary so to do, amend such
order to extend such period from time to time by any period
not exceeding three months at any one time.
(3) When any order is made under this section by an officer
mentioned in sub-section (2), he shall forthwith report the fact
to the Government together with the grounds on which the
order has been made and such other particulars as in his
opinion, have a bearing on the matter, and no such order shall
remain in force for more than twelve days after the making
thereof, unless, in the meantime, it has been approved by the
Government.
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52. Section 12 of the Act provides for action upon
the report of the Advisory Board, which reads thus:
"Section 12. Action upon report of Advisory Board: -
(1) In any case where the Advisory Board has
reported that there is, in its opinion, sufficient cause
for the detention of a person, the Government may
confirm the detention order and continue the
detention of the person concerned for such period, not
exceeding the maximum period specified in Section 13
as they think fit.
(2) In any case where the Advisory Board has
reported that there is, in its opinion, no sufficient
cause for the detention of the person concerned, the
Government shall revoke the detention order and
cause the person to be released forthwith."
53. Section 13 of the Act, provides for the maximum
period of detention, which reads thus:
"Section 13. Maximum period of detention: - The
maximum period for which any person may be
detained, in pursuance of any detention order made
under this Act which has been confirmed under
section 12, shall be twelve months from the date of
detention."
(Emphasis supplied)
54. Having considered the proviso referred supra,
this Court has to take note of the material on record and
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also the essential requirement of concept of preventive
detention.
Essential Requirement of Concept of Preventive
Detention:
55. Before considering the material on record, the
Court has to take note of the essential requirement of
concept of preventive detention. The fact that detention of
a person is not to punish for the act he has done, but to
prevent him from doing a similar act in the future, which
may cause public tranquility. The basis for detention is
also to the subjective satisfaction of the executive, based
on a reasonable probability of the likelihood of the detenue
continuing similar acts as committed earlier and to take
note of past acts. The purpose of passing such an order of
detention is to prevent him from committing similar acts
that are going to affect society at large. There is no
parallel between the prosecution in a Court of law and a
detention order under the Act of 1986. A preventive
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detention order is not for any criminal conviction for acts
done earlier, but only a primitive action to avoid him
causing such acts in future.
56. The power of preventive detention is qualitatively
different from punitive detention and the same is a
precautionary power to be exercised based on a
reasonable anticipation that the detenue may commit such
offences. It cannot be a parallel proceedings and same
does not overlap any prosecution of acts already
committed. An order of preventive detention may be made
before or during prosecution also and the same with or
even without prosecution, in anticipation or even after
discharge or acquittal.
57. It is also very clear that pendency of prosecution
does not bar to passing of an order of preventive
detention, as held in the judgment of the Hon'ble Apex
Court in the case of Haradhan Saha (supra).
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58. The Court also has a duty to issue the writ to
safeguard the freedom of citizens against any arbitrary
action taken to keep a person in illegal detention, by
exercising the extraordinary remedy available to a citizen
under Article 226 or Article 32 of the Constitution of India.
59. The habeas corpus is a remedy designed to
facilitate the release of persons, who have been detained
unlawfully and not to punish the person detaining. While
exercising the writ of habeas corpus, the Court can cause
any person who is imprisoned to be brought before it and
get the knowledge of the reasons, as to why he is
imprisoned. The habeas corpus remedy is available against
any person suspected of detaining another unlawfully and
not merely against the police or other public officers,
whose duties normally include arrest and detention. The
Court must examine such cases and also determine
whether there was any legal cause for the detention. If the
Court concludes that there was no legal cause for
detention, the Court can exercise its powers or otherwise
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fundamental rights of a citizen under Article 21 of the
Constitution of India gets jeopardized, which guarantees
protection of life and personal liberty.
60. Having considered the concept of preventive
detention in its essential format and the remedy provided
to a person who has been detained, this Court has to
examine the material on record.
Grounds for Challenging the Preventive Detention:
61. The first and foremost contention of the
petitioner in the writ petition is that Section 10 of the Act
provides to examine whether there are any violation of
provisions of the Act and in terms of Section 10,
respondent No.2 has to place a person under detention
before the Advisory Board within three weeks, along with
the grounds on which the order of detention is passed. The
learned counsel for the petitioner vehemently contend that
the same was not done and that all materials were not
placed within 21 days before the Advisory Board.
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62. The Government Advocate as against this
ground, brought to the notice of this Court the list of
events and synopsis filed by the respondent - State and
particularly brought to the notice of this Court that the
Deputy Secretary to Government, Home Department, Law
and Order, placed the detention order with records before
the Advisory Board on 28.03.2025 and hence, the first
contention that the material was not placed before the
Advisory Board within 21 days as contemplated under
Section 10 of the Act, cannot be accepted and there is
compliance of placing of the detention order before the
Advisory Board within a span of 8 days, as the order of
preventive detention order was passed on 20.03.2025.
The material also discloses that the Advisory Board fixed
the date of hearing on 15.04.2025 vide decision taken on
11.04.2025 itself. The police notice was intimated to the
petitioner herein by name Shaziya and the detenue. It is
clear that the proceedings of the Advisory Board consisting
the Chairman and Members, conducted hearing and
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further provided an opportunity to the said petitioner and
detenue through video conference appeared on
15.04.2025 and the Advisory Board given the opinion
about the detenue on 17.04.2025.
63. It is very clear from all these procedures that
after passing of preventive detention order, compliance
was made and after giving an opportunity only, the
confirmation order was passed on 29.04.2025. It is also
important to note that the opinion of the Advisory Board
was also submitted to the Government on 25.04.2025
itself and the same was considered while confirming the
preventive detention order. Hence, the first ground urged
by the petitioner's counsel will not comes to the aid of
petitioner.
64. The second ground urged by the counsel
appearing before this Court is that, the documents are not
placed before passing the preventive order and without
supplying of documents to the detenue, an order was
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passed. Hence, the order of prevention of detention is not
sustainable in the eye of law.
65. Having considered this ground and while passing
an order on 20.03.2025 as per Annexure-A, it is taken
note that the petitioner started criminal activities from the
year 2010, when he picked up quarrel with one Awez
Junaidi while playing cricket and beaten him with the
cricket bat on his left hand and stomach causing him
grievous injuries and at that time when one Gous Baba
tried to intervene, he had also beaten him with the cricket
bat on his buttock and threatened him for life. Hence,
crime was registered in Crime No.63/2010 for the offences
punishable under Sections 323, 324, 504, 506 read with
Section 34 of IPC for the first time against the detenue.
The criminal activities of the petitioner has been started at
the age of 20 and he was also registered with rowdy-sheet
in the year 2013 as per Annexure-R1. It is also important
to note that 12 cases are registered against him under
IPC, so also cases are registered under BNS and Cr.P.C.
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also. The same is extracted in the preventive detention
order. The table showing the cases registered against him
reads as follows:
Sl. Police Cr.No. and Date of Present status of
No. Station Provision of report the case
law
1. Ashok 63/2010 18.06.2010 CC No.3775/2010
Nagar U/Sec.323, acquitted after trial
324, 504, 506 at V Addl. JMFC
R/w 34 IPC Court Kalaburagi
on 18.02.2012.
You are A-1 in the
matter.
2. RG Nagar 10/2011 23.12.2011 SC No.248/2013
U/Sec.147, acquitted after trial
148, 341, at I Addl. Sessions
307, 506 r/w Judge Kalaburagi
149 IPC on 13.04.2014.
You are A-1 in the
matter.
3. RG Nagar 201/2017 23.10.2011 CC No.68088/2017
U/Sec.323, acquitted after trial
324, 341, at II Addl. JMFC
504, 506 r/w Court Kalaburagi
34 IPC on 26.06.2018.
You are A-1 in the
matter.
4. RG Nagar 133/2018 08.08.2018 SC No.36/2020
U/Sec.143, acquitted after trial
147, 148, at III Addl.
341, 323, Sessions Judge
324, 307, Kalaburagi on
504, 506 r/w 16.08.2021.
149 IPC You are A-3 in the
matter.
5. RG Nagar 135/2018 08.08.2018 SC No.157/2019
U/Sec. 109, acquitted after
427, 307, enquiry at Prl.
504, 506 r/w Sessions Judge
34 IPC Kalaburagi on
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21.02.2022.
You are A-2 in the
matter.
6. Ashok 22/2020 04.05.2020 CC No.5512/2020
Nagar U/Sec. 143, pending trial at Prl.
147, 149, JMFC Court
188, 269, 270 Kalaburagi, Next
IPC date of hearing:
21.04.2025.
You are A-3 in the
matter.
7. RG Nagar 38/2022 13.04.2023 SC No.370/2023
U/Sec.143, acquitted after
147, 148, enquiry at III Addl.
341, 323, Sessions Judge,
324, 307, Kalaburagi on
509, 504, 506 27.09.2024.
r/w 149 IPC You are A-1 in the
matter.
8. Station 01/2023 04.01.2023 SC No.352/2023,
Bazar U/Sec.114, Pending trial at
323, 324, Sessions Judge,
341, 307, Kalaburagi, Next
504, 506 r/w Date of hearing:
34 IPC 03.04.2025.
You are A-2 in the
matter.
9. MB Nagar 129/2023 19.10.2023 CC.No.11124/2023,
U/Sec. 323, Pending trial at II
376, 506 r/w Addl. JMFC Court,
34 IPC Kalaburagi, Next
date of hearing:
26.05.2025.
You are A-1 in the
matter.
10. RG Nagar 80/2024 25.06.2024 CC.No.386/2023,
U/Sec.143, pending for trial at
147, 148, II Addl. JMFC Court
341, 323, Kalaburagi, Next
324, 307, date of hearing:
504, 506 r/w 09.04.2025.
149 IPC You are A-1 in the
matter.
11. RG Nagar 162/2024 30.12.2024 Charge sheet
U/Sec.223 pending for
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BNS Act-23 scrutiny before APP
12. RG Nagar 18/2025 09.02.2024 The case is still
U/Sec.115(2), under investigation
118(1), 109,
352, 351(2)
r/w 3(5) BNS
Act-23
Details regarding Cr.P.C. cases
Sl. Police Date of Cr.No. and Present status of
No. Station report Provision of the case
law
1. RG Nagar 01.09.2016 146/2016 Bound over
U/S.107 Cr.P.C.
2. RG Nagar 26.10.2017 203/2017 Bound over
U/S.107 Cr.P.C.
3. RG Nagar 24.03.2018 64/2018 Bound over
U/S.107 Cr.P.C.
4. RG Nagar 08.02.2019 15/2019 Bound over
U/S.110 (E&G)
Cr.P.C.
5. RG Nagar 10.11.2019 95/2019 Bound over
U/S.107 Cr.P.C.
6. Ashok 27.11.2020 24/2020 Bound over on
Nagar U/S.107 Cr.P.C. 27.11.2020
7. RG Nagar 17.07.2021 14/2021 Bound over on
U/S.107 Cr.P.C. 28.07.2021
8. Station 22.05.2022 20/2022 Bound over on
Bazar U/S.107 Cr.P.C. 15.06.2022
9. MB Nagar 02.07.2022 42/2022 Bound over on
U/S.107 Cr.P.C. 30.08.2022
10. RG Nagar 08.02.2023 2/2023 Bound over on
U/S.107 Cr.P.C. 20.03.2023
11. RG Nagar 13.03.2024 92/2024 Bound over on
U/S.107 Cr.P.C. 20.03.2024. Bond
forfeited on
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11.09.2024 due to
registration of
Cr.No.80/2024
U/Sec.143, 147,
148, 341, 323,
324, 307, 504,
506 r/w 149 IPC.
Fine of
Rs.30,000/-
imposed on you
due to floating
terms and
conditions of the
bond.
66. The very ground that no documents were
furnished prior to the preventive detention order, the
respondent - Government Advocate placed on record the
details for having supplied all the documents to the
detenue and the list of events. It is clear that the
documents with book containing 365 + 35 pages in total
400 pages was supplied to the detenue on 20.03.2025
itself. To evidence the said fact, the learned Government
Advocate relies upon the documents i.e., Annexures-R4
and R5 - photographs which clearly disclose that all the
particulars are furnished to the detenue along with booklet
and not as contended only grounds for detention. Hence,
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the contention of the petitioner cannot be accepted that
documents are not supplied. Photograph clearly depicts
that entire documents are supplied in spiral binding.
67. The third ground urged by the petitioner before
the Court is that, grounds which are invoked by the
authority suffers from remoteness and proximate cause for
passing such an order. The counsel for petitioner in
support of his argument relied upon the judgment of this
Court passed in the case of Mallikarjun and another
(supra), contending that the Division Bench of this Court
in paragraph No.7 discussed in detail that, if the relevant
materials have not been placed before the detaining
authority, it amounts to suppression of relevant materials
and satisfaction of detaining authority, is to be held
impaired and vitiated by non-application of mind. No
doubt in paragraph No.7 it was discussed that, out of 16
cases he was acquitted in 14 cases and only 2 cases are
pending against the detenue and he has been released on
bail. The Bench further observed that in the order of
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detention, we do not find any reference to the orders
passed by the competent Court enlarged the detenue on
bail in these two criminal cases.
68. Having considered the discussion made in
paragraph No.7, this Court has to analyse whether factual
aspects of the said case are similar to the present case. It
has to be noted that while passing the preventive
detention order, grounds of detention has been stated and
also it is specifically mentioned in the order itself that he
was born on 26.06.1990 and he is having a wife and
children and he lives in a joint family. A reference was
made that, at the age of 20, he has started criminal
activities by forming his own criminal gang and got
involved in all sorts of goonda activities like wielding
machetes and swords in public places, picking quarrels
without any reason, abusing in filthy language, grievously
hurting, attempt to murder, forming unlawful assembly for
arson, threat to life etc. Hence, it is taken note that the
society at large is under constant fear due to his activities
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and there were 23 cases registered against him, not only
registered under the IPC, but also under new enactment of
BNS-2023 for causing voluntary hurt, attempt to murder,
disobeying the order of the public servant, intentional
provocation and insult to disturb peace and tranquility and
so also cases are registered under Section 107 of Cr.P.C.
Apart from that, he had also indulged in the offences
against the women, subjecting women under threat for
sexual act that is outraging the modesty of women and
confining them to house and having forcible intercourse
with the victim, along with his accomplices. It is nothing
but committing an offence against women, creating fear in
the mind of victim. Hence, the judgment relied upon by
the counsel for the petitioner will not comes to the aid of
factual aspects of the case on hand and in the present
case only in six cases he was acquitted on benefit of doubt
for lack of evidence for prosecution out of 12 cases.
69. The counsel for the petitioner referred the case
of Smt. R. Latha (supra), wherein it is held that in the
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case of person who is on bail at the time of passing
detention order, his bail application and bail order passed
thereon are vital documents and same should necessarily
be placed before detaining authority and copies thereon
should be supplied to the person against whom detention
order is passed and non-compliance with requirement
would render detention order illegal and void ab-initio.
70. We have already pointed out that for having
supplied the documents, photographs are produced before
the Court as per Annexure-R5, as well as the very
documents are also placed before this Court by the
petitioner's counsel himself on 17.06.2025 along with
memo. The very documents which are supplied to the
detenue, are placed before this Court and hence, it is clear
that all the documents have been supplied to the detenue,
so also all these materials were also placed before the
Authority before passing the preventive detention order.
Mere granting of bail itself cannot be a ground to non-
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consideration of passing a preventive detention order. The
essential requirements are discussed in detail above.
71. Having perused the preventive detention order,
wherein specifically stated the grounds of detention and
number of cases registered against the detenue in the
table. Even under Cr.P.C., 11 cases are registered against
the detenue invoking Sections 107 and 110. While passing
the order, reasons are set out that the prime reasons for
his arrest under the Goonda Act. The specific reason is
given in ground No.1 that he is a prime accused in a rape
case that is outraging the modesty of a woman and also
violating of the Government Order by causing voluntary
injuries to public causing a constant fear, panic and
insecurity in the mind of the public at large in kalaburagi
city and overall he is involved in 12 IPC cases, but he was
acquitted in 6 cases only and the remaining cases are
pending. Apart from that he was a rowdy-sheeter and the
same was opened on 31.10.2013 itself and the rowdy
sheet is even still continued. It is stated that he used to
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form an unlawful assembly and involved in illegal activities
in Kalabuargi City like assaulting with dangerous weapons,
causing grievous injuries and also attempted to murder.
72. It is also taken note of that he is a habitual
offender in many criminal cases and he continued criminal
activates from 2010 to 2025 and also he is causing
disturbance in public order and threat public order. Even in
the reasons set out in paragraph No.7 of the preventive
detention order, it is specifically mentioned that he had
indulged in disturbing peace and tranquility for which
crime under Section 107 of Cr.P.C. was also registered.
He promised of decent behavior for a year, before the
Court of Special Executive Magistrate, but has violated the
same. Hence, on account of violation of the terms and
conditions of the said bond, an enquiry was held and an
order was passed imposing fine of Rs.30,000. Hence, it is
taken note of the conduct of the detenue disregarding the
order. Even in spite of execution of bond, he did not
comply with the same.
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73. It is also important to note that an externment
order was also passed and no doubt, the counsel
appearing for the petitioner brought to notice of this Court
that the said order was quashed by this Court. But, the
fact is that an order was passed invoking Section 55 of the
Karnataka Police Act, 1963 and he had been exterened
from the jurisdiction of Kalaburagi City to Kodagu District
for a period of one year i.e., from 10.10.2024 to
09.10.2025. Though, the detenue appeared before the
concerned jurisdictional police, he escaped from the said
limits and was absent from the limits of the said police
station. It is further stated that he went in hiding and
started residing at Kalaburagi City in gross violation of the
order of the police and hence, on the basis of the same
also one more complaint was registered against him and
case was registered, but was quashed subsequently.
74. The very conduct of the detenue was taken note
of by the detaining authorities and the Government. He
has violated the Government Order and preventing the
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public servant from discharging their duties as discussed
above. All these facts are taken note of and the prime
reasons for his detention under the Goonda Act is also set
out in the order. Hence, the judgment of this Court
referred supra, will not comes to the aid of the petitioner,
since all materials were supplied to him and also before
the Authority.
75. The counsel in support of his argument with
regard to the remoteness is concerned, relied upon the
judgment in the case of Smt. Kalavathi (supra). No doubt
in this judgment, the Division Bench of this Court held that
except one offence referred to in the order of detention, all
other cases suffer from remoteness and want of proximity
to the order of detention. Hence, detention cannot be
sustained and is liable to be set aside. No doubt, while
passing such an order also, a discussion was made that
out of 22 criminal cases, the detenue is acquitted in 12
cases and he is enlarged on bail in remaining 10 cases.
Except one offence referred to in the order of detention, all
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other cases suffer from remoteness and want of proximity
to the order of detention. This judgment also will not
comes to the aid of the petitioner, since the detenue has
indulged in not only causing hurt, but also involved in
committing the offence of attempt to murder and also
involved in committing sexual act along with his other
accomplices. Though the counsel for the petitioner brought
to the notice of this Court that, in the case under Section
376 of IPC, the detenue was arrayed as accused No.2, but
the fact that causing life threat, detaining the victim in the
house and subjected her to sexual act along with his
accomplices, is a grave offence against women by creating
fear in her mind and hence, the judgment relied on by the
petitioner will not comes to the aid of the petitioner.
76. Now coming to the aspect of issue of "law and
order" and "public order", the counsel in support of his
argument, has relied upon two judgments. Referring the
first judgment in the case of Smt. Ameena Begum
(supra), the counsel has particularly brought to notice the
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paragraph Nos.34, 33 and 35, wherein discussion is made
with regard to the issues in the detention order, which
need to address first, whether the alleged acts of
commission for which the detenue has been kept under
detention are prejudicial to the public order and secondly,
whether all relevant circumstances were considered or
whether extraneous factors weighed in the mind of the
detaining authority leading to the conclusion that the
detenue is a habitual offender and for prevention of
further crimes by him. In paragraph No.35, discussion was
made with regard to understanding of fundamental
imperative as to how the Court has distinguished between
disturbances relatable to law and order and disturbances
caused to public order and in paragraph No.36, it is
discussed about the same. The Court also relied upon
paragraph No.38, wherein discussion was made by
referring the judgment in the case of Arun Ghosh Vs.
State of West Bengal reported in (1970) 1 SCC 98. It
is specifically stated that for an act to qualify as a
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disturbance to public order, the specific activity must have
an impact on the broader community or the general public
evoking feelings of fear, panic, or insecurity. Not every
case of a general disturbance to public tranquility affects
the public order and the question to be asked, as
articulated and does it lead to disturbance of the current
life of the community so as to amount a disturbance of the
public order or does it affect nearly an individual leaving
the tranquility of the society undisturbed.
77. The other judgment relied upon by the counsel in
the case of Nenavath Bujji (supra), wherein the Apex
Court has discussed with regard to Section 2(g) of the
Goonda Act, 1986, defined in paragraph No.18 and also
discussed in detail in paragraph No.20 that law is well
settled that the power under any enactment relating to
preventive detention has to be exercised with great care,
caution and restraint. The counsel has also brought to the
notice of this Court the paragraph No.24 that the essential
concept of preventive detention is that the detention of a
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person is not to punish him for something he has done but
to prevent him from doing it.
78. This Court also would like to discuss with regard
to the law and order and public order causing the
disturbance to the public order in keeping the provisions
under Section 3 of the Act, power to make orders
detaining certain persons and also Section 12 and 13 of
the Act and analysed the material on records.
79. To take note of constitutional provisions under
Article 22(4)(a) of the Constitution which is relatable to
the initial period of detention, a distinction was made with
regard to public order and law and order in the
Constitutional Bench in the case of Dr. Ram Manohar
Lohia (supra) that, does the expression "public order"
take in every kind of disorder or only some? The answer
to this serves to distinguish "public order" from "law and
order" because the latter undoubtedly takes in all of them.
Public order if disturbed, must lead to public disorder.
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80. This Court would also like to rely upon the
judgment of the Apex Court in the case of Arun Ghosh
(supra), where an occasion arisen to consider the public
order and law and order, an observation is made that
public order was said to embrace more of the community
than law and order. Public order is the even tempo of the
life of the community taking the country as a whole or
even a specified locality. Disturbance of public order is to
be distinguished from acts directed against individuals
which do not disturb the society to the extent of causing a
general disturbance of public tranquility.
81. This Court would also like to rely upon the
judgment in the case of Pushkar Mukherjee and others
Vs. The State of West Bengal reported in AIR 1970 SC
852, while discussing the same, it is taken note of that
considering the material elements of crime, the historic
tests which each community applies are intrinsic
wrongfulness and social expediency which are the two
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most important factors which have led to the designation
of certain conduct as criminal.
82. This Court would also like to rely upon the
judgment of the Apex Court in the case of Dipak Bose
alias Naripada Vs. State of West Bengal reported in
(1973) 4 SCC 43, wherein while discussing with regard to
the law and order and public order, it is stated that every
assault in a public place like a public road and terminating
in the death of a victim is likely to cause horror and even
panic and terror in those who are the spectators. But that
does not mean that all of such incidents do necessarily
cause disturbance or dislocation of the community life of
the localities in which they are committed. If such an act
is committed creating horror in the mind of the general
public, it attracts public order.
83. The true distinction between the areas of public
order and law and order is also discussed in the judgment
of the Apex Court in the case of Ashok Kumar Vs. Delhi
Administration and others reported in (1982) 2 SCC
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403, particularly in paragraph No.13, it is held that, Court
has to see that the degree and extent of its reach upon
society. It is the potentiality of the act to disturb the even
tempo of the life of the community which makes it
prejudicial to the maintenance of public order.
84. Having considered the principles laid down in the
judgments referred by the counsel appearing for the
petitioner as well as the judgments which have been relied
upon by this Court, the Court has to take note of the
material on record. Having perused the material on record
in the present case on hand, we have already pointed out
that the detenue has started his criminal activities at the
age of 20, in the year 2010 and the same was continued
till the date of passing of preventive detention order. It is
also very specific in the order that he indulged in
committing the offences punishable under IPC as well as
BNS, 2023, so also Cr.P.C. Particularly, he had indulged in
all sorts of goonda activities like wielding machetes and
swords in public places, picking quarrels without any
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reason, abusing in filthy language, causing grievous
hurting, attempting to murder, forming unlawful assembly
for arson, threat to life to the society at large and also
committing forcible sexual act on women along with other
accomplices. These reasons are also stated while passing
the order of detention and when such being the case, it is
nothing but not, only law and order but also the public
order disturbance. The act of detenue affecting society at
large and community. Hence, the judgments which the
petitioner has relied upon will not come to the aid of him
to set aside the order of detention.
85. The other grounds urged before this Court that,
the preventive order will not attract the definition of
Goonda Act and no doubt the Court has to examine
whether it comes within the definition of 'Goonda'. This
Court would like to refer the definition of 'Goonda'. Having
perused Section 2(g) of the Goonda Act, 1986, it defines
the term 'goonda' means a person who either by himself
or as a member of or leader of a gang, habitually commits
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or attempts to commit or abets the commission of offences
punishable under Chapter XVI or Chapter XVII or
Chapter XXII of the Indian Penal Code. Having read this
definition and also considering the reasons assigned in the
detention order, it is very clear that the detenue has
indulged in committing the offence, creating fear in the
mind of the general public in the street as well as
committing the offence against women that to a sexual act
along with his accomplices as leader of gang and
habitually committing offences like attempt to murder and
marshality with deadly weapons in the locality with his
gang. When such materials are collected and the same are
extracted in the preventive detention order, we do not find
any ground to set aside the order as sought in the
petition.
86. The other ground urged by the petitioner is that
with regard to the period of detention order is concerned.
No doubt it is contended that while invoking the provisions
like Goonda Act which is draconian in nature are expected
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to act strictly in accordance of the provisions of the act
and also to see that freedom of individual is not curtailed.
No doubt the mere pending of number of cases is not a
ground to pass such an order.
87. The counsel for the petitioner vehemently
contends that in all the cases against the detenue, bail
was granted and he has not violated the bail conditions. It
is also contended that if there are grievances, to seek for
cancellation of bail. No doubt mere involvement in some
crimes does not lead to public order. The court has to take
note of the fact that there is a protection under the
Constitution, freedom of an individual and also it is
contended that passing of prevention order for 12 months
at a stretch is violating of the fundamental right. The
order of detention for 12 months is being contrary to the
principles laid down in the judgment in the case of
Smt. Veena Vs. State of Karnataka and others
reported in 2015 (6) KLJ 74.
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88. Having considered this ground also, the detailed
discussion was made in the judgment of the Apex Court
referred by the counsel appearing for the State in the case
of Pesala Nookaraju (supra), including the case of
Cherukuri Mani Vs. Chief Secretary, Government of
Andhra Pradesh reported in (2015) 13 SCC 722 and
also the case of Harpreet Kaur Vs. State of
Maharashtra reported in (1992) 2 SCC 177, and so also
judgment in the case of Secretary to Government of
Tamil Nadu Public (Law and Order) Revenue
Department and Another Vs. Kamala and Another
reported in (2018) 5 SCC 322 and even in the case of
Makhan Singh Vs. State of Punjab reported in AIR
1952 SC 27. In paragraph No.43 taking note of Article
22(4)(a) of the Constitution, it is discussed in detail that
continuation of the detention pursuant to the confirmatory
order passed by the State Government need not also
specify the period of detention; neither it is restricted to a
period of three months only. If any period is specified in
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the confirmatory order, then the period of detention would
be upto such period, if no period is specified, then it would
be for a maximum period of 12 months from the date of
detention. It is also discussed with regard to 3 months'
period is concerned for compliance of considering the
matter before the Advisory Board.
89. It is also held in this judgment at paragraph
No.44 that, the Advisory Board has given its opinion
holding that there is sufficient cause for detention.
Therefore, under Article 22(4)(a), the Advisory Board
would have to give its opinion within a period of 3 months
from the date of detention and depending upon the
opinion expressed by the Advisory Board, the State
Government can under Section 12 of the Act, either
confirm the order of detention or continue the detention of
the person for a maximum period of 12 months as
specified in Section 13 of the Act or release the detenue
forthwith, as the case may be. Having considered the
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principles laid down in this judgment, the very contention
of the petitioner also cannot be accepted.
90. Having perused the material on record and
having given conscious consideration of material available
on record, in the judgment of the Apex Court in the case
of Union of India (supra), particularly in paragraph
No.43 regarding subjective satisfaction is concerned, it is
held as under:
"The Court must be conscious that the satisfaction
of the detaining authority is "subjective" in nature and
the Court cannot substitute its opinion for the
subjective satisfaction of the detaining authority and
interfere with the order of detention. It does not
mean that the subjective satisfaction of the detaining
authority is immune from judicial reviewability. By
various decisions, the Supreme Court has carved out
areas within which the validity of subjective
satisfaction can be tested. In the present case, huge
volume of gold had been smuggled into the country
unabatedly for the last three years and about 3396
kgs of the gold has been brought into India during the
period from July 2018 to March, 2019 camouflaging it
with brass metal scrap. The detaining authority
recorded finding that this has serious impact on the
economy of the nation. Detaining authority also
satisfied that the detenuees have propensity to indulge
in the same act of smuggling and passed the order of
preventive detention, which is a preventive measure.
Based on the documents and the materials placed
before the detaining authority and considering the
individual role of the detenuees, the detaining
authority satisfied itself as to the detenuees'
continued propensity and their inclination to indulge in
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acts of smuggling in a planned manner to the
detriment of the economic security of the country that
there is a need to prevent the detenuees from
smuggling goods. The High Court erred in interfering
with the satisfaction of the detaining authority and the
impugned judgment cannot be sustained and is liable
to be set aside."
(Emphasis supplied)
91. It is very clear that the Court must be
conscious that the satisfaction of the detaining authority is
'subjective' in nature and the court cannot substitute its
opinion for the subjective satisfaction of the detaining
authority and interfere with the order of detention, as the
detaining authority is in close surveillance of the detenue
in the field.
92. In the case on hand, we have already discussed
in detail that this petitioner had indulged in total 23 cases
for the offences punishable under IPC, BNS as well as
Cr.P.C. and he had continued to indulge in such acts from
2010 including not only offences against the public
tranquility and even including the public order so also the
law and order which have been discussed in detail
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regarding distinction between the same. With regard to
the Section 3 of the Act, it is very clear that the material
found against the petitioner is sufficient to pass such an
order. The authority only on subjective satisfaction while
passing such an order and grounds of detention was also
set out particularly in paragraph Nos.1 to 7 and details of
cases were also taken note of, as well as the reasons are
set out in paragraph Nos.11 and 12 and comes to the
conclusion that he is indulged in goonda activities and
habitual offender and hence, Section 3 of the Act, could be
invoked considering that he is a rowdy-sheeter being
prime accused in rape case, and started his criminal
activities since 2010 and also in attempting to take the life
of a persons, in total 23 cases are registered under IPC,
BNS and Cr.P.C. Considering all the material, comes to the
conclusion that it is the tendency to disturb the peace and
tranquility of the society at large by his covert and overt
illegal activities and his behavior is also nothing but an
anti-social element. Many of the victims do not approach
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the police out of his fear and in some cases, witnesses
were turned hostile and also though he has been enlarged
on bail and having taken note of the advantages of
granting of bail, he indulged in continuing the similar
offences including an offence against women and also anti-
social activities which are beyond control. The acquittal
and enlarging him on bail cannot be a ground to set-aside
the impugned order having into toto consideration of the
material on record and there is a subjective satisfaction.
The detaining authority while passing such an order of
detention, it is taken note of all these factors into
consideration and also the material which has been placed
before this Court and other provisions are also complied
with, while confirming the order of detention, the Advisory
Board's opinion was also taken into consideration.
93. The Advisory Board has given an opportunity by
fixing the date on 15.04.2025 and heard the detenue
through video conference and then gave an opinion on
17.04.2025. The same was communicated to the
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Government, thereafter considering entire material, the
Government confirmed the order of detention.
94. When such materials are available before the
Court, we have perused the entire records in detail and
the material also discloses that he is causing disturbance
of public order. An essential concept for preventive
detention is the detention of a person is not to punish him
and only with an intention to prevent him in doing the
similar criminal acts in future as the activities of the
detenue is beyond control in normal course and same is
also settled law that power under any enactment relating
to preventive detention is a precautionary power exercised
and the same has been applied by the respondents while
passing such a preventive detention order.
95. When subjective satisfaction is found while
passing such an order, we do not find any ground that the
same is not sustainable in the eye of law. There is no
infirmity in the said order and procedure has been followed
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by even confirming the same. Hence, there is no merit and
the petition is devoid of merits.
96. In view of the discussions made above, we pass
the following:
ORDER
The petition is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
Sd/-
(T.M.NADAF)
JUDGE
NJ/MCR
CT:NI
