Karnataka High Court
Smt. Laxmi vs The State Of Karnataka And Ors on 27 February, 2025
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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WPHC NO.200002 OF 2025
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
WRIT PETITION HABEAS CORPUS NO.200002 OF 2025
BETWEEN:
SMT. LAXMI W/O MADIVALAYYA HIREMATH
AGED ABOUT 38, OCC: HOUSEHOLD WORK,
R/O. C/O. MADIVALAYYA HIREMATH, WARD-13,
NEAR PANI NAGAR, SHIVASHAKTI NAGAR,
DIST: VIJAYPUR - 586104.
Digitally signed ...PETITIONER
by RAMESH
MATHAPATI (BY SRI S.S. MAMADAPUR, ADVOCATE)
Location: HIGH
COURT OF AND:
KARNATAKA
1. THE STATE OF KARNATAKA
REP BY IT'S SECRETARY,
DEPARTMENT OF INTERNAL
ADMINISTRATION (LAW & ORDER)
VIDHANA SOUDHA, BANGALORE - 01.
2. THE DEPUTY COMMISSIONER AND
THE DISTRICT MAGISTRATE,
VIJAYPUR - 586101.
3. THE SUPERINTENDENT OF POLICE,
VIJAYPUR - 586101.
4. THE DEPUTY SUPERINTENDENT OF POLICE,
VIJAYPUR SUB-DIVISION,
VIJAYPUR - 586101.
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WPHC NO.200002 OF 2025
5. THE CIRCLE POLICE INSPECTOR,
GOLGUMBAZ POLICE STATION,
VIJAYPUR - 586101.
6. THE POLICE SUB-INSPECTOR,
APMC POLICE STATION,
VIJAYPUR - 586101.
...RESPONDENTS
(BY SRI MALHAR RAO, AAG A/W
SRI SHIVAKUMAR TENGLI, AGA FOR R1 TO R6)
THIS WPHC IS FILED UNDER SECTION 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 SRI.
MADIWALAYYA S/O PANCHAYYA HIREMATH BEFORE THIS
HON'BLE COURT AND CONSEQUENTLY RESPONDENTS; 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 21-09-2024 IN CASE
BEARING NO.RB/MAG/GUNDA ACT CR-98/2023-24 AS PER
ANNEXURE-B IN RESPECT OF DETENUE SRI. MADIWALAYYA
S/O PANCHAYYA HIREMATH; ISSUE A WRIT OF CERTIORARI
ANY OTHER ORDER OR DIRECTION THE NATURE OF WRIT
QUASHING THE ORDER PASSED BY THE 1ST RESPONDENT
BEARING NO.HD 508 SST 2024 DATED 05-11-2024 AS PER
ANNEXURE-H CONFIRMING THE ORDER OF DETENTION
PASSED BY THE 2ND RESPONDENT AS ILLEGAL AND VOID.
THIS WRIT PETITION HABEAS CORPUS HAVING BEEN
RESERVED FOR JUDGMENT, COMING ON FOR
"PRONOUNCEMENT OF ORDERS" THIS DAY, THE COURT,
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
HON'BLE MR. JUSTICE RAJESH RAI K
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WPHC NO.200002 OF 2025
CAV ORDER
(PER: HON'BLE MR. JUSTICE RAJESH RAI K.,)
Petitioner in this writ petition has assailed the order of
detention dated 21.09.2024 passed by respondent No.2 bearing
No.RB/MAG/GOONDA ACT/CR-98/2023-24, subsequent
confirmation order dated 05.11.2024 bearing No.HD 508 SST
2024 by respondent No.1.
2. Petitioner-the wife of the detenue-Sri. Madivalayya,
is knocking the doors of this writ Court, seeking relief in the
nature of Habeas Corpus, aggrieved by the orders referred
supra.
3. The facts-in-brief that are apposite for
consideration of the case on hand as borne out from the
pleadings are as follows:
The husband of the petitioner namely Sri. Madivalayya
had indulged in anti-social and criminal activities and has
incessantly been a nuisance in maintaining law and order by
violating public peace in committing offences endangering the
human body/property and in instigating communal violence.
Since 2011, the detenue was involved in as many as 8 criminal
cases under different crime heads within Vijayapur District
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jurisdiction. The acts of detenue adversely affected in
maintaining 'public order' and despite affording him sufficient
opportunities by the Courts and by the respondent-authorities
for his reformation, he has failed to amend his behaviour. As
such, without much alternative, the respondents No.3 to 6-
Police opened 'A' rowdy-sheet against him bearing
No.P/VJP/1497/2020 dated 26.12.2022 at the Vijayapura Rural
Police Station. Accordingly, when the detenue was in custody in
connection with Crime No.76/2024 of APMC Police Station,
Vijayapur, the Circle Inspector of Police, Gol Gumbaz Circle
Police submitted a report dated 16.09.2024 to respondent No.3
to invoke the provisions of the Karnataka Prevention of
Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers,
Goondas, [Immoral Traffic Offenders, Slum-Grabbers And Video
Or Audio Pirates] Act, 1985 (for short 'Goonda Act') against the
detenue on the ground that he was involved in as many as 8
cases and continued his illegal activities disrupting public order.
Based on the said report, on 17.09.2024 respondent No.3 in
turn submitted a report to respondent No.2 i.e., Deputy
Commissioner of Vijayapura seeking to invoke Goonda Act
against the detenue. Based on these reports of sponsoring
authorities, on 21.09.2024, respondent No.2-The District
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Commissioner by exercising the power under Section 3(1) of
the Goonda Act passed an order of detention bearing
No.RB/MAG/GOONDA ACT/CR-98/2023-24 against the detenue
and the same was communicated to him on the same day i.e.,
on 21.09.2024. Later, on 22.09.2024, respondent No.2
forwarded the detention order to respondent No.1 for
confirmation. Meantime, the detenue submitted a
representation to withdraw the detention order. However, on
25.09.2024, respondent No.1 approved the detention order
passed by respondent No.2 vide order dated 05.11.2024
bearing No.HD 508 SST 2024. The representation of the
detenue was not considered by respondent No.1 and the same
was rejected and intimated to the detenue vide endorsement
dated 30.09.2024. Further, on 09.10.2024, respondent No.1
issued another endorsement for having rejected the
representation of the petitioner. Subsequently, the detenue was
produced before the Advisory Board on 25.10.2024 along with
the detention order. The Advisory Board, after considering the
oral and written submission of the detenue, confirmed the
detention order passed by respondent No.2 and confirmation
order passed by respondent No.1 vide order dated 29.10.2024.
The said order was communicated to the detenue on the same
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day. Against this backdrop, violation of Fundamental Rights
enshrined under Article 22(5) of the Constitution of India was
pleaded and the petitioner approached this Court.
4. We have heard Sri S.S. Mamadapur, learned
counsel appearing for the petitioner and Sri Malhar Rao
Additional Advocate General along with learned Additional
Advocate General Sri Shivakumar Tengli for respondent Nos.1
to 6 who has also perused the documents placed before us.
5. The primary contention of learned counsel for the
petitioner is that, the respondent authorities have failed to
place the detention order before the Advisory Board within 21
days from the date of the order as mandated under Section 10
of the Act. According to him, the detention order was passed on
21.09.2024, however, the detenue along with the detention
order was produced before the Advisory Board on 25.10.2024
i.e., over 21 days. As such, the procedural requirement of law
has not been complied with, the order of detention ceases to be
in existence on expiry of three weeks.
6. The second limb of argument by learned counsel is
that the sponsoring authority has failed to furnish the entire
documents and material relied by them before respondents
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No.1 and 2 to invoke Goonda Act against the detenue. As such,
the detenue is deprived of his right to submit an effective
representation to the detaining authority and respondent No.1
to drop/withdraw the detention order.
7. The next limb of the argument of the learned
counsel for the petitioner is that the sponsoring authority also
failed to furnish the translated copy of the documents to the
detenue in the language known to him i.e., Kannada and Hindi
as admitted by the sponsoring authority. On account of which,
the detenue could not make effective representation before the
respondents Nos.1 and 2. He also contended that, on perusal
of the report submitted by the respondent No.3 to respondent
No.2 dated 18.09.2024 depicts that the earlier proposal sent by
the sponsoring authority to invoke the Goonda Act against the
detenue was returned on 11.09.2024 by respondent No.2 and
subsequently, a fresh proposal was sent on 17.09.2024 stating
that a new case had been registered against the detenue. As a
matter of fact, no case was registered against him after
11.09.2024. In such circumstances, the proposals sent by the
sponsoring authority itself is misconceived. He submitted that,
without following the due procedure, the respondent authority
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WPHC NO.200002 OF 2025
invoked the Goonda Act against the detenue in causal manner
and the same is liable to be quashed at the hands of this Court.
8. In order to buttress his arguments, he relied upon
the judgments of Hon'ble Apex Court in the cases of
Ravikumar K.V. v. State of Karnataka and Others reported
in 2016 (4) Kar.L.J. 462, Mallikarjun and Another v. State
of Karnataka and Another reported in 2015 (1) Kar.L.J.
495, Iranna v. Government of Karnataka and Others
reported in 2006 (4) Kar.L.J. 200, Smt.R. Latha v. T.
Madiyal, Commissioner of Police, Bangalore City and
Others reported in 2000 (5) Kar.L.J. 304, Smt. Rakhi
Prakash Pawar v. Commissioner of Police, Belagavi City,
belagavi District and Others reported in 2016 (1) Kar.L.J.
422, Smt. P. Vijayalakshmi v. The Commissioner of
Police, Bangalore City, Bangalore and Others reported in
2015 (6) Kar.L.J. 686 and Smt.Asfiya Banu v. The
Commissioner of Police, Bangalore City, Bangalore and
Others reported in 2012 (5) Kar.L.J. 277 and prays to allow
the petition.
9. Per contra, learned AAG for the respondents has
filed his statement of objection, similarly, has placed the entire
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WPHC NO.200002 OF 2025
records in support of his case and submitted that, the detention
order was passed on account of detenue being a habitual
offender, who was involved in offences affecting the public at
large and 'A' rowdy-sheet was instituted against him by the
Vijayapur Rural Police Station. Despite, he continued his illegal
activities. As such, without any alternative, the impugned
detention order was passed and the same has withstood the
test of legality before the Advisory Board and hence, he prays
for dismissal of the petition.
10. Having heard the learned counsel for the petitioner
and learned AAG, the only point that arise for our consideration
is:
"Whether the order of detention dated
21.09.2024 passed by respondent No.2 bearing
No.RB/MAG/GOONDA ACT/CR-98/2023-24,
subsequent confirmation order dated
05.11.2024 bearing No.HD 508 SST 2024
passed by respondent No.2 are sustainable
under law?"
11. In address to the primary contention of the learned
counsel for the petitioner, we find it relevant to peruse the
proceedings of the Advisory Board, accordingly, we summoned
the proceedings of Advisory Board through learned AAG and
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perused the same. As could be seen from the original records,
the detention order was invoked on 21.09.2024. As per Section
10 of the Goonda Act, the same has to be placed before the
Advisory Board within 21 days. For better understanding,
Section 10 of the Act is extracted as under:
"10. Reference to Advisory Board.- In every
case where a detention order has been made under
this Act the State Government shall within three
weeks from the date of detention of a person under
the order, place before the Advisory Board
constituted by it under section 9, the grounds on
which the order has been made and the
representation, if any, made against the order, and
in case where the order has been made by an
officer, also the report by such officer under sub-
section (3) of section 3."
12. In the case on hand, the detenue was produced
before the Advisory Board and the meeting of the Advisory
Board was held on 24.10.2024. As per the original records, the
letter along with the file was placed before the Chairman of the
Advisory Board on 16.10.2024. This was not disputed by the
learned AAG. Thus, it is clear that the respondent authority
placed the detention order before the Advisory Board after a
lapse of 21 days. As per Section 10 of the Act, the respondent
authorities ought to have placed the detention order before the
Advisory Board on or before 10.10.2024 i.e., within 21 days. In
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such circumstance, the Coordinate Bench of this Court in the
case of Iranna v. Government of Karnataka and Others
reported in 2006 (4) Kar.L.J. 200, held in paragraph No.6 as
under:
"6. Reg. Question No. 1.-- In order to answer the
first question, it is necessary to refer to Section 10
of the Act which reads as under:
"10. Reference to Advisory Board.-- In
every case where a detention order has been
made under this Act, the State Government
shall within three weeks from the date of
detention of a person under the order, place
before the Advisory Board constituted by it
under Section 9, the grounds on which the
order has been made and the
representation, if any, made by the order,
and in the case where the order has been
made by an officer, also the report by such
officer under sub-section (3) of Section 3".
The reading of the aforesaid section makes it
clear that in every case where a detention order has
been made under the Act, the State Government
shall within three weeks from the date of detention
of a person under the order, place the same before
the Advisory Board. Having regard to the language
employed in the aforesaid section, it is clear that the
requirement is mandatory in nature. It is necessary
to point out that the detenue is kept in detention
without any trial. In Section 10 of the word
employed is "shall". Having regard to the fact that
the person is deprived of his right to liberty
guaranteed under Article 21 of the Constitution, the
requirement of Section 10 which mandates the
authority to place the grounds of detention to the
Advisory Board within three weeks must be
construed as mandatory in nature. While
considering sub-section (1) of Section 11, wherein
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the Advisory Board is required to submit its report
to the State Government within seven weeks, we
have taken the view that the said requirement of
submitting report by the Advisory Board to the State
Government is mandatory in nature. In our view,
what is stated while considering sub-section (1) of
Section 11 would apply to the provisions contained
in Section 10 of the Act.
The Supreme Court in the case of Abdul Latif
Abdul Wahab Sheikh v. B.K Jha . AIR 1987 SC 725,
has held as under:
"5. Neither of the cases cited by the
learned Counsel for the State deal with the
question now at issue even in a remote way.
They do not have any application. We only
desire to add that in a habeas corpus
proceeding, it is not a sufficient answer to say
that the procedural requirements of the
Constitution and the statute have been
complied with before the date of hearing and
therefore, the detention should be upheld.
The procedural requirements are, the only
safeguards available to a detenue since the
Court is not expected to go behind the
subjective satisfaction of the detaining
authority. The procedural requirements are,
therefore, to be strictly complied with if any
value is to be attached to the liberty of the
subject and the constitutional rights
guaranteed to him in that regard. If a
reference to an Advisory Board is to be made
within three weeks, it is no answer to say
that the reference, though not made within
three weeks, was made before the hearing of
the case. If the report of the Advisory Board
is to be obtained within three months, it is no
answer to say that he report, though not
obtained within three months, was obtained
before the hearing of the case. If the
representation made by the detenue is
required to be disposed of within a stipulated
period, it is no answer to say that the
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representation, though not disposed of within
three months, was disposed of before the
hearing of the case. We mentioned that we
were intrigued that an order of detention
should have been made, knowing full well
that there was no Advisory Board in existence
to whom a reference could be made under
the Act and whose report could be obtained
as required by the Constitution. Such a casual
and indifferent approach betrays a disregard
for the rights of citizens and this has to be
deprecated. We have no option but to allow
the appeal and quash the order of detention
dated August 7, 1986. The petitioner is now
on parole. He need not surrender to his
parole. In the view that we have taken, we
have refrained from referring to the other
submissions of the learned Counsel for the
petitioner".
Further, the Supreme Court in the case of
S.M.D Kiran Pasha, dealing with the identical
provision under the Andhra Pradesh Act has held as
under:
"29. ... Thus Section 10 makes it
mandatory for the Government to place the
ground on which the detention order has
been made and the representation, if any
made by the person affected by the order and
in case where the order has been made by an
officer also the report by officer under sub-
section (3) of Section 3. The section
prescribes three weeks from the date of
detention irrespective of whether the person
continues to be in detention or not.
Therefore, even though the detenue was
released, if the detention order was in force,
his case was required to be placed before the
Advisory Board. This being a mandatory
provision and having not been complied with,
the detention order even if otherwise it was in
force, cannot be said to have been in force
after three weeks. Under Article 22 of the
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Constitution of India a person cannot be kept
in detention beyond three months without
referring his case to an Advisory Board under
the appropriate law. In either case, the
appellant's case having not been referred to
Advisory Board the detention order cannot be
said to have remained in force after the
statutory period. It is, therefore, not
necessary to go into the validity or otherwise
of the grounds of detention.
30. In the result, we set aside the
impugned judgment of the High Court and
hold that the detention order ceased to be in
force after 12 years of making thereof and
even if it was in force it ceased to be in force
for failure to refer the appellant's case to the
Advisory Board within the time prescribed by
law; and accordingly we quash the same".
From the aforesaid judgments of the Supreme
Court, it is clear that the procedural requirements,
are the only safeguards available to a detenue since
the Court is not expected to go behind the
subjective satisfaction of the detaining authority.
The procedural requirements are therefore, to be
strictly complied with, if any value is to be attached
to the liberty of the subject and the constitutional
rights guaranteed to him in that regard. Section 10
makes it mandatory for the Government to place
the ground on which the detention order has been
made and the representation, if any made by the
person affected by the order and in case where an
order has been made by an officer, also the report
by officer under sub-section (3) of Section 3 of the
Act before the Advisory Board. This being a
mandatory provision which has to be complied with
under Article 22 of the Constitution of India, a
person cannot be kept in detention beyond three
months without referring his case to an Advisory
Board. If the procedural requirements of law has not
been complied with, the order of detention ceases to
be in existence after the expiry of three weeks from
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the date of detention and therefore, the said order
of detention is liable to be quashed."
13. Applying the above findings of the judgment of the
Co-ordinate Bench of this Court, in our considered view, there
is substantial force in the primary contention raised by the
learned counsel for the petitioner and we hold the same in
favour of the petitioner.
14. The second limb of the argument advanced by the
learned counsel for the petitioner is concerned, on careful
perusal of the detention order and the grounds of detention,
the detaining authority has stated that the language known and
comprehendible by the detenue is exclusively Kannada and
Hindi. On perusal of the entire compilation of documents, the
respondent authorities have failed to furnish the translated
copies of judgment in S.C.No.183/2011 which was in English
i.e., page Nos.117 to 151 of compilation. Further, the judgment
in Crl.A.No.3649/2012 which finds place in page Nos.151(1) to
151(xv) and in judgment in C.C.No.4450/2021 in page Nos.258
to 267 are also in English. The respondent authorities are duty
bound to furnish the translated copy of the documents relied by
them to invoke the Goonda Act against the detenue in the
language known to him, this is primarily to enable him to
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submit an effective representation both before respondent No.1
and the Advisory Board. This position of law is settled by the
Co-ordinate Bench of this Court in the case of Smt. Rakhi
Prakash Pawar v. Commissioner of Police, Belagavi City,
belagavi District and Others reported in 2016 (1) Kar.L.J.
422. The Co-ordinate Bench by relying on the judgment of the
Hon'ble Apex Court in the case Prakash Chandra Mehta v.
Commissioner and Secretary, Government of Kerala and
Others reported in AIR 1986 SC 687, held in paragraph
No.19 as under:
"19. We have also perused the decision relied
upon by the learned Govt. Advocate with regard to
language known to the detenue. Learned Govt.
Advocate drew our attention to paragraphs No.63 to
65 of the judgment of the Apex Court in the case of
Prakash Chandra Mehta Vs. Commissioner and
Secretary, Government of Kerala and others which
reads as follows:
62. In the instant case it was submitted
that assuming that Venilal Mehta knew
Hindi , the translated copy of the English
grounds was admittedly made available to
him in Hindi language on 30th June , 1984-
beyond a period of five days and for which
neither any exceptional circumstances
existed nor an reason given. Moreover it
was urged that the annexures in Malayalam
language retained their places while
supplying the translated copy of the
grounds of detention in Hindi language.
Therefore it was urged that there was
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noncompliance with the provisions of the
Act.
63. It will be appropriate to deal with the
first ground. Whether the grounds should
have been communicated in the language
under stood by the detenues? The
Constitution requires that the grounds must
be communicated. Therefore it must follow
as an imperative that the grounds must be
communicated in a language understood by
the person concerned so that he can make
effective representation. Here the definite
case of the petitioner's father is that he
does not understand English or Hindi or
Malayalam and does under stand only
Gujrati language. The facts revealed that
the detenue Venilal was constantly
accompanied and was in the company of his
daughter as well as son both of them knew
English very well. The father signed a
document in Gujrati which was written in
English which is his mercy petition in which
he completely accepted the guilt of the
involvement in smuggling. That document
dated 30th June, 1984 contained, inter alia,
a statement "I myself am surprised to
understand what prompted me to involve in
such activity as dealing in Imported Gold".
He further asked for mercy. There is no rule
of law that common sense should be put in
cold storage while considering constitutional
provisions for safeguards against misuse of
powers by authorities though these
constitutional provisions should be strictly
construed. Bearing this salutary principle in
mind and having regard to the conduct of
the detenue Venilal Mehta specially in the
mercy petition and other communications,
the version of the detenue Venilal is
feigning lack of any knowledge of English
must be judged in the proper perspective.
He was, however, in any event given by
30th June, 1984 the Hindi translation of the
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grounds of which he claimed ignorance. The
gist of the annexures which were given in
Malayalam language had been stated in the
grounds. That he does not know anything
except Gujrati is merely the ipse dixit of
Venilal Mehta and is not the last word and
the Court is not denuded to its powers to
examine the truth. He goes to the extent
that he signed the mercy petition not
knowing the contents, not understanding
the same merely because his wife sent it
though he was sixty years old and he was in
business and he was writing at a time when
he was under arrest, his room had been
searched, gold biscuits had been recovered
from him. Court is not the place where one
can sell all tales. The detaining authority
came to the conclusion that he knew both
Hindi and English. It has been stated so in
the affidavit filed on behalf of the
respondent. We are of the opinion that the
detenue Venilal Mehta was merely feigning
ignorance of English.
65. The principle is well-settled. But in
this case it has to be borne in mind that the
grounds were given on 25th June, 1984
following the search and seizure of gold
biscuits from his room in the hotel in his
presence and in the background of the
mercy petition as we have indicated and he
was in constant touch with his daughter and
sons and there is no evidence that these
people did not know Hindi or English.
Indeed they knew English as well as Hindi.
It is difficult to accept the position that in
the peculiar facts of this case the grounds
were not communicated in the sense the
grounds of detention were not conveyed to
the detenue Venilal. Whether grounds were
communicated or not depends upon the
facts and circumstances of each case."
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In the said judgment, an affidavit was filed by
the respondent authorities about the detenue
knowing the other languages also. Detenue in the
said case had made his representation in English
and signed in Gujarathi. It was observed by their
Lordships in the said decision that he was in
constant touch with his son and daughter who knew
English language.
But, in the case on hand, according to the
detaining authority, the detenue had studied in
Marathi language and knew reading, writing and
speaking in Marathi. Therefore, the ratio of above
judgment is not applicable to the facts of the case
on hand. Therefore, the said decision will not come
to the aid and assistance of the respondent
authorities in opposing the petition."
15. The Co-ordinate Bench of this Court has followed
the judgment of the Hon'ble Apex Court and made it clear that
the procedural requirements are the only safeguards available
to a detenue and the same shall be strictly complied with, if
any value is to be attached to the liberty of the subject and the
constitutional rights guaranteed to the detenue in that regard.
As the respondent authorities failed to comply with the
procedural aspect, we find substantial force in the second limb
of argument advanced by the learned counsel for the
petitioner.
16. The third limb of argument advanced by the learned
counsel for the petitioner is that the respondent authority failed
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to furnish the material documents to the detenue and this
resulted the detenue being deprived of his right to submit an
effective representation to the respondent No.1 and the
Advisory Board. We have carefully perused the compilation
produced by the learned counsel for the petitioner; the said
documents are also perused by the learned AAG and fairly
conceded by him that, it contains complete documents
furnished by the respondents to the detenue while invoking the
Act. On perusal of the same, the report of respondent No.3 to
respondent No.2 dated 18.09.2024 portrays that, respondent
No.2 rejected the earlier proposal of invoking the Goonda Act
against the detenue vide letter dated 11.09.2024 on the ground
that no new cases were registered against him since
23.07.2024. Despite, the sponsoring authority once again
submitted the proposal without there being any new case
registered against the detenue. The last case registered
against the detenue was in Crime No.70/2024 dated
23.07.2024 by the APMC Police. As on 11.09.2024 i.e., the
date on which earlier proposal was rejected, case in Crime
No.70/2024 was already in existence. As such, as rightly
contended by the learned counsel for the petitioner there was
no new case/ground available before the authority to invoke
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the provisions of Goonda Act against the detenue soon after the
rejection of the earlier proposal by respondent No.1 on
11.09.2024. Nevertheless, the respondent authority invoked
the Goonda Act by relying on the last crime registered against
the detenue i.e., Crime No.70/2024 and they failed to furnish
the complaint copy of the said document to the detenue. This
could be gathered from the documents in the compilation. In
such circumstance, the Co-ordinate Bench of this Court in the
case of Mallikarjun and Another v. State of Karnataka and
Another reported in 2015 (1) Kar.L.J. 495, held in
paragraph No.6 as under:
"6. We may usefully extract the principles laid
down in this regard by the Apex Court in Abdul Sathar
Ibrahim Manik's case. The Apex Court after referring
to several other judgments in the case of Abdul Sattar
[AIR 1991 SC 2261] suchas Abdul Sattar Abdul Kadar
Shaikh Vs. Union of India (1990) 1 SCC 480], Syed
Farooq Mohammad Vs. Union of India,
[AIR1990SC1597], N.Meera Rani Vs. Govt. of Tamil
Nadu, [(1989) 4 SCC 418] : (AIR 1989 SC 2027],
Sanjay Kumar Aggarwal Vs. Union of India [(1990) 3
SCC 309 : [AIR 1990 SC 1202] and Kamarunnissa
Vs.Union of India, [AIR1991SC1640:(1991
CriLJ2058)has laid down the following principles:
(1) "A detention order can validly be passed
even in the case of a person who is
already in custody. In such a case, it must
appear from the grounds that the
authority was aware that the detenue was
already in custody.
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(2) When such awareness is there then it
should further appear from the grounds
that there was enough material
necessitating the detention of the person
in custody. This aspect depends upon
various considerations and facts and
circumstances of each case. If there is a
possibility of his being released and on
being so released he is likely to indulge in
prejudicial activity then that would be one
such compelling necessity to pass the
detention order. The order cannot be
quashed on the ground that the proper
course for the authority was to oppose the
bail and that if bail is granted
notwithstanding such opposition the same
can be questioned before a higher Court.
(3) If the detenue has moved for bail then the
application and the order thereon refusing
bail even if not placed before the detaining
authority it does not amount to
suppression of relevant material. The
question of non- application of mind and
satisfaction being impaired does not arise
as long as the detaining authority was
aware of the fact that the detenue was in
actual custody.
(4) Accordingly the non-supply of the copies of
bail application or the order refusing bail
to the detenue cannot affect the detenue's
right of being afforded a reasonable
opportunity guaranteed under Article
22(5) when it is clear that the authority
has not relied or referred to the same.
(5) When the detaining authority has merely
referred to them in the narration of events
and has not relied upon them, failure to
supply bail application and order refusing
bail will not cause any prejudice to the
detenue in making an effective
representation. Only when the detaining
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authority has not only referred to but also
relied upon them in arriving at the
necessary satisfaction then failure to
supply these documents, may, in certain
cases depending upon the facts and
circumstances amount to violation of
Article 22(5) of the Constitution of India.
Whether in a given case the detaining
authority has casually or passingly
referred to these documents or also relied
upon them depends upon the facts and the
grounds, which aspect can be examined by
the Court.
(6) In a case where detenue is released on
bail and is at liberty at the time of passing
the order of detention, then the detaining
authority has to necessarily rely upon
them as that would be a vital ground for
ordering detention. In such a case the bail
application and the order granting bail
should necessarily be placed before the
authority and the copies should also be
supplied to the detenue."
17. It is evident that the detenue has been deprived of
his right to make an effective representation in view of non-
supply of the material document i.e., the complaint in Crime
No.70/2024 which the sponsoring authority relied upon in
invoking the Goonda Act against the detenue. Hence, we also
hold the third limb of argument advanced by the learned
counsel petitioner in his favour.
18. Additionally, the Hon'ble Apex Court in the case of
Nenavath Bujji v. State of Telangana reported in 2024 SCC
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OnLine SC 367, drew a distinction between 'Public Disorder'
and 'Law and Order'. The Hon'ble Apex Court by distinguishing
the above two terms held that, in order to detain any person
under the Act, his/her illegal activities must affect the
community or public at large and a mere disturbance of law
and order leading to disorder is thus not necessarily sufficient
to invoke the provision of the Act. Further, for an act to qualify
as a disturbance to public order, the specific activity must have
an impact on broader community or the general public, evoking
feelings of fear, panic, or insecurity. Not every case of a
general disturbance affecting public tranquillity falls within the
purview of public order.
19. Hence, we are of the view that, the detention order
does not pass the test of guidelines issued by the Hon'ble Apex
Court in the case of Nenavath Bujji referred supra and the
respondent-Police Authorities are duty bound and at liberty to
extend appropriate legal action against the detenue for his
alleged illegal activities beside to file application for cancellation
of bail granted to the detenue. Having been failed to exhaust
such remedy, invoking the provisions of the Goonda Act and
keeping the detenue under illegal detention violates the
Fundamental Rights of the detenue as enshrined under the
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Constitution. Neither proper justification nor rationale
forthcoming from the order of detention or the subsequent
orders. Hence, we answer the point raised above in the
negative and proceed to pass the following:
ORDER
a) The Writ Petition is allowed.
b) The order of detention dated 21.09.2024 passed by
respondent No.2 bearing No.RB/MAG/GOONDA
ACT/CR-98/2023-24, subsequent confirmation
order dated 05.11.2024 bearing No.HD 508 SST
2024 passed by respondent No.1 stands quashed.
c) Consequently, the respondents are directed to set
the detenue at liberty, forthwith.
d) The Registry is hereby directed to communicate
this order to the respondents as well as the Jail
Authority to release the detenue forthwith, if his
requirement is not needed in any other cases.
No order as to Costs.
Sd/-
(S.SUNIL DUTT YADAV)
JUDGE
Sd/-
(RAJESH RAI K)
JUDGE
HKV
CT: PS
