"Wherefore, it is most humbly and respectfully prayed
that this Hon'ble Court may be pleased to:
b. Call for the records bearing reference number
05/CRM(4)/DTN/2025 dated 29/01/2025 (Annexure "A") from
the Respondents;
c. Pass any order that this Hon'ble Court may deem fit in
the interest of justice."
2. FACTS OF THE CASE:-
Despite on bail, in the criminal cases initiated against him, the
detenue indulged in threatening the witnesses thereby, hampering
the administration of justice. The authorities having left with no
other alternative had to detain the detenue under the provisions of
Sections 3 (1) and (2) of the Karnataka Prevention of Dangerous
Activities of Bootleggers, Drug Offenders, Gamblers, Goondas,
Immoral Traffic Offenders, Slum-Grabbers and Video or Audio
Pirates Act, 1985 (Act 12 of 1985) (Goonda Act) (hereinafter
referred as 'Act, 1985', for short), to prevent the detenue from
acting in any manner prejudicial to the maintenance of public order
in the society. As the detenue had indulged in continuous crimes
and is a threat to the society, his preventive detention is
necessitated to guarantee the constitutional rights of the other
citizens.
3. The details of cases against the detenue are extracted for
easy and immediate reference in the following manner:
Sl.No Police Station Crime numbers and Sections Current
invoked against the detenue. stage
1 Kempegowda Crime No 136/2018 U/S 143, Case
nagar P S 147, 323, 324, 354, 355, acquitted
504, 506 R/w 149 of IPC
2 Basavanagudi Crime No 29/2020 U/S 341, Under trial
PS 427, 307 R/w 34 of IPC
3 Mico Layout PS Crime No 219/2020 U/S 454 Under trial
and 380 of IPC
4 Jigani P S Crime No 200/2020 U/S 457 Under trial
and 380 of IPC
5 K.G Nagar PS Crime No 01/2021 U/S 41(D), Under trial
102 of Cr.P.C and 379 of IPC
6 K.G Nagar PS Crime No 127/2021 U/S 143, Case
144, 145, 341, 383, 324, acquitted
504, 506 R/w 34 of IPC
7 K.G Nagar PS Crime No 30/2022 U/S 399, Under trial
402 of IPC and 25-1(B)(B) of
Arms Act
8 K.G Nagar PS Crime No 84/2022 U/S 324, Under trial
323, 504, 341, 506 of IPC
9 K.G Nagar PS Crime No 28/2023 U/S 143, Under trial
144, 148, 120(b), 341, 307,
504, 149 R/w 34 of IPC
10 Hanumantha Crime No 56/2024 U/S 307 Under trial
nagara P S R/w 34 of IPC
11 K.G Nagar PS Crime No 48/2024 U/S Settled in
229(A) of IPC Lok Adalat
12 K.G Nagar PS Crime No 105/2024 U/S Under trial
118(1), 351(2), 352 of BNS
4. It is apt to extract the dates and events from the date of
passing of the order of detention till the same was confirmed by the
Government, in the following manner:
Sl.No Dates Description
1. 29.01.2025 Detention order was passed by Respondent
No 1 along with the grounds for detention
dated 29.01.2025.
2. 29.01.2025 Detention order and Grounds of Detention
was served to the detenue.
3. 31.01.2025 Copy of the Detention order forwarded to the
state Government.
4. 04.02.2025 The Detention order was approved by the
SST 2025
5. 05.02.2025 The order of approval was served to the
detenue
6. 06.02.2025 The Detention Order along with the
Government Order of Approval, were sent to
the Advisory Board.
7. 10.02.2025 Detenue made a representation to the
Advisory Board.
8. 13.02.2025 The representation made by the Detenue was
forwarded to the Advisory Board.
9. 13.02.2025 State Government considers the
representation submitted by the Detenue and
rejects it.
10. 19.02.2025 Detenue was informed about the rejection of
his representation
11. 20.02.2025 The communication was received from the
Advisory Board regarding intimation of the
date of hearing , which fixed on 25.02.2025.
12. 21.02.2025 Detenue was informed about the
communication intimating the date of hearing
before the Advisory Board which was fixed on
25.02.2025
13. 25.02.2025 The meeting of the Advisory Board was held.
14. 28.02.2025 The Report and the opinion of the Advisory
Board was made.
15. 04.03.2025 The Report and opinion was sent to the state
Government and the same was placed before
the Government for consideration
16. 06.03.2025 The advisory board opinion and Report was
confirmed by the 2nd Respondent.
17. 08.03.2025 The order of confirmation was served upon
the detenue.
5. It is the orders of detention, approval and extension
which have been called in question in this Writ Petition for Habeas
Corpus.
SUBMISSIONS:
6. Heard Sri.Rohan Veeranna Tigadi, learned counsel
appearing for the petitioner, Sri.B.A.Belliappa, learned SPP along
with Sri.Tejesh P., learned HCGP for respondents No.1 to 3.
7. Sri.Rohan Veeranna Tigadi, attacked the order of
detention, approval and extension mainly on three grounds:
7(a). Firstly, the detention order is passed on stale material
viz., 8 out of 12 cases mentioned in the detention order allegedly
occurred two years prior to passing of detention order which are
visibly clear in the table mentioned in Annexure - B to the writ
petition. The last crime was registered on 18.08.2024 and the order
at Annexure - A dated 29.01.2025 passed after an inordinate delay
of 164 days. No material has been placed on record to demonstrate
that the detenue engaged in disruption of public order during 164
days i.e., from the last date of commission of the crime and the date
of passing of the detention order.
7(b). To support his submission Sri.Tigadi, has relied on the
judgments of the Hon'ble Apex Court in Ameena Begum vs. State
of Telangana and Others1 wherein according to Mr.Tigadi, the
Hon'ble Apex Court held that the detention orders founded on stale
(2023) 9 SCC 587
claims are liable to be quashed because there is no proximate link
between the maintenance of public order and detention of an
individual.
7(c). He also refer to the judgment of Co-ordinate Bench of
this Court in the case of Smt.Dayavathi vs. State of Karnataka
in WPHC No.50/2024 to contend when a detention order is passed
after one year from the date of registration of the last crime and the
order of detention is bad as there is no proximate link between the
grounds of detention and the detention order.
7(d). He further refers to the judgment of the Co-ordinate
Bench of this Court in the case of Shilpa vs. State of Karnataka in
WPHC No.53/2024, wherein the Co-ordinate Bench of this Court held
that there is no specific reason forthcoming in the impugned
detention order passed by the Detaining Authority, which made the
authorities, pass the detention order after nearly lapse of 79
calendar days since the last registration of the crime, making the
detention order bad / illegal.
8. The next limb of argument canvassed by Sri.Tigadi, is
that the Detaining Authority ignored several vital materials before
recording its subjective satisfaction which vitiates the detention
order making it as an illegal detention. He argued that out of 12
cases registered, he has been acquitted in two cases i.e., in Crime
No.136/2018 and 127/2021 and had settled one case before
Lokadalat i.e., in Crime No.48/2024. He was on bail by the
Court/Police Station in seven cases. According to him, the Detaining
Authority has failed to consider the reasons given by the respective
Courts while granting bail in various crimes alleged against the
detenue, shows non-application of mind making the order illegal.
8(a). To buttress his arguments, he has relied on the judgment
of Hon'ble Apex Court in the case of Abdul Sathar Ibrahim Malik
vs. Union of India and others2 wherein, the Hon'ble Apex Court
has arrived at a conclusion as follows:
"(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."
8(b). He also relied upon two judgments of Bombay High
Court, in the case of (i) Alakshit vs. State of Maharashtra3 and
(ii) Elizabeth Raibhai Prabhudas Gaikwad vs. State of
Maharashtra, Home Department (Special) and another4 to
(1992) 1 SCC 1
2022 SCC Online Bom. 7439
2021 SCC Online Bom. 206
stress on as bail has been granted in two case the detention order is
bad.
9. Thirdly, Sri.Tigadi, argued that the respondent No.1 -
Detaining Authority has not provided reasonable opportunity to the
detenue to make his representation before the appropriate authority
which violates the constitutional guarantee under Article 22(5) of
Constitution of India. He argued that the detaining authority failed
to provide the time limits specifically within which the detenue has
to make a representation to the concerned higher authority. He
refers to paragraph No.18 of the writ petition wherein, the petitioner
has assailed the legality of the detention order on the ground of
non-granting sufficient time in terms of the judgment of this Court
in Jayamma vs. Commissioner of Police, Bengaluru5 wherein,
this Court had directed the authority to provide the detenue a
minimum of 8 days time from the date of detention order passed by
the Commissioner of Police to the detenue to make his
representation. He takes an exception to the case on hand by
arguing that the order of detention was made on 29.01.2025 by the
respondent No.1 - Police Commissioner and forwarded the same to
the respondent No.2 - State of Karnataka on 31.01.2025 i.e., within
ILR 2019 Kar 1543
a span of two days which has deprived the detenue of his right to
make his representation guaranteed under Article 22 of the
Constitution of India. To buttress his contention on this limb of
argument, he has relied upon the judgment of this Court in Suresh
Shetty vs. State of Karnataka and Others6 more specifically
paragraph Nos.27 and 28 wherein, this Court has observed that as
the period in which the representation needs to be filed has not
been specified in the order of detention made, the right to file the
representation becomes illusory. He has also relied on the judgment
of Hon'ble Apex Court in the case of Icchu Devi Choraria vs.
Union of India and Others7 for similar proposition.
9(a). He further argued that the detaining authorities have
failed to mention the documents relied by the authorities on each of
the grounds of detention and thus, the same has violated the
fundamental right of representation guaranteed under Article 22 of
the Constitution of India.
9(b). To buttress his argument, he relied upon the judgment of
this Court in the case of Jayamma (supra).
2018 SCC Online Kar 4234
(1980) 4 SCC 531
10. With this, learned counsel for the petitioner seeks
indulgence of this Court to quash the orders impugned, herein on
the ground that the orders are based on stale claims, non-
application of mind by the authorities on vital material before
recording their subjective satisfaction in the order of detention;
failure to mention specific time limit within which the representation
is to be submitted to the higher authorities against the order of
detention, violating the right guaranteed under Article-22 of the
Constitution of India as illusory; there is no proximate link between
the grounds of detention and order of detention and that the
authorities have failed to mention the documents relied upon each
ground of detention.
11. Refuting the submissions of Sri.Tigadi, Sri.Thejesh,
learned HCGP for respondents No.1 to 3, with all vehemence
submitted that all the grounds urged by the petitioner are meted out
by the authorities, by providing sufficient opportunity to the
detenue. As there was no reform in the conduct and reluctancy to
abstain from illegal activities, the authorities were left with no
alternate remedy but to initiate proceedings leading to his detention.
Sri.Thejesh, counters the first limb of argument of Sri.Tigadi, that
the detention order is based on stale claims, by filing a detailed
statement of objections to the petition. He specifically submitted
that in paragraphs Nos.13 and 14 of the statement of objections,
the Government has clearly stated the reasons for invoking the
provisions of Act 1985. He submits that it is not on the stale claims,
the prevention order has been passed. The authority has taken into
consideration all the criminal activities of detenue which is
endangering the public order. The activities of the detenue were not
merely causing problem in law and order situation but was
endangering the public order and safety. He is involved in 12 cases,
out of which, 3 are booked for attempt to murder for causing
grievous hurt on the vital parts of the victim. He is prowling around
the locality with lethal weapons causing a greater fear and infliction
of apprehension in the minds of the people, disturbing the peace of
public in the locality. Though several opportunities were given to the
detenue, to reform himself to correct his habitual criminal
tendencies. In fact, the detenue has not been granted bail in four
cases. The cases relied upon by the authority in the order of
detention clearly demonstrates a continuous chain of events
depicting criminal behavior. The cases against him are pending for
trial. He has violated the bail conditions causing apprehensions and
threatening the witnesses, which has resulted in people not coming
forward to lodge complaint against him; apprehending assault and
injury at his hands. Several documents were considered by the
authorities prior to invoking the sparing power enjoined by the
provisions of the Act, 1985. The case was listed before the Advisory
Board on 25.02.2025 wherein, the detenue was produced through
video conference. The Advisory Board enquired the detenue
regarding service of detention order and other relevant records
which are basis for his detention. The detenue agreed to the receipt
of the order and the documents. Sri.Thejesh submitted that a
specific contention has been taken in this regard at paragraph No.32
of the statement of objections, which we reproduce as under:-
"32. It is submitted that the Detention Order and
Government Order, along with the records, were placed before
the Advisory Board on 06.02.2025 for its pursuance. The
Advisory Board fixed the meeting for 25.02.2025, the same
was intimated to the detenue on 21.02.2025. On 25.02.2025, a
meeting was held by the Advisory Board, where the detenue
was produced through video conference, the learned committee
members of the Advisory Board enquired about the service of
the Detention Order and other relevant records for which he
has been detained. The detenue has agreed to the receipt of
the documents and also revealed his innocence for the
allegation made in all the crimes registered against him."
12. With this, he submits that the detention order was not
based on stale claims but on the yardstick of reality as reflected
from the records.
13. Insofar as second ground canvassed by Sri.Tigadi, is
concerned, Sri.Thejesh counters the same by stating that the
authorities have considered all the vital material prior to recording
satisfaction for passing, the detention order. The same is manifestly
reflected in the grounds, wherein the respondent No.1 extensively
considered entire case and the materials on record especially at
page No.55 of the writ petition in unnumbered third paragraph
(English translation of grounds for detention), which we reproduce
as under:-
"I have examined the reports and the material placed
before me by the Police Inspector, K G Nagar Police Station
through the Assistant Commissioner of Police, V Puram Sub
Division, and the Deputy Commissioner of Police, South
Division Bengaluru City. On perusal of all the material placed
before me, it is evident that to criminal activities have caused
breach of public order and cannot be prevented un ordinary
laws of the land. You have repeatedly violated the bail
conditions impo on you by the Hon'ble Courts. Your Goonda
activities are disturbing public tranqu and normal life. Because
of this, public order is adversely affected and a sense of is
created in certain parts of Bengaluru City.
In view of the aforesaid grounds, I am convinced that you
are a Goonda as defined under section 2 (g) 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 (Karnataka
Act No. 12 of 1985) and that you are likely to indulge in anti-
social activities and such other activities prejudicial to the
maintenance of public order."
14. Insofar as the third ground canvassed by the learned
counsel for the petitioner regarding violation of fundamental right
guaranteed under Article 22 of the Constitution of India, regarding
non-specifying of time and mentioning of the documents relied upon
by the authorities on each of the grounds of detention is concerned,
Sri.Thejesh, counters the same through his statement of objections
especially at paragraphs No.26, 30, 31, 32, 33 and 34. He
submitted that detention order was passed on 29.01.2025, the same
was communicated and served on the detenue on the very same
day, to provide him a reasonable opportunity to make meaningful
representation to the concerned authority, entire grounds of
detention were read over to the detenue in the language known to
him i.e., in Kannada to his satisfaction. The order of detention was
forwarded to the Government on 31.01.2025 for approval and same
was approved on 04.02.2025. The detenue submitted his
representation to the Government only on 10.02.2025, which the
authorities promptly forwarded to the Advisory Board on
13.02.2025. The State Government reviewed and rejected the
representation on 13.02.2025, which was informed to the detenue
on 19.02.2025. Entire records including the detention order and
Government Order approving the same were placed before Advisory
Board on 13.02.2025. The Advisory Board fixed its meeting on
25.02.2025, which date was duly informed to the detenue on
21.02.2025. The Advisory Board after considering the entire
material on record confirmed the detention order on 28.02.2025 and
communicated to the Government on 04.03.2025 and the
Government on 06.03.2025, confirmed the order of detention for a
period of one year. He argued that the detenue is in the habit of
jumping bails, threatening witnesses and misused the freedom
afforded by the Courts. There was no improvement in the conduct
of the detenue to reform himself availing the opportunities enabled
to him by the Courts while granting bail. He is in the habit of
prowling with his gang in the locality with lethal weapons, causing
fear in the minds of people of the locality which in turn resulting in
the peace being disturbed affecting the public order, which
ultimately made the authorities as a last resort to invoke the
provisions of Act, 1985. Insofar as non-providing of 8 days time to
make representation, Sri.Thejesh, submitted that there is no time
limit mentioned in the provisions. He further stated that the time
limit observed in the order of this Court in Jayamma stated supra,
is on the basis of facts of the case which are clearly forthcoming in
paragraph No.2 of the said judgment. In the present case, the
detenue was given opportunity by supplying the copy of the order of
detention along with the documents which he admitted before the
Advisory Board. Hyper technical argument of non-mentioning of
time will not overweigh the consideration of public order and safety.
The Detaining Authority has considered all the documents and the
law to reach the subjective satisfaction, passed the order in the facts
and circumstances of the present case, which do not call for any
interference at the hands of this Court.
15. To buttress his argument he has relied upon the
judgment of the Hon'ble Apex Court in the case of UNION OF
INDIA AND JOINT SECRETARY (COFEPOSA) GOVERNMENT OF
INDIA, MINISTRY OF FINANCE VS. DIMPLE HAPPY DHAKAD,8
(2019) 20 SCC 609
and ABDUL SATHAR IBRAHIM MANIK VS. UNION OF INDIA
AND OTHERS9.
16. Having heard learned counsel for the parties and perused
the materials, the only point which comes up for consideration
before us:
"Whether the orders impugned stated supra are
sustainable in law?"
ANALYSIS:-
Our answer to the point raised supra is in the Negative for the
following:-
REASONS
17. It is not in dispute that there are twelve cases lodged
against the detenue in several Police Stations of the Bengaluru city
which we have already extracted above. The only exception which is
taken by the learned counsel for the petitioner while arguing the
case, is that the detention order was passed on stale claims and
there is no proximate link between the grounds of detention, in as
much as the detention order was passed after an inordinate delay of
164 days from the last crime registered against the petitioner.
Further, that the Detaining Authority failed to consider vital
(1992) 1 SCC 1
materials while recording its subjective satisfaction, which is the
pulse of the provisions contained in the Act, 1985. Further, there is
no specific time period fixed in the detention order for submission of
representation to the higher authorities by the detenue. He further
argued that the Detaining Authorities have failed to mention the
documents relied upon by them on each of the ground of detention,
which has resulted in violation of the fundamental rights of the
detenue guaranteed under Article-22(5) of Constitution of India and
also against the judgment of this court in the case of Jayamma
supra.
18. Whereas the learned HCGP argued that, mere non-
mentioning of time in the detention order by itself will not make the
order bad. The order passed by the Detaining Authority was after
arriving at subjective satisfaction, considering all the documents
before it and placed its reasons and grounds on the basis of
documents, after careful analysis of the same, keeping in mind the
judicial pronouncements of the Hon'ble Apex Court, this Court and
all other High Court across the country. The contention that there is
a delay of 164 days would itself, is not the criteria to view the order
of detention in a tinted glass. The Detaining Authority has the
expertise in the field and having perused the entire documents,
recorded a subjective satisfaction, as the detention is clearly a
preventive measure; it cannot be considered as punitive in nature
but the same is required as a measure of precaution to prevent the
mischief to the community at large, on the reasonable probability of
suspicion and anticipation of the mischief, which the detenue may
commit, if he is let free considering his past antecedents and the
continuation of illegal activities which has created a sense of fear in
certain parts of Bengaluru city, disturbing the public order. Under
these circumstances, the detention authority rightly exercised its
power vested under the provisions of the Act 1985.
19. It is forthcoming in the grounds of detention attached to
the detention order in unnumbered paragraph No.4, onwards till
paragraph No.7, at page Nos.42 and 43 of writ petition (English
translation of Kannada in grounds of detention), which has got a
bearing on the subjective satisfaction recorded by the Detaining
Authority while passing the detention order. For easy reference, we
extract the same as under:
"Since, your child hood days, you have joined with bad
elements of your friends group and thereby developed bad
habits and started indulging in attempt to murder, assault,
HBT, preparation for committing dacoity, riots, criminal
intimidation and other such criminal activities since 2018. You
have committed offences which are punishable under law and
involved in anti-social and rowdy activities.
"You along with your associates have formed a group of your
own and armed with lethal weapons and prowling on public
places, thereby creating fear in the minds of general public
and involved in the criminal and anti-social activities rowdy
activities. Despite, you were arrested and released on court
bail, you have not reformed yourself and continued in criminal
and rowdy activities, you have violated the bail conditions
imposed while granting bail. You have developed attitude of
obstructing the trial so that the trial may not be conducted in
free and fair manner. You have caused immense
apprehension in the minds of the general public.
In order to keep close surveillance to control your criminal
activities and also to prevent you from indulging in the
criminal activities, "A" category rowdy sheet was opened
against you in K.G.Nagar Police Station on 13.12.2023 vide
order No.CC/300/ACP-05/2023, dated 13.12.2023 of ACP V V
Puram sub division and presently 'A' rowdy sheet being
maintained in Kempegowdanagar Police station, and also MOB
files are maintained in the criminal cases where you had
arrested.
It is found that it is not possible to prevent your criminal and
anti-social activities, with the ordinary course of law.
Therefore, it is expedient to initiate action under Section 3(1)
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.
20. The Hon'ble Apex Court in its latest pronouncement in the
case of Ameena Begum supra after considering the entire facts of
the case, at paragraph Nos.27 and 28, has explained the
circumstances and the test to determine the legality of the order of
the preventive detention. The same reads as under:
"27. Be that as it may, culling out of the Principles of law
flowing from the relevant decisions in the field, our
understanding of the law for deciding the legality of an
order of preventive detention is that even without
appropriate pleadings to assail such an order, if
circumstances appear there from raising a doubt of the
detaining authority misconceiving his own powers, the
Court ought not to shut its eyes; even not venturing to
make any attempt to investigate the sufficiency of the
materials, an enquiry can be made by the Court into the
authority's notions of his power. Without being remotely
concerned about the sufficiency or otherwise of the
materials on which detention has been ordered, the Court
would be justified to draw a conclusion, on proof from the
order itself, that the detaining authority failed to realise
the extent of his own powers. This is quite apart from
questioning the action for want of sufficient materials that
were before the detaining authority. The authority for the
detention is the order of detention itself, which the detenu
or the Court can read. Such a reading of the order would
disclose the manner in which the activity of the detenu was
viewed by the detaining authority to be prejudicial to
maintenance of public order and what exactly he intended
should not be permitted to happen. Any order of a
detaining authority evincing that the same runs beyond his
powers, as are actually conferred, would not amount to a
valid order made under the governing preventive detention
law and be vulnerable on a challenge being laid.
28. In the circumstances of a given case, a constitutional
court when called upon to test the legality of orders of
preventive detention would be entitled to examine
whether,
28.1. The order is based on the requisite satisfaction,
albeit subjective, of the detaining authority, for, the
absence of such satisfaction as to the existence of a matter
of fact or law, upon which validity of the exercise of the
power is predicated, would be the sine qua non for the
exercise of the power not being satisfied;
28.2. In reaching such requisite satisfaction, the detaining
authority has applied its mind to all relevant circumstances
and the same is not based on material extraneous to the
scope and purpose of the statute;
28.3. Power has been exercised for achieving the purpose
for which it has been conferred, or exercised for an
improper purpose, not authorised by the statute, and is
therefore ultra vires;
28.4. The detaining authority has acted independently or
under the dictation of another body;
28.5. The detaining authority, by reason of self-created
rules of policy or in any other manner not authorised by
the governing statute, has disabled itself from applying its
mind to the facts of each individual case;
28.6. The satisfaction of the detaining authority rests on
materials which are of rationally probative value, and the
detaining authority has given due regard to the matters as
per the statutory mandate;
28.7. The satisfaction has been arrived at bearing in mind
existence of a live and proximate link between the past
conduct of a person and the imperative need to detain him
or is based on material which is stale;
28.8. The ground(s) for reaching the requisite satisfaction
is/are such which an individual, with some degree of
rationality and prudence, would consider as connected with
the fact and relevant to the subject-matter of the inquiry in
of respect whereof the satisfaction is to be reached;
28.9. The grounds on which the order of preventive
detention rests are not vague but are precise, pertinent
and relevant which, with sufficient clarity, inform the
detenu the satisfaction for the detention, giving him the
opportunity to make a suitable representation; and
28.10. The timelines, as provided under the law, have
been strictly adhered to."
21. We have examined the order passed by the Detaining
Authority, the approval and the extension of the same by the
Government vide Annexures-A, B and C respectively. It is manifestly
clear from the reading of the order of detention and the grounds
attached to the same, that the Detaining Authority considered all the
past antecedents and the continuing illegal activities on the basis of
the reports, the conduct of the detenue in slowing the trials
commenced against him in various cases, jumping over bail,
threatening witnesses has recorded a clear subjective satisfaction
while passing the order of detention, which we have already
extracted hereinabove. A mere delay in passing the preventive
detention order will not make an order bad and vitiated. There is a
proximate link between the grounds and the order of detention. So
far as non-mentioning of specific time is concerned it is not a criteria
to hold an order as invalid, as the hyper technical grounds would not
over-weigh the public order and safety.
22. The learned counsel appearing for the petitioner fairly
concedes that there is no time frame fixed in the provisions,
contained in Act 1985. As could be seen from the records placed
before us, the detenue has admitted service of the detention order
and supply of documents on which the order is founded on the same
day before the Advisory Committee. He has submitted his
representation on 10.02.2025, which has been considered and
rejected by the higher authority recording their reason for the same.
23. It is a trite law that the Court while in judicial review on
the detention orders are not expected to subscribe its view on to the
subjective satisfaction recorded by the authorities as the orders
passed are not susceptible to the objective determination. Rather
the provision says that it is the subjective satisfaction as the
preventive detention is largely precautionary and based on
suspicion. As could be seen from the provisions of Act 1985, which
enjoins the Authority, the power to pass an order, which is
preventive in nature, as the words used especially in sub-section (1)
and (2) of Section-3, are 'if satisfied' this manifestly imports
subjective satisfaction on the part of Detaining Authority before an
order of detention can be made. This being the nature of the
proceedings, it is impossible to conceive how it can be possibly
regarded as objective assessment, which has been contended and
argued on behalf of the petitioner, as the determination is left by the
legislature to the subjective satisfaction of the Detaining Authority,
which by reasons of its special position, and expertise is best suited
to decide in the peculiar facts and circumstances of the case, after
verifying the documents of the case. This being the intent of
Legislature, the Court cannot be invited to consider the propriety or
sufficiency of grounds on which the satisfaction of the Detaining
Authority is based. The Court cannot on a review of the grounds
subscribe its own opinion for that of the Detaining Authority, as the
provision says, it is subjective satisfaction of the Detaining
Authority, which is relevant unless such satisfaction is arrived at
without any basis / evidence. It follows it does not mean that the
subjective satisfaction recorded by the Detaining Authority is wholly
immune from judicial review. The order of recording subjective
satisfaction is therefore, on the anvil of material is there on record
to arrive at the decision for preventive detention.
24. We are satisfied that the Detaining Authority has taken
care of all the judicial pronouncements of the Hon'ble Apex Court as
well as this Court and applied its mind on the documents placed
before it, considered the case as per the mandate of statute under
which it has exercised its power in a reasonable manner and found
that there is rationale in the material placed before it to come to a
conclusion that there exists grounds and reasons for the detention
of the detenue so as to prevent any breach of public order. The
orders approving the same and extension to the maximum period by
the Government, found to be based on the grounds stated in the
order of detention.
25. The Hon'ble Apex Court in the case of DIMPLE HAPPY
DHAKAD supra in paragraph Nos.43 to 46 has held that the
personal liberty of an individual has to be subordinated within the
reasonable bounds to the good of the people. Order of detention is
clearly a preventive measure and device to afford protection to the
society. When the preventive detention is aimed to ensure the
safety and security and a balance has to be struck between the
liberty of an individual and the needs of the society, the same is
liable to be upheld. Paragraphs Nos.43 to 46 of the judgment are
reproduced as under:
"43. The learned Senior Counsel for detenus submitted that
personal liberty and compliance of procedural safeguards are
the prime consideration and since the procedural
requirements are not complied with violating the personal
liberty of the detenus, the High Court rightly quashed the
detention orders and the same cannot be interfered with. As
discussed earlier, in the case in hand, the procedural
safeguards are complied with. Insofar as the contention that
the courts should lean in favour of upholding the personal
liberty, we are conscious that the Constitution and the
Supreme Court are very zealous of upholding the personal
liberty of an individual. But the liberty of an individual has to
be subordinated within reasonable bounds to the good of the
people. Order of detention is clearly a preventive measure
and devised to afford protection to the society. When the
preventive detention is aimed to protect the safety and
security of the nation, balance has to be struck between
liberty of an individual and the needs of the society.
44. Observing that the object of preventive detention is not to
punish a man for having done something but to intercept and
to prevent him from doing so, in Naresh Kumar Goyal v.
Union of India 23, it was held as under: (SCC p. 280, para 8)
"8. It is trite law that an order of detention is not a curative or
reformative or punitive action, but a preventive action,
avowed object of which being to prevent the antisocial and
subversive elements from imperilling the welfare of the
country or the security of the nation or from disturbing the
public tranquillity or from indulging in smuggling activities or
from engaging in illicit traffic in narcotic drugs and
psychotropic substances, etc. Preventive detention is devised
to afford protection to society. The authorities on the subject
have consistently taken the view that preventive detention is
devised to afford protection to society. The object is not to
punish a man for having done something but to intercept
before he does it, and to prevent him from doing so."
45. Considering the scope of preventive detention and
observing that it is aimed to protect the safety and interest of
the society, in State of Maharashtra v. Bhaurao Punjabrao
Gawande24, it was held as under: (SCC p. 629, paras 36-37)
"36. Liberty of an individual has to be subordinated, within
reasonable bounds, to the good of the people. The framers of
the Constitution were conscious of the practical need of
preventive detention with a view to striking a just and delicate
balance between need and necessity to preserve individual
liberty and personal freedom on the one hand and security
and safety of the country and interest of the society on the
other hand. Security of State, maintenance of public order
and services essential to the community, prevention of
smuggling and black marketing activities, etc. demand
effective safeguards in the larger interests of sustenance of a
peaceful democratic way of life.
37. In considering and interpreting preventive detention laws,
courts ought to show greatest concern and solitude in
upholding and safeguarding the fundamental right of liberty of
the citizen, however, without forgetting the historical
background in which the necessity an - unhappу necessity -
was felt by the makers of the Constitution in incorporating
provisions of preventive detention in the Constitution itself.
While no doubt it is the duty of the court to safeguard against
any encroachment on the life and liberty of Individuals, at the
same time the authorities who have the responsibility to
docharge the fonctions vested in them under the law of the
country should not be impeded or interfered with without
justification (vide A.K. Roy v Union of India, Bhut Nath Mete
v. State of W.D., State of W.B. v. Ashok Dey and ADM,
Jabalpur v. Shivakant Shukla)."
(emphasis supplied)
46. 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 kg 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. The detaining authority also satisfied that the detenus
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 detenus, the detaining
authority satisfied itself as to the detenus' continued
propensity and their inclination to indulge in 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
detenus from smuggling goods. The High Court erred in
interfering with the satisfaction of the detaining authority and
the impugned judgment¹ cannot be sustained and is liable to
be set aside.
26. Having considered the Judicial pronouncements supra in
the peculiar facts and circumstances of the case, we are of the view
that the orders challenged in the writ petition, does not suffer from
any infirmities as such, the same do not call for any interference at
the hands of this Court. Accordingly, the writ petition fails is
dismissed.
27. No order as to costs.
Sd/-
(V KAMESWAR RAO)
JUDGE
Sd/-
(T.M.NADAF)
JUDGE
MH/JJ
