Karnataka High Court
Nausheena vs The State Of Karnataka on 14 March, 2017
Bench: B.S Patil, B.V.Nagarathna
-: 1 :-
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 14TH DAY OF MARCH, 2017
PRESENT
THE HON'BLE MR. JUSTICE B.S. PATIL
AND
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
W.P. (H.C.) NO.96/2016
BETWEEN:
NAUSHEENA
W/O ALTHAF,
AGED ABOUT 22 YEARS,
R/AT 18-65/41, DHARMANAGAR,
MUKKACHERI, ULLALA,
MANGALORE,
D.K. DISTRICT - 575 020. ... PETITIONER
(BY SRI: B. LETHIF, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY ITS UNDER SECRETARY,
DEPARTMENT OF HOME,
VIDHANA SOUDHA,
BANGALORE - 560 001.
2. THE COMMISSIONER OF POLICE,
MANGALORE CITY,
D.K. DISTRICT - 575 001.
3. THE SUPERINTENDENT OF PRISON,
KALBURGI CENTRAL PRISON,
KALBURGI. ... RESPONDENTS
(BY SRI: THARANATH I. POOJARY, ADDL. GOVT. ADVOCATE)
*****
THIS WP (HC) IS FILED UNDER ARTICLES 226 AND 227
OF INDIAN CONSTITUTION OF INDIA PRAYING TO BY THE
ADVOCATE FOR THE PETITIONER PRAYS THAT THE HON'BLE
HIGH COURT BE PLEASED TO ISSUE - A) A WRIT IN THE
-: 2 :-
NATURE OF CERTIORARI BY QUASHING OF THE ORDER OF
DETENTION DATED 23.04.2016 PASSED BY RESPONDENT NO.2
IN NO.MAG/101/MGC/2016 PRODUCED AT ANNEXURE-A AND
ANNEXURE A1 AND ETC.
THE JUDGMENT IN THIS PETITION HAVING BEEN
RESERVED ON 13/02/2017 AND IT BEING LISTED FOR
PRONOUNCEMENT TODAY, COURT PRONOUNCED THE
FOLLOWING:
ORDER
Petitioner is the wife of the detenue - Althaf, s/o.Abdul Khader. He has been detained under the provisions of Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum- Grabbers Act, 1985 (hereinafter called as the "Act" for the sake of brevity).
2. The second respondent - Commissioner of Police, Mangalore City, has passed the order of detention on 23/04/2016 and the Kannada translation of the said order was furnished to the detenue on the same date vide Annexure "A" and "A-1" respectively. The grounds of detention along with its Kannada translation were furnished to the detenue and they are at Annexure "B" and "B-1" respectively. The detention -: 3 :- was approved by the State Government by order dated 30/04/2016 vide Annexure "C".
3. In a nutshell, it is stated in the grounds of detention that the detenue is involved in several criminal activities within the limits of Ullala Police Station, D.K. Dist., damaging Government property, obstructing the police from discharging their duties by causing injuries, committing acts of kidnapping, extortion, dacoity and attempt to murder in collusion with anti-social elements. As a result, Ullala Police has opened a rowdy sheet against the detenue on 14/05/2010. The activities of the detenue have created problems for the law abiding citizens and therefore, the provisions of the Act have been invoked against the detenue. Further, in the grounds of detention, reference has been made to Crime Nos.134/2010, 356/2013, 242/2014, 99/2016 of Ullala Police and Crime No.179/2015 of Mangalore East Police. That Crime No.179/2015 is under -: 4 :- investigation while in the first four cases, charge sheets have been filed and the trial is under progress.
4. The detenue is in judicial custody from 22/03/2016 in Crime No.99/2016. It is stated that in case the detenue obtains bail in the aforesaid case also and if he is released, he would continue his criminal activities which are detrimental to the maintenance of public order. As the ordinary laws have failed to control his criminal tendencies it has become imperative to detain him under the Act.
5. The order of detention which was approved by the State Government on 30/04/2016 was served on the detenue on 02/05/2016 along with the relevant documents in the form of a paper book at Kalaburagi Central Prison. According to the petitioner, along with the order of approval, certain documents have been annexed, which are illegible, as a result, the detenue was unable to make an effective representation. However, the detenue gave a representation to the State Advisory Board through the Superintendent of -: 5 :- Prison on 04/05/2016 as per Annexure "E". Petitioner, being aggrieved by the order of detention dated 23/04/2016 as well as the order of approval dated 30/04/2016 passed on her husband, has approached this court challenging the same on various grounds.
6. Statement of objections has been filed to the writ petition as also additional affidavit along with certain documents, contending that the order of detention is legal and justified.
7. Petitioner's counsel has filed a memo dated 28/10/2016 enclosing endorsement dated 25/04/2016, issued by the State Government.
8. We have heard learned counsel for the petitioner and learned Addl. Government Advocate (A.G.A.) for and on behalf of the State and perused the material on record.
9. Learned counsel for the petitioner has urged certain contentions while assailing the order of detention. He has drawn our attention to five cases -: 6 :- mentioned in the grounds of detention. That in the first four cases namely, Crime Nos.134/2010, 356/2013, 242/2014 and 179/2015, the detenue has been granted bail and that in Crime No.99/2016 the case is under investigation, but he is in judicial custody. That in respect of the four cases where bail has been granted, the detaining authority has not supplied the copy of the bail order passed in Crime No.242/2014. The detaining authority was also not quite aware of the fact that the detenue had been granted bail in the aforementioned case. He next contended that Annexure "F" is a corrigendum issued to the detention order dated 26/04/2016 which was served on the detenue only on 29/04/2016 and the order of detention has been approved on 30/04/2016.
10. Learned counsel for the petitioner further submitted that legible copies of certain documents relied upon by the detaining authority have not been supplied to the detenue. In particular, he drew our attention to Page Nos.51, 54, 58, 95, 99, 160, 168, -: 7 :- 195, 201 and 218 of the memorandum of writ petition to contend that in the absence of legible copies, the petitioner has not been able to make an effective representation to the State Government or to the State Advisory Board. He further contended that representation made to the State Government on 04/05/2016 and the Advisory Board on 05/05/2016 have not been considered and an endorsement has been issued having regard to the opinion given by the State Advisory Board and there has been no independent consideration of the representation. It is the further contention of petitioner's counsel that translated copies of the bail orders, order sheets in the criminal cases have not been supplied to the detenue who knows only Kannada language and as a result, the detenue has been disabled from making an effective representation.
11. Relying on several judgments of the Hon'ble Supreme Court as well as this court, petitioner's counsel contended that the order of -: 8 :- detention is illegal and a nullity and therefore, the same may be quashed and detenue may be released forthwith.
12. Per contra, learned Addl. Govt. Advocate appearing for the State with reference to his statement of objections has supported the order of detention by placing reliance on several judgments of the Supreme Court as well as this court. He submitted that there is no merit in the writ petition and the same may be dismissed.
13. Having heard learned counsel for parties, we shall consider the aforesaid contentions raised by the petitioner's counsel in seriatim. We have perused the detention order dated 23/04/2016 as well as the grounds of detention carefully. In the grounds of detention, the second respondent has referred to five cases namely, Crime Nos.134/2010, 356/2013, 242/2014, 179/2015 and 99/2016 and in his opinion the aforesaid cases have been registered but bail has also been granted in those cases and that once bail is -: 9 :- granted the detenue would continue to indulge in anti social activities, which is detrimental to public order. That it is difficult to control the activities of the detenue under the ordinary law and hence, the Act has been invoked.
14. As already noted, the detention order has been passed when the detenue is in judicial custody in respect of Crime No.99/2016. The apprehension in the mind of the detaining authority is that there is a likelihood that the detenue would be released on bail in respect of that case also and would continue to indulge in criminal activities which would disturb the peace and tranquility in the locality which would be detrimental to public order.
15. Petitioner's counsel has firstly contended that though the detaining authority has mainly referred to bail being granted in various cases to the detenue, but the copy of the bail order granted in Crime No.242/2014 has not been placed before the detaining authority nor furnished to the detenue. That -: 10 :- there is reference to the grant of bail in earlier cases but not in Crime No.242/2014 and hence, the order of detention is vitiated. This contention is rebutted by learned Addl. Govt. Advocate to the effect that it is not necessary to specifically refer to the bail granted in each of the cases and that when the bail has been obtained by the detenue and the said order is already in his knowledge, it was not necessary to have furnished a copy of the order granting bail to the detenue. Reliance has been placed on several judgments of the Hon'ble Supreme Court in this regard in order to buttress the respective contentions.
16. Petitioner's counsel has relied upon the following judgments in order to contend that the bail order passed in Crime No.242/2014 was not placed before the detaining authority and further, the bail orders granted in other cases were not served on the detenue in the language known to him and hence, the detention is illegal:-
-: 11 :-
(a) In T.V.Saravanan alias S.A.R.Prasanna Venkatachaariar Chaturvedi vs. State, through Secretary and another [AIR 2006 SC 1462], the Hon'ble Supreme Court held that the bail applications moved by the detenue therein had been rejected by the Sessions Court as well as the High Court and there was no material whatsoever to apprehend that he was likely to move a bail application or that there was imminent possibility of the prayer of bail being granted. Thus, there was no cogent material before the detaining authority on the basis of which, it could have been satisfied that the detenue was likely to be released on bail. The order of detention in that case was passed twelve days after the dismissal of the bail application by the High Court. There was nothing on record to show that the detenue had made any preparation for filing a bail application or any other bail application had actually been filed, which had to come up for consideration. In the aforesaid circumstances, it was held that the order of detention was illegal. In our view, the aforesaid facts do not -: 12 :- exist in the instant case, as the detenue herein has been repeatedly granted bail which is a factor considered by the detaining authority while passing the order of detention by apprehending that once out on bail, the detenue would continue to indulge in criminal activities.
(b) In Rekha vs. State of Tamil Nadu through Secretary to Government and another [(2011) 5 SCC 244], the Hon'ble Supreme Court has opined that where a detention order is served on a person already in jail, there would be a real possibility of release of a person on bail, who is already in custody, provided he has moved an application which is pending. It follows that if no application is pending, then there is no likelihood of a person being released on bail and hence, the detention order would be illegal. However, according to the Hon'ble Supreme Court, there can be an exception to this rule and that is, where a co-accused whose case stands on the same footing has been granted bail. In such cases, -: 13 :- the detaining authority can conclude that the detenue would be released on bail even though no bail application of his is pending as on the date of order of detention, since courts normally grant bail on the ground of parity. However, details of such alleged similar cases must be given otherwise the bald statement of the authority cannot be believed. In the instant case, the grounds of detention clearly state that for identical offences charged against the detenue, bail has been granted repeatedly.
(c) The aforesaid cases have been relied upon in Rushikesh Tanaji Bhoite vs. State of Maharashtra and others [(2012) 2 SCC 72], wherein the Hon'ble Supreme Court has stated that the detention order or the grounds supplied to the detenue do not show that the detaining authority was aware of the bail order granted in favour of the detenue prior to the passing of the detention order. It was held that when such a bail application was not placed before the detaining authority, then there -: 14 :- would be no proper satisfaction reached in the matter.
In the above circumstances, the order of detention was held to be bad and was set aside.
The aforesaid facts do not exist in the instant case, as the detaining authority is aware of the bail orders.
(d) In Hadibandhu Das vs. District Magistrate, Cuttack and another [AIR 1969 SC 43], the facts were that the grounds in support of the order served on the detenue referred to his activities over a period of thirteen years and to large number of court proceedings concerning him and his other associates. It was held that mere oral explanation of a complicated order made against the detenue therein without supplying him the translation in script and language which he understood would amount to denial of right being communicated to the grounds and of being afforded opportunity of making representation against the order. The aforesaid facts do not arise in the instant case and hence, the aforesaid judgment -: 15 :- would not be of much assistance to the petitioner herein.
(e) Petitioner's counsel has relied upon the order passed in W.P.HC.97/2015 dated 07/08/2015 in the case of Smt.P.Vijayalakshmi vs. Commissioner of Police and others, in the context of non- furnishing of translated copies to the detenue along with the grounds of detention. In that case, on facts, it was held that certain documents were either in English or a portion of such pages were in English language. The detenue therein knew only Kannada and Telugu languages. The State Government had not contended that those documents which were in English were not relied upon by the detaining authority while passing the order. That the detaining authority did not choose to furnish Kannada translation of English documents to the detenue along with the grounds of detention. That as the English documents which were relevant and relied upon were not translated into Kannada or Telugu and supplied to -: 16 :- detenue therein along with the grounds of detention, it was held that he could not make an effective representation. The said order however, is not applicable to the present case.
17. It is noted that the detaining authority was aware of the fact that in three out of five cases, the detenue had been granted bail but in only one case, namely, Crime No.242/2014, the bail order was not placed before the detaining authority. In fact the order of detention categorically states that after coming out on bail, the detenue would repeatedly indulge in criminal or anti-social activities, which are detrimental to public order. Therefore, the repeated criminal activities, in respect of the cases which are pending and bail orders being obtained in the said cases, leading to further criminal activities being committed by the detenue, is one of the important factors, which has led to the detention order being passed by the detaining authority even though the detenue was under judicial custody at the time of -: 17 :- passing of the order of detention. The apprehension expressed in the ground of detention is that in case a bail order is obtained in Crime No.99/2016 also, in respect of which the detenue was in judicial custody, then he would continue to indulge in activities detrimental to public order while facing trial. In the aforesaid circumstances, the order of detention was passed.
Thus, the circumstances under which impugned order is passed in the instant case is quite different from the cases referred to above.
18. The following decisions, have been relied upon by learned Addl. Government Advocate:-
(a) In Abdul Sathar Ibrahim Manik vs. Union of India and others [(1992) 1 SCC 1], the summary of conclusions laid down therein would clearly indicate that the question of non-application of mind does not arise as long as the detaining authority was aware of the fact that the detenue was in judicial -: 18 :- custody. Whether the detenue had moved for bail and whether the bail had been granted or refused and copies being not supplied before the detaining authority would not amount to suppression of relevant material.
(b) Similarly, in Radhakrishnan Prabhakaran vs. State of Tamil Nadu [(2000) 9 SCC 170], it has been clearly stated that there is no legal requirement that a copy of every document mentioned in the order shall invariably be supplied to the detenue. What is important is that copies of only such of those documents as has been relied upon by the detaining authority for reaching the satisfaction that preventive detention of detenue is necessary, shall be supplied to him. In that case, it was held that a prior order rejecting bail would be of no relevance when it was later succeeded to by an order granting bail and therefore, the order rejecting the bail was not a document which had to be supplied to the detenue. -: 19 :-
(c) In Sunila Jain vs. Union of India and another [(2006) 3 SCC 321], the Hon'ble Supreme Court has observed that there is no universal rule that irrespective of the facts and circumstances of the case it would be imperative to place all applications for bail as also the orders passed thereupon before the detaining authority and copies thereof supplied to the detenue on the petitioner's own showing, only that part of the application for grant of bail that the offence in question is bailable, was relevant. Therefore, non-
furnishing of a copy of the application of bail cannot be said to be a ground which impaired the subjective satisfaction of the detaining authority or the same was a relevant fact which was required to be taken into consideration by him as the application for bail was required to be supplied to the detenue. It is now well settled that all the documents placed before the detaining authority are not required to be supplied; only relevant and vital documents are required to be supplied to the detenue.
-: 20 :-
In the instant case, we find that non supply of the order granting bail in Crime No.242/2016 to the detenue as the same not being placed before the detaining authority would not vitiate the order of detention. As already stated, the order of detention was passed precisely because the detenue is in the habit of indulging in criminal and anti social activities after obtaining bail in case after case, the details of which are given in the grounds of detention.
(d) Infact, in K.Varadharaj vs. State of T.N. and another [(2002) 6 SCC 735], it has been stated that placing of the application for bail and the order made thereon are not always mandatory and such requirement would depend upon the facts of each case.
(e) Similarly, in L.M.S.Ummu Saleema vs. B.B.Gujaral and another [(1981) 3 SCC 317], it has been held that unless the documents support or other materials are relied upon in the grounds of detention, it would not be mandatory to supply all -: 21 :- documents for the purpose of making an effective representation. Therefore, failure to furnish copies of documents to which reference is made in the grounds of detention is not an infringement of Article 22(5) or fatal to the order of detention. According to the Hon'ble Supreme Court, it is only failure to furnish those documents which were relied upon by the detaining authority, making it difficult for the detenue to make an effective representation that amounts to a violation of the fundamental rights guaranteed by Article 22(5).
In the aforesaid cases, it is held by the Hon'ble Supreme Court that when the detenue was already in jail and the bail application was made by the detenue and the order of rejection not being placed before the detaining authority would not amount to suppression of relevant material particularly, when the detaining authority was aware of the actual custody of the detenue. That is exactly the position in the instant case, which is evident from the grounds of detention. -: 22 :-
19. In our view, non placing of the bail order granted in Crime No.242/2014 before the detaining authority and not serving the said copy to the detenue is not fatal to the order of detention in the instant case for the simple reason that, the detaining authority being aware of the fact that the detenue was repeatedly committing crime after obtaining bail in successive cases had passed the order of detention although he was in judicial custody in respect of Crime No.99/2016. The apprehension in the mind of the detaining authority was that he may obtain bail even in Crime No.99/2016 just as in four other cases and continue his anti-social activities, which are detrimental to public order while facing trial. Therefore, we do not find any substance in the aforesaid contention.
20. As far as the argument regarding illegibility of certain documents are concerned, what has to be noted is the extent and nature of the illegibility and its effect on the right of representation in the context of -: 23 :- its importance or relevance in formation of subjective satisfaction for detention vide Union of India vs. Mohammed Ahmed Ibrahim and others [1993 supp. (1) SCC 405].
21. Petitioner's counsel has placed reliance on Bhupinder Singh vs. Union of India and others [(1987) 2 SCC 234], to contend that when illegible copies were supplied to the detenue therein, the right of making representation was denied, which was an infraction of Article 22(5) of the Constitution. In that case, the Hon'ble Supreme Court noted that before legible copies were supplied to the detenue, the detention order was confirmed and hence, the detenue therein was denied the opportunity of making a representation and there was a clear contravention of the right guaranteed under Article 22 of the Constitution.
22. As already noted above, we have to consider the extent of legibility or illegibility of Page Nos.50, 51, 54, 58, 95 to 99, 165, 195, 201 and 218 -: 24 :- of the writ petition and as to how it has affected the right of representation in the instant case. On perusal of the aforesaid documents, it is noted by us that the said documents are not totally illegible, they are in lighter ink but readable and hence, legible. Therefore, we do not find any substance in this contention also.
23. It was faintly argued that Annexure "F", which is a corrigendum dated 26/04/2016 was served on the detenue on 29/04/2016 but the said corrigendum which was to correct the typographical error in the order of detention at Page No.4 to the effect that the date "24/02/2015" must read as "23/04/2016" being belatedly served on the detenue affected his right of making an effective representation.
24. The next contention raised by petitioner's counsel was regarding representation made by the detenue to the State Government not being considered and the endorsement merely stating that as the Advisory Board had confirmed the order of -: 25 :- detention, there was nothing further which could be done in the matter, was illegal on account of there being non application of mind.
25. In this context, petitioner's counsel relied upon Jayanarayan Sukul vs. State of West Bengal [1970 (1) SCC 219], wherein the Hon'ble Supreme Court at Paragraph No.20 has broadly stated that four principles are to be followed in regard to representation of detenues. They are, first, the appropriate authority is bound to give an opportunity to the detenue to make a representation and to consider the representation of the detenue as early as possible. Secondly, the consideration of the representation of the detenue by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenue by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to the measure of time taken by the -: 26 :- appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State. Fourthly, the appropriate Government has to exercise its opinion and judgment on the representation before sending the case along with the detenue's representation to the Advisory Board. If the appropriate Government will release the detenue, the Government will not send the matter to the Advisory Board. If, however, the Government would not release the detenue then, Government will send the case along with the detenue's representation to the Advisory Board. If, thereafter, the Advisory Board would express an opinion in favour of release of the detenue the Government will release the detenue. If the Advisory Board would express any opinion against the release of the detenue the Government may still exercise the power to release the detenue. In that case, it was held that the State of West Bengal had inordinately delayed consideration of the representation by not -: 27 :- putting of the same till the receipt of the opinion of the Advisory Board and there was no explanation for the said inordinate delay. In the circumstances, petition was allowed and the petitioner therein was set at liberty.
26. In the context of the corrigendum issued by the detaining authority with regard to typographical error which had occurred in the grounds of detention, petitioner's counsel relied upon Sukerti Virendra Sood vs. State of Maharashtra [1996 (3) Crime 75]. In that case, there was a grave infirmity in the order of detention which required the corrigendum being issued. The Bombay High Court observed that the detaining authority had ignored the difference between psychotropic substance and narcotic drugs when the Act separately defines the same and hence, held that the original order of detention was casual and careless.
27. But in the instant case, the typographical error in the order of detention with regard to the date -: 28 :- which would not imply that there was non-application of mind while passing the order of detention so as to vitiate the same. Thus, where only a typographical error with regard to the date on which the detenue has been taken into judicial custody in Crime No.99/2016 has been corrected. In Paragraph No.5 of the detention order, it is stated as "22/04/2015"
whereas it should read as "23/04/2016". Therefore, the aforesaid judgment would not further the case of the petitioner.
28. Further, in the instant case, it is noted that petitioner had made a representation to the Advisory Board on 04/05/2016 and he gave a similar representation to the State Government on 06/05/2016. By then, Advisory Board had given its opinion confirming the order of detention on 05/05/2016. An endorsement was issued on 24/05/2016, stating that the Advisory Board had given its opinion on 05/05/2016 and therefore, the representation did not require any further -: 29 :- consideration. In fact, that is the second endorsement. On perusal of the same, at Page No.278 of the writ petition, it is noted that earlier, on 17/05/2016 an endorsement had already been issued which is at Page No.285 of the writ petition vide Annexure "R-3", which has been produced along with the additional affidavit vide Annexure "R-1 to R-3", by learned A.G.A. On perusal of the same, it becomes clear that the State Government has considered each of the points raised in the representation dated 06/05/2016 made to the State Government as well as the representation given on 07/05/2016 to the Chief Superintendent, Kalaburagi, which was received on 11/05/2016. The said endorsement has answered the points raised by the detenue. Therefore, it cannot be held that the second endorsement dated 24/05/2016 was given without application of mind.
29. It is next contended that translated copies of the bail orders and the order sheets pertaining to the cases referred to in the grounds of detention were -: 30 :- not supplied to the detenue, in Kannada language and therefore, the order of detention is vitiated as he was unable to make an effective representation. In this regard, reliance has been placed on the judgment reported in Hadibandhu Das vs. District Magistrate, Cuttack and another [AIR 1969 SC 43]. But the facts in the present case are totally different to the facts stated therein. More over, bail orders are in favour of the detenue. Those orders were passed at his instance by the Sessions Court. The order sheet maintained in various cases pertain to the detenue herein. He is aware of the said orders. Therefore, it cannot be held that any prejudice has been caused to the detenue on account of the translated copies of bail orders and the order sheets in various cases not being furnished to the detenue.
30. In Devi Vallabhbhai Tandel vs. Administrator of Goa, Daman & Diu and another [(1982) 2 SCC 222], the facts were that the order reciting Section 3(1) of COFEPOSA Act were served in -: 31 :- English to the detenue therein but the grounds of detention together with basic materials were served along with the order, in the language known to the detenue namely, Gujarati. On the aforesaid facts, it was held that it cannot be said that the detenue was in anyway handicapped in submitting his representation or there had been any violation of Article 22(5) of the Constitution. In the instant case also, the detention order, grounds of detention and all other documents relied upon have been translated into Kannada and served on the detenue. Therefore, there is no infraction in that regard.
31. In Sitthi Zuraina Begum vs. Union of India and others [(2002) 10 SCC 448], it was held that when a document had been filed by the detenue himself [Customs declaration card in the said case], non furnishing of Tamil translation of the same did not result in any non-compliance when the document was not one of which he had no knowledge of and hence, translation of such a document was not necessary, as -: 32 :- it would not in any way vitiate the mandate of Article 22(5) of the Constitution. The said decision squarely applies to the present case.
32. Learned Addl. Govt. Advocate has contended that even if a person is liable to be tried in a criminal court for the commission of a criminal offence, would not by itself debar the Government from taking any action under the Act. He drew our attention to the principles which have been culled out from various judicial dicta in the case of Haradhan Saha vs. The State of West Bengal and Others [(1975) 3 SCC 198], which could be extracted as under:-
"(vii) The principles which emerge from the judicial decisions can broadly be stated as follows:
First, merely because a detenue is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself -: 33 :- debar the Government from taking action for his detention under the Act.
Second, the fact that the Police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention.
Third, Where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order.
Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order.-: 34 :-
Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances."
33. Learned Addl. Govt. Advocate has also placed reliance on judgment of the Hon'ble Supreme Court in case of Gautam Jain vs. U.O.I and Anr.
[Criminal Appeal No.2281 of 2014], to contend that once it is found that the detention order contains many grounds even if one of them is to be rejected, the principles of severability contained in Section 6-A of the Act would get attracted and the order of detention could be sustained on other grounds.
34. Kamarunnisa vs. Union of India and another [AIR 1991 SC 1640], is a case which arose under COFEPOSA wherein, it has been observed that in the case of a person in custody, a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in -: 35 :- custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher court.
35. We, thus, find no substance in any of the contentions raised by the petitioner in the instant case.
36. There being no other contention raised, the writ petition being devoid of merit is dismissed.
Sd/-
JUDGE Sd/-
JUDGE *mvs