Karnataka High Court
Shaikh Feroz @ Babbu S/O Shail Mansoor vs The State Of Karnataka And Ors on 1 April, 2015
Bench: Ravi Malimath, R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
ON THE 1ST DAY OF APRIL, 2015
PRESENT
THE HON'BLE MR.JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE BUDIHAL R. B.
W.P.H.C. NO.200005/2015
BETWEEN
SHAIKH FEROZ @ BABBU S/O SHAIL MANSOOR
AGE: 33 YEARS, OCC: PETTY BUSINESS,
REPRESENTED THROUGH HIS ELDER BROTHER
SHAIKH TOFEEQ S/O SHAIKH MANSOOR
AGE: 32 YEARS, OCC: AUTO DRIVER,
R/O : MULTANI COLONY, BIDAR-5854101
... PETITIONER
(BY SRI AVINASH A. UPLOANKAR, ADV.)
AND
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS UNDER SECRETARY
(LAW & ORDER), HOME DEPARTMENT,
VIDHANA SOUDHA, BANGALORE-01
2. DEPUTY COMMISSIONER
AND DISTRICT MAGISTRATE,
BIDAR-585401
2
3. SUPERINTENDENT OF POLICE,
BIDAR-585401
... RESPONDENTS
(BY SRI P. VILASKUMAR, GA)
THIS WPHC IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE
DIRECTION OR ORDER IN THE NATURE OF CERTIORARI
QUASHING THE ORDER OF RESPONDENT No.2 BEARING
ORDER No. RRB / MAG / CR-41 / 2014-15 DATED 29.09.2014
UNDER SECTION 3 OF THE KARNATAKA PREVENTION OF
DANGEROUS ACTIVITIES OF BOOTLEGGERS, DRUG
OFFENDERS, GAMBLERS, GOONDAS, IMMORAL TRAFFIC
OFFENDERS AND SLUM GRABBERS ACT 1985 (KARNATAKA
ACT No.12/1985) AND FURTHER IT IS CONSIDERED BY THE
STATE ADVISORY COMMITTEE BEARING ORDER No. HD
486 SST 2014 DATED 10.11.2014 AND FURTHER THE STATE
ADVISORY COMMITTEE CONFIRMING THE SAME ORDER
BEARING No. HD 486 SST 2014 DATED 26.12.2014 TO DETAIN
THE DETENU FOR PERIOD OF TWELVE MONTHS, WHICH
IS AT ANNEURE 'A' 'B' AND 'C', IN THE INTEREST OF
JUSTICE.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, RAVI MALIMATH J., MADE THE
FOLLOWING:
ORDER
The petitioner is the brother of the detenue. The detenue is a petty businessman. The respondent having formed an opinion that the detenue having involved himself in various 3 criminal cases lodged against him and is habitually indulging in Matka etc., which is also the gambling, the order of detention was passed against him. While passing the order of detention, the various criminal cases were also taken into consideration by the Detaining Authority. The said Detaining Authority has passed the order under Sections 3(1), 8 of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug offenders, Gamblers, Goondas, Immoral Traffic offenders and slum Grabbers Act, 1985 (for short 'Act'). Hence, the present petition is filed.
2. We have considered the grounds urged in support of the contention.
3. Learned counsel for the petitioner primarily contends that even though the detenue was involved in various criminal cases, which have been lodged against him and some cases were pending, the Detaining Authority has not applied its mind, while passing the detention order. That the detenue was on bail in those cases, which have been lodged against him. The 4 detention order does not even make reference of the orders that the detenue was on bail. Therefore, there is non-application of mind. Hence, the impugned order of detention requires to be quashed. He relies on the decision of Hon'ble Supreme Court reported in AIR 2012 SC 890 in the case of Rushikesh Tanaji Bhoite Vs. State of Maharashtra and Ors.
4. On the other hand, learned counsel for the respondents defends the order of detention. The contention is that in terms of Section 3 of the Act that it is the power of the State Government to pass the order regarding detention. That on satisfaction the order of detention has been passed, since, the petitioner was involved in eight cases. There is satisfaction of the Government in passing the order of detention.
5. Heard learned counsels.
6. The question of the Government's satisfaction in terms of Section 3 of the Act is undisputed. What is to be considered here is subjective satisfaction of the Government 5 while passing the order of detention. In passing the order of detention there should be application of mind by the Government. Therefore, the Government has to apply their mind while passing the order of detention. The mere submission that in terms of Section 3 of the Act satisfaction has been arrived at based on the pending cases, is not sufficient. Subjective satisfaction also includes the consideration of the relevant material pertaining to the detenue. Such relevant materials includes the fact as to whether the detenue has been released on bail under one or the other cases or not. The Detaining Authority therefore, should take into account the factum of the release of detenue on bail. The Detaining Authority would have to narrate that even though the detenue is on bail, the detention order requires to be passed. Therefore, the satisfaction of the Government is in terms of Section 3 of the Act is not sufficient. The Hon'ble Supreme Court in the aforesaid case has considered the very issue with regard to non-consideration of the relevant material before passing the detention order wherein, it has held as follows: 6
"10. In the present case, since the order of bail dated August 15, 2010 was neither placed before the detaining authority at the time of passing the order of detention nor the detaining authority was aware of the order of bail, in our view, the detention order is rendered invalid. We cannot attempt to assess in what manner and to what extent consideration of the order granting bail to the detenu would have effected the satisfaction of the detaining authority but suffice it to say that non-placing and non-consideration of the material as vital as the bail order has vitiated the subjective decision of the detaining authority."
7. Following the said decision, since the subjective satisfaction has not been arrived at, in the absence of considering the vital orders with regard to the bail or otherwise, the order of detention requires to be quashed.
8. Hence, the petition is allowed. The order of detention vide Annexure-'A' dated 09.09.2014 passed by the District Magistrate, Bidar in No.RRB/MAG/CR-41/2014-15, Annexure-'B' dated 10.11.2014 passed by the State Advisory Committee in No.HD-486/SST/2014 and Annexure -'C' dated 7 26.12.2014 passed by the State Advisory Committee in No.HD/486/SST/2014 are quashed. The detenue shall be released on bail forthwith if he is not required in any other cases.
The Registry to transmit the operative portion of the order to the Bellary Jail Authority forthwith.
Sd/-
JUDGE Sd/-
JUDGE Srt