Karnataka High Court
Naveed vs The State Of Karnataka on 18 September, 2024
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF SEPTEMBER, 2024
PRESENT
THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
WPHC NO.68 OF 2024
BETWEEN
NAVEED,
S/O KAREEM ,
AGED ABOUT 28 YEARS ,
R/AT: NO.6-314/69,
MATADAGUDDE HOUSE,
MULURU,
DAKSHINA KANNADA - 574 145.
...PETITIONER
(BY SRI. LETHIF.B, ADVOCATE)
AND
1 . THE STATE OF KARNATAKA
BY ITS SECRETARY,
DEPARTMENT OF HOME,
VIDHANA SOUDHA,
BANGALORE - 560 001.
2 . THE COMMISSIONER OF POLICE,
MANGALORE CITY,
DAKSHINA KANNADA DISTRICT,
MANGALORE - 575 001.
2
3 . THE SUPERINTENDENT OF PRISON,
PARAPPANA AGARAHARA,
CENTRAL JAIL,
BENGALURU - 560 100.
4 . THE SUPERINTENDENT OF PRISON
DISTRICT PRISON,
MANGALORE,
D.K DISTRICT - 575 001.
...RESPONDENTS
(BY SRI. BELLIAPPA, SPP-I FOR
SRI. ANOOP KUMAR, HCGP FOR R1)
THIS WPHC IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO A WRIT IN
THE NATURE OF HABEAS CORPUS BY QUASHING OF THE
ORDER OF DETENTION DATED 19.03.2024 PASSED BY
RESPONDENT NO.2 IN NO.MAG-1/3/MGC/2024, WHICH IS
PRODUCED AT ANNEXURE-A AND ANNEXURE-A1.
THIS WPHC HAVING BEEN RESERVED FOR ORDERS,
COMING ON FOR PRONOUNCEMENT THIS DAY, RAJESH
RAI.K, J., MADE THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE V KAMESWAR RAO
and
HON'BLE MR JUSTICE RAJESH RAI K
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CAV ORDER
(PER: HON'BLE MR JUSTICE RAJESH RAI K)
The petitioner, in this writ petition, has assailed the
order of detention dated 19.03.2024 passed by respondent
No.2 bearing No.MAG-1/3/MGC/2024, subsequent approval
order dated 26.03.2024 bearing No.HD 129 SST 2024 and
confirmation order dated 22.04.2024 bearing No.HD 129 SST
2024 passed by respondent No.1.
2. Petitioner, who is the brother of one Sri. Nawaz
(hereinafter referred to as 'the detenue'), is knocking the
doors of the 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 brother of the petitoner namely Nawaz (hereinafter
called as 'detenue') alleged to be involved in criminal
activities from the year 2016 and his movements were
monitored by respondent No.2 and the sub-ordinate police
officers, accordingly, 'A' rowdy sheet was opened against him
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on 18.08.2021 at Bajpe Police Station, Mangalore. Inspite of
the same, the detenue continued his illegal acts and he is a
threat to the society as he involved in as many as 8 cases
from the year 2016 to 2023. Since the illegal activites of the
detenue was unable to control by the police with ordinary
laws, respondent No.2, based on the report submitted by the
Police Inspector of Bajpe Police Station and the Deputy
Commissioner of Police, Law and Order, Mangalore, invoked
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 (hereinafter referred as
'Goonda Act') and passed the detention order agaisnt the
detenue on 19.03.2024. Thereby, he has been arrested and
sent to Central Prison, Bengaluru by respondent No.2 and the
same has been informed to him on the same day. Later,
respondent No.2 forwarded the copy of the detention order to
the State Government i.e., respondent No.1 and respondent
No.1 approved the detention proposal of respondent No.2 on
26.03.2024. The said approval order was communciated to
the detenue on 27.03.2024. Later, on 30.03.2024,
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respondent No.2 was placed detention order before the
Advisory Board. Consequently, a meeting of the Advisory
Board was fixed on 08.04.2024. Accordingly, the detenue
was produced before the Advisory Baord along with his
representation. The Advisory board, after considering the oral
and written submisison of the detenue, confirmed the
detention order passed by respondent No.2 on 18.04.2024.
Subsequently, on 22.04.2024, respondent No.1 confirmed
the detention order and extended the detention period for
one year. The petitioner, being the brother of detenue,
aggrieved by these orders, challenged the same in this writ
petition.
4. We have heard Sri Lethif.B., learned counsel for
the petitioner and Sri B.A.Belliappa, learend SPP-I for
Sri Annop Kumar, learned HCGP for the respondents.
5. It is the primary contention of Sri Lethif.B.,
learned counsel for the petitioner that the documents served
upon the detenue along with the grounds of detention with
paper book at page Nos.189 to 203, 210 to 280 and 241 to
247 are illegible and they are not readable one. The
6
respondents are mandated to furnish the legible copies
of the documents relied by them to invoke the Goonda Act,
by enabling the detenue to submit representation as provided
under Section 8 of the Goonda Act. According to the learned
counsel, the detenue also specifically pleaded the said aspect
in his representation to respondent Nos.1 and 2. The said
plea of the detenue was affirmed and considered by the
respondents while rejecting his representation. As a matter of
fact, in the endorsement, the respondent-Authority had
directed the Police Commissioner to furnish legible copies of
the above mentioned documents to the detenue.
6. Learned counsel for the petitioner would further
contend that the respondent-Authority failed to provide the
documents relied by them to the detenue while invoking the
Goonda Act against him. The documents in paper book at
page No.382, the first page of FIR in Crime No.9/2021 and at
page No.471, the first page of FIR in Crime No.112/2023 are
missing and those are the material documents to be looked
into by the detenue to submit a effective representation. The
learned counsel contends that out of eight cases relied by
Detaining Authority against the detenue, five cases have
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been registered for the offence punishable under Section
27(b) of the Narcotic Drugs and Psychotropic Substances Act
(for short 'NDPS Act'). All those cases are punishable
maximum for a period of 6 months or fine or both. The only
case registered against the detenue for the offence
punishable under Section 302 of IPC is Crime No.330/2016.
In the said case, the detenue arraigned as accused No.5.
Moreover, he has been enlarged on bail in the said Crime by
this Court in Crl.P.No.8028/2017 dated 28.12.2017. The
respondent-Authority also failed to produce the bail order
before the Detaining Authority before passing the detention
order. Hence, without perusal of the said material document,
the detention order is passed. Lastly, he would submit that
the acts of the detenue would not come within the ambit of
'Public Order' and at the most, the same may fall under 'Law
and Order' category as per the law laid down by the Hon'ble
Apex Court in the case of Ameena Begum v. State of
Telangana and Others reported in (2023) 9 SCC 587.
With these submissions, he prays to allow the writ petition by
quashing the impugned detention order.
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7. In order to buttress his arguments, he relied
upon the following judgments of the Hon'ble Supreme Court:
(i) Rushikesh Tanaji Bhoite vs. State of
Maharastra and others reported in (2012) 2
SCC 72;
(ii) Sushantha Kumar Banik vs. State of
Tripura and others reported in 2022 SCC
OnLine SC 1333;
(iii) Shankara Gowda vs. The State of
Karnataka and others reported in ILR 2015
Kar 3312;
(iv) Rizwan Sharif vs. The State of Karnataka
and others [WPHC 113/2015];
(v) Bhupinder Singh vs. Union of India and
others reported in (1987) 2 SCC 234;
(vi) State of Manipur and others vs.
Buyamayum Abdul Hanan alias Anand and
another reported in 2022 SCC OnLine SC
1455; and
(vii) Jayamma vs. Commissioner of Police
reported in ILR 2019 Kar 1543.
8. Per contra, learned SPP Sri B.A.Belliappa for the
respondents has filed his statement of objections, similarly,
has placed the entire records along with list of authorities in
support of his case and submits that, the detention order was
passed on account of detenue being the habitual offender,
who was involved in offences affecting the public at large and
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'A' rowdy sheet was already opened against him by Bajpe
Police. In spite of the same, he continued his illegal activities.
As such, without any alternative, the impugned detention
order is being passed and the same has withstood the test of
legality before the Advisory Board. He would further contend
that the respondent-Authority provided the entire documents
to the detenue along with the detention order. Out of those
documents, though some of the pages are illegible, the same
are not relied by the respondent-Authority while invoking the
provisions of the Goonda Act. In such circumstances, those
documents need not be legible copies. As far as non-supply of
two FIR copies to the detenue is concerned, the said
documents also not relied by the respondent-Authority while
invoking the Goonda Act. Hence, non-furnishing of legible
copy and documents by itself does not vitiate the detention
order.
9. Learned SPP would also contend that the detenue
has a notorious rowdy element and he is indulged in a murder
case, wherein the deceased belongs to different community
and thereby, instigated for communal violence at Mangalore
City, which caused public disorder. Though the bail order in
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the said case was not placed before the Detaining Authority,
however, the said aspect was very much considered by
respondent No.2 while passing the detention order. In such
circumstances, there is no such illegality or procedural lapse
in the case on hand while invoking Goonda Act against the
detenue. Accordingly, the detention order withstood the test
of legality. Hence, the learned SPP prays to dismiss the writ
petition.
10. Having heard the learned counsel for the parties
and perusing the pleadings including the records made
available to this Court, the point that would arise for our
consideration is:
"Whether the order of detention dated
19.03.2024 passed by respondent No.2 bearing
No.MAG-1/3/MGC/2024, subsequent approval
order dated 26.03.2024 bearing No.HD 129 SST
2024 and confirmation order dated 22.04.2024
bearing No.HD 129 SST 2024 passed by
respondent No.1 are sustainable under law?"
11. In order to address the first limb of arugment
advanced by the learned counsel for the petitioner that the
respondent-Authority failed to provide legible copies of the
11
documents, which were served upon the detenue along with
grounds of detention is concerned, it is appropriate to refer
Section 8 of the Goonda Act, which reads as under:
"8. Grounds of order of detention to
be disclosed to persons affected by
the order- (1) When a person is detained
in pursuance of a detention order, the
authority making the order shall, as soon
as may be, but not later than five days
from the date of detention, communicate
to him the grounds on which the order has
been made and shall afford him the
earliest opportunity of making a
representation against the order to the
State Government.
(2) Nothing in sub-section (1) shall
require the authority to disclose facts
which it considers to be against the public
interest to disclose."
(emphasised supplied by us)
12. On careful perusal of Section 8 of the Goonda Act,
we find that the duty is bestowed upon the respondents to
furnish the order of detention made against the detenue
along with the entire materials which are relied upon by the
respondents to pass such order within five days, to enable the
detenue to submit effective representation to the Competent
Authority against such order of detention.
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13. It is the contention of the petitioner that the
detenue was provided with the illegible documents more
specifically in the paper book at page Nos.189 to 203, 210 to
280 and 241 to 247 to enable the detenue to give effective
representation asserting his right. The position of law in this
regard is clear as per the law laid down by the Co-ordinate
Bench of this Court in Smt. Parvathamma vs
Commissioner of Police and others in W.P.(H.C)
No.33/2022, wherein it is held that non-supply of the
legible documents/copies to the detenue withholds his rights
to make proper and effective representations before the
Advisory Board and the same is also in blatant violation of
Article 22(5) of the Constitution of India. Further, this
position is also reiterated in the judgement passed by the
Co-ordinate Bench of this Court in Writ Petition (HC)
No.51/2022 in the case of Smt.R Ramya Vs.
Commissioner of Police and others.
14. Additionally, the Co-ordinate Bench of this Court
in WPHC No.39/2023 in the case of Smt.Shruthi T.K., Vs.
Deputy Commissioner and District Magistrate and
Others, in paragraph No.6, held as under;
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"6. ..........In the instant case, the
documents which have been filed to the detenue
have been produced before us. Learned High Court
Government Pleader has also gone through the
same and was unable to dispute the statement that
the documents supplied to the detenue were not
legible. Thus, it is evident that the detenue has
been deprived of his right to make an effective
representation. Therefore, the order passed under
Section 3(1) and Section 3(3) of the Act cannot be
sustained in the eye of law."
15. This being the settled position, in the case on
hand, on careful persual of the documents furnished to the
detenue by respondent No.2, it could be seen in the paper
book at page Nos.189 to 203, 210 to 280 and 241 to 247,
these documents are illegible or not readable. Further, these
documents also relied by the Detaining Authority while
passing the detention order. As such, respondent No.2 is
failed to comply the mandate under Section 8 of Goonda Act,
which vitiates the order under Sections 3(1) and 3(3) of the
Goonda Act.
16. Nevertheless, on careful persual of the entire
paper book furnished by the petitioner, it is clear that at page
No.382, the first page of FIR in Crime No.9/2021 and at page
No.471, the first page of FIR in Crime No.112/2023 are
missing. Out of these two cases, respondent No.2 has relied
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on Crime No.112/2023 to invoke the Goonda Act against the
detenue. In such circumstance, the concerned Police are duty
bound to provide the copies of the said FIR to the Detaining
Authority for its subjective satisfaction to invoke the Goonda
Act so also to the detenue to submit an effective
representation against the detention order.
17. Thus, we find merit in the submission made by
the learned counsel for the petitioner as certain pages in the
compilation are not legible and other important documents
were not provided to the detenue. We are afraid to say that
these documents would have been proven vital while passing
the detention order by the Detaining Authority so also to give
representation by the detenue against the detention order.
For the reasons discussed supra, we hold the point raised by
the learned counsel for the petitioner in this regard in favour
of the detenue.
18. To answer the second limb of the argument
advanced by the learned counsel for the petitioner that the
order of detention lacks consideration of the judicial orders
passed in the cases, wherein the detenue has arraigned as an
15
accused. According to the learend counsel, the detenue is
enlarged on bail by this Court in Crl.P.No.8028/2017 dated
28.12.2017 in connection with Crime No.230/2016, which
was regiseterd for the offence punishable under Section 302
of IPC. This vital document has not been produced before the
Detaining Authority by the police. Hence, the Detaining
Authority failed to appreciate this material document before
arriving at a subjective satisfaction. In this regard, we refer
the judgement of the Co-ordinate Bench in the case of
Shankara Gowda vs. The State of Karnataka and others
reported in ILR 2015 Kar 3312, wherein in paragraph 15,
it held as under;
"15. Therein, reliance was also placed on
three Judge Bench judgment of the Hon'ble
Supreme Court in the case of Rekha v. State of
Tamil Nadu Through Secretary to
Government [(2011) 5 SCC 244.] , as well as on
the judgment of the Hon'ble Supreme Court in the
case of Vijay Narain Singh v. State of Bihar [(1984)
3 SCC 14.] . The Hon'ble Supreme Court therein
have held that subjective satisfaction can be
arrived at only if the detaining authority considers
all the material that is placed before it. If the order
of bail or of acquittal are not produced before the
detaining authority, the detention order would be
invaild. In so reasoning, the Hon'ble Supreme Court
also held that it is not possible to attempt or to
assess in what manner or to what extent, the
consideration of order granting bail would have
16
effected the satisfaction of the detaining authority.
It is sufficient to hold that non-placing the relevant
material before the detaining authority would
render the detention order as invalid."
19. Hence, on persual of the above judgment passed
by the Co-ordinate Bench of this Court, it is clear that the
Detaining Authority is duty bound to peruse the judicial
pronouncements in respect of the cases pertaining to the
detenue relied by the concerned Authority/Police.
20. The Hon'ble Apex Court in the case of Nenavath
Bujji v. State of Telangana and Others reported in 2024
SCC OnLine SC 367 while dealing with the cases of illegal
detention, in paragraph 43, held as under:
"ii. Summary of the Findings.
43. We summarize our conclusion as
under:-
(1) The Detaining Authority should take into
consideration only relevant and vital material to
arrive at the requisite subjective satisfaction,
(ii) It is an unwritten law, constitutional and
administrative, that wherever a decision-making
function is entrusted to the subjective satisfaction
of the statutory functionary, there is an implicit
duty to apply his mind to the pertinent and
proximate matters and eschew those which are
irrelevant & remote,
(iii) There can be no dispute about the settled
proposition that the detention order requires
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subjective satisfaction of the detaining authority
which, ordinarily, cannot be questioned by the
court for insufficiency of material. Nonetheless, if
the detaining authority does not consider relevant
circumstances or considers wholly unnecessary,
immaterial and irrelevant circumstances, then
such subjective satisfaction would be vitiated,
(iv) In quashing the order of detention, the Court
does not sit in judgment over the correctness of
the subjective satisfaction. The anxiety of the
Court should be to ascertain as to whether the
decision-making process for reaching the
subjective satisfaction is based on objective facts
or influenced by any caprice, malice or irrelevant
considerations or non-application of mind,
(v) While making a detention order, the authority
should arrive at a proper satisfaction which should
be reflected clearly, and in categorical terms, in
the order of detention,
(vi) The satisfaction cannot be Inferred by mere
statement in the order that "it was necessary to
prevent the detenu from acting in a manner
prejudicial to the maintenance of public order".
Rather the detaining authority will have to justify
the detention order from the material that existed
before him and the process of considering the said
material should be reflected in the order of
detention while expressing its satisfaction,
(vil) Inability on the part of the state's police
machinery to tackle the law and order situation
should not be an excuse to Invoke the jurisdiction
of preventive detention,
(viii) Justification for such an order should exist in
the ground(s) furnished to the detenu to reinforce
the order of detention. It cannot be explained by
reason(s)/grounds(s) not furnished to the detenu.
The decision of the authority must be the natural
18
culmination of the application of mind to the
relevant and material facts available on the
record, and
(ix) To arrive at a proper satisfaction warranting
an order of preventive detention, the detaining
authority must, first examine the material
adduced against the prospective detenu to satisfy
itself whether his conduct or antecedent(s) reflect
that he has been acting in a manner prejudicial to
the maintenance of public order and, second, if
the aforesaid satisfaction is arrived at, it must
further consider whether it is likely that the said
person would act in a manner prejudicial to the
public order in near future unless he is prevented
from doing so by passing an order of detention.
For passing a detention order based on subjective
satisfaction, the answer of the aforesaid aspects
and points must be against the prospective
detenu. The absence of application of mind to the
pertinent and proximate material and vital
matters would show lack of statutory satisfaction
on the part of the detaining authority."
21. The Hon'ble Apex Court in the case of Ameena
Begum (supra) has also drawn 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.
Additionally, for an act to qualify as a disturbance to public
19
order, the specific activity must have an impact on broader
community or the general public, evoking feelings or fear,
panic, or insecurity. Not every case of a general disturbance
to public tranquillity affects the public order.
22. On consideration of the above settled legal
position, we are not inclined to appreciate the submission
made by learned SPP in this regard for the reason that since
the cases pending against the detenue except one for the
offence under Section 302 of IPC, the other cases are
punishable for the offence under NDPS Act for maxmium
period of 6 months or fine or both, those cases may not pass
the test of the law laid down by the Hon'ble Apex Court in the
above two judgments.
23. The respondent-Police Authorities are duty bound
and at liberty to expend appropriate legal action against the
detenue for his alleged illegal activities beside to file
application for cancellation of bail granted to the detenue. As
a matter of fact, the trial Court while granting bail to the
detenue in Crime No.9/2021 and Crime No.112/2023 had
given liberty to the police to seek cancellation of bail on
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violation of bail conditions i.e., if he involved in any other
offences. 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 enshrined under the Constitution.
There is no proper justification or rationale is 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) Writ petition is allowed.
b) The order of detention dated 19.03.2024 passed by respondent No.2 bearing No.MAG- 1/3/MGC/2024, subsequent approval order dated 26.03.2024 bearing No.HD 129 SST 2024 and confirmation order dated 22.04.2024 bearing No.HD 129 SST 2024 passed by respondent No.1 stand quashed.
c) Consequently, the respondents are directed to set the detenue at liberty, forthwith.
d) However, Registry is directed to communicate this order to the respondents as well as the 21 Jail Authorities to release the detenue forthwith, in case, he is not needed in any other cases.
No order as to Costs.
Sd/-
(V KAMESWAR RAO) JUDGE Sd/-
(RAJESH RAI K) JUDGE VM