Karnataka High Court
Smt. Meenaxi vs Additional District Magistrate And ... on 26 September, 2007
Equivalent citations: 2008(2)KARLJ712, 2008 CRI. L. J. (NOC) 152 (KAR.) = 2007 (6) AIR KAR R 593, 2007 (6) AIR KAR R 593
Author: K.L. Manjunath
Bench: K.L. Manjunath, Jawad Rahim
ORDER K.L. Manjunath, J.
1. Heard the learned Counsel for the petitioner and the learned Advocate General for the respondents.
2. The matter was earlier heard by us. After hearing the learned Counsel for the petitioner and the learned State Public Prosecutor considering the point involved in this writ petition, we requested the learned Advocate General to assist the Court. Accordingly, he has assisted the Court and argued the matter in detail.
3. The petitioner is the wife of one Sadanand Baddi who has been detained under the provisions of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1985. The present petition is filed by the petitioner requesting the Court to declare the detention of her husband Sadanand Baddi, passed by the 1st respondent dated 20th April, 2007 and approved by the 2nd respondent as per Annexure-D, dated 25-4-2007 as illegal and void ab initio.
4. The Additional Distinct Magistrate/Commissioner of Police, Hubli-Dharwad by his order dated 20th April, 2007 having satisfied that the petitioner's husband is involved in illegal liquor business activities against the public law and order, he has been ordered to be detained behind the bars. The above order was passed by him exercising his powers under Sub-section (2) of Section 3 of the aforesaid Act. Along with the order of detention, the grounds for arrest were also furnished to the petitioner. In addition to that, the documents relied upon by the Commissioner of Police were also furnished to the petitioner and it was made known to the petitioner that he has got a right to give representation against the order of detention to the State Government and also to furnish such representation to the Government through the Superintendent of Prison, Gulbarga. Thereafter the Government by its order dated 8-5-2007 referred the matter to the Advisory Board with all the records for its opinion and report as required under the law. As required under the law, the petitioner's husband did not give any representation on time to the State of Karnataka. However, as per the directions of the Advisory Board, the detenue was produced before the Board on 23-5-2007. Before the Advisory Board, the detenue submitted that he has received all case papers and an opportunity of hearing was also given to him by the Advisory Board and after recording the statement of the detenue and the Advisory Board being satisfied with the case, sent a report to the Government confirming the order of detention of the petitioner's husband. Thereafter the Government passed an order exercising its powers under Section 12 of the Act, to detain the petitioner's husband for a period of 12 months from the date of actual detention. Challenging the action of the Government, the present petition is filed.
5. The Government has filed the statement of objections.
6. The learned Counsel appearing for the petitioner has raised three points before us:
(1) According to him, an opportunity was not given to the petitioner to submit the representation directly to the State Government;
(2) The documents furnished to the petitioner were all in Kannada and that the petitioner's mother tongue being sohuji he was not in a position to understand the contents of the document and make a representation to the State Government; and (3) Relying upon the proviso to Sub-section (2) of Section 3 of the Act, he contends that the order of detention of the petitioner's husband for a period of 12 months passed by the Government is illegal and requires to be set aside.
7. The learned Advocate General submitted that none of the contentions urged by the petitioner hold water. According to him, the documents were furnished to the petitioner along with the order and the same has been accepted by the detenue before the Advisory Board stating that he has received all the documents. According to him, the detenue has been born and brought up in Hubli and he has studied in Hubli and one of the language studied upto the College is Kannada and therefore the contention of the learned Counsel for the petitioner that detenue was unable to read and understand the contents of the documents furnished by the State in Kannada language and therefore he could not submit a representation, cannot be accepted. He lastly contends that the order of detention of 12 months has been passed by the State Government exercising its powers under Section 12 of the Act and the proviso to Sub-section (2) of Section 3 of the Act, does not apply to the facts and circumstances of this case.
8. According to the learned Advocate General, proviso to Sub-section (2) of Section 3 is applicable to the person where the State Government has delegated its power. According to him, the 1st respondent by exercising his power under Sub-section (2) of Section 3 has not passed any order of detention for a period of 12 months directly. Therefore, the contention urged by the learned Counsel for the petitioner has to be rejected in toto.
9. After hearing the learned Counsel for both the parties, the following points are to be considered by us in this writ petition:
(1) Whether the petitioner's husband was in a position to understand the contents of the documents furnished by the 1st respondent which are in Kannada language?
(2) Whether due to furnishing of the documents in Kannada language, rights of the detenue, if any, to give representation is affected?
(3) Whether the proviso to Sub-section (2) of Section 3 of the Act, would apply to the State Government, if an order of detention is passed exercising its power under Section 12 of the Act?
10. It is not in dispute that the detenue is bom and brought up in Hubli. It is also not in dispute the documents furnished to the petitioner's husband are all in Kannada language. The contention of the learned Counsel for the petitioner is that the husband of the petitioner was unable to understand the contents of the documents since the same are in Kannada. The learned Counsel for the petitioner has produced certain documents to show the School leaving certificate issued by Sri Shantinath Hindi High School, Hubli and the marks card obtained by the detenue in S.S.L.C. conducted by the Karnataka Secondary Education Examination Board. The medium of instruction in the school was Hindi but the third language studied by the detenue is Kannada. If a person who has been born and brought up in Karnataka and has taken third language as Kannada, if the documents furnished to him are in Kannada, it would be difficult for any Court to appreciate the contention urged by the learned Counsel for the petitioner that detenue was unable to read the documents furnished to him in Kannada language. As a matter of fact, the documents relied upon by the 1st respondent are the case papers pertaining to the detenue wherein he was arrayed as an accused in criminal cases and these documents were not new to him. According to the learned Counsel for the petitioner out of 9 cases, he has been acquitted in 3 cases and 6 cases are pending consideration before the jurisdictional Magistrate.
11. Therefore, the Point No. 1 has to be held ... 'against him as these documents were not new to him and since he knows Kannada language as one of the language studied by him in the School was Kannada. Accordingly, Point No. 1 is held against him.
12. So far as the Point No. 2 is concerned, before the Advisory Board the detenue did not contend that he could not give representation on account of non-understanding the language of the documents furnished by him. As a matter of fact, he has admitted before the Advisory Board that he has received all the documents. When the statement was recorded he has only submitted that he is innocent of the offence alleged against him. In view of his statement before the Advisory Board, it is not possible for us to appreciate the second point also.
13. So far as the last point is concerned, Section 3 of the Act reads as hereunder:
3. Power to make orders detaining certain persons.-(1) The State Government may, if satisfied with respect to any bootlegger or drug-offender or gambler or goonda or immoral traffic offender or slum-grabber that with a view to prevent him from acting in any manner prejudicial to the maintenance of public it is necessary so to do, make an order directing that such persons be detained.
(2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in Sub-section (1), exercise the powers conferred by the sub-section:
Provided that the period specified in the order made by the Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding-three months at any one time.
14. Relying upon the proviso to Sub-section (2) of Section 3 of the Act, the learned Counsel for the petitioner submits that the State Government while exercising the powers under Section 12 of the Act, to pass an order of detention for a maximum period of 12 months, at the first instance should have passed an order of detention only for a period of three months and thereafter from time to time it can extend the time, but not exceeding three months at any point of time.
15. The learned Advocate General submits that proviso to Sub-section (2) of Section 3 of the Act, is not applicable to the State Government while passing an order of detention, but it is only pertaining to the order of authorisation delegating its power to the District Magistrate or the Commissioner of Police to exercise the powers vested under Sub-section (1) of Section 3 of the Act.
16. Therefore what is to be considered by us in this writ petition is whether the proviso to Sub-section (2) of Section 3 of the Act, is a rider to the State Government to pass an order of detention directly for a period of 12 months exercising the powers under Section 12 of the Act.
17. By plain reading of Section 3 of the Act, makes it very clear that Sub-section (1) of Section 3 can be directly exercised by the State Government. If the Government is satisfied that any bootlegger or drug-offender or gambler or a person involved in immoral traffic offender or slum-grabber, with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, the Government can make an order of detention. The Government can delegate its power under Sub-section (2) of Section 3 of the Act, either to the District Magistrate or the Commissioner of Police. While exercising such powers, the period of delegation in any case shall not exceed three months and it can be further extended from time to time for any period not exceeding three months on any one time. Therefore, we are of the opinion that proviso to Sub-section (2) of Section 3 of the Act, is applicable only for the purpose of delegation of power and not to pass any order of detention. The order of detention can be passed only by the State Government exercising power under Section 12 of the Act. In this case, the Government has exercised its power under Section 12 of the Act and has passed an order ordering to detain the husband of the petitioner for a period of 12 months from the actual date of detention. Therefore, we do not see any reasons to interfere with the orders of the Government.
18. Accordingly, the writ petition is dismissed. Parties to bear their cost.