Karnataka High Court
Rosaline Y vs Deputy Commissioner And on 13 October, 2023
Author: K.Somashekar
Bench: K.Somashekar
-1-
NC: 2023:KHC:37568-DB
WPHC No. 89 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF OCTOBER, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
WRIT PETITION (HABEAS CORPUS) NO.89 OF 2023
BETWEEN:
ROSALINE Y
AGED ABOUT 31 YEARS,
WIFE OF EDWIN @ AGIL
S/O LAVVI UTTARNATHAN
RESIDING AT MUSKAM, E BLOCK,
SUSAIPALYAM, K G F, ANDERSONPET,
KOLAR, BANGARPET, KARNATAKA 563113
...PETITIONER
(BY SRI. ROHAN VEERANNA TIGADI, ADVOCATE)
Digitally AND:
signed by D
HEMA
Location: 1. DEPUTY COMMISSIONER AND
HIGH COURT DISTRICT MAGISTRATE
OF
KARNATAKA KOLAR DISTRICT, KOLAR
KOLAR DISTRICT, KOLAR,
NEW DC OFFICE, KOLAR
45PJ + 6C9, KOLAR,
KARNATAKA 563 103, KOLAR.
2. STATE OF KARNATAKA
VIDHANA SOUDHA,
AMBEDKAR VEEDHI,
-2-
NC: 2023:KHC:37568-DB
WPHC No. 89 of 2023
SAMPANGI NAGARA, BENGALURU,
KARNATAKA 560001
(REPRESENTED BY SECRETARY, HOME DEPARTMENT,
LAW AND ORDER)
3. SENIOR SUPERINTENDENT
CENTRAL PRISON, BANGALORE
BENGALURU 560 001.
...RESPONDENTS
(BY SRI. ANOOP KUMAR, HCGP)
THIS WPHC FILED UNDER ARTICLE 226 AND 227 OF THE
CONSTITUTION OF INDIA, PRAYER TO ISSUE A WRIT OF
HABEAS CORPUS DECLARING THE DETENTION OF SRI. EDWIN
@ AGIL S/O LAVVI @ UTTARNATHAN, AGE 32 YEARS IS
ILLEGAL AND SET HIM AT LIBERTY FORTHWITH AFTER
QUASHING ORDER BEARING REFERENCE NUMBER
MAG(2)(CR/L & O(G)/01/2023-24 DATED 24.4.2023
(ANNEXURE-A) PASSED BY THE 1ST RESPONDENT UNDER
SECTION 3(2) OF THE GOONDA ACT, THE ORDER BEARING
REFERENCE NUMBER HD 221 SST 2023 DATED 29.4.2023
(ANNEXURE-B) PASSED BY THE 2ND RESPONDENT UNDER
SECTION 3(3) OF THE GOONDA ACT AND ORDER BEARING
REFERENCE NUMBER HD 221 SST 2023 DATED 09.06.2023
(ANNEXURE-C) PASSED BY THE 2ND RESPONDENT UNDER
SECTION 13 OF THE GOODA ACT.
THIS WPHC HAVING BEEN HEARD AND RESERVED ON
03RD OCTOBER 2023, COMING ON FOR PRONOUNCEMENT OF
-3-
NC: 2023:KHC:37568-DB
WPHC No. 89 of 2023
ORDERS, THIS DAY, UMESH M ADIGA J, PASSED THE
FOLLOWING:
ORDER
Wife of the detenue by name Edwin @ Agil, son of Levvi @ Uttaranathan, aged about 22 years, has filed this writ petition under Article 226 of the Constitution, challenging the detention order passed by Respondent No.1, Deputy Commissioner/District Magistrate, Kolar District, Kolar, bearing No.MAG(2)CR/L & O (G)/01/2023- 24 vide Annexure - A; Order bearing reference number HD-221-SST-2023, dated 29-04-2023, at Annexure B, passed by the State, approving the orders at Annexure A, and the order passed by the second Respondent State, bearing number HD-221-SST-2023, dated 9-06-2023, vide annexure C, passed by the Respondent No. 2, under Section 13 of Karnataka, Prevention of Dangerous Activities of Boot Leggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum Grabbers, and Video or Audio pirates Act 1985, (hereinafter referred for -4- NC: 2023:KHC:37568-DB WPHC No. 89 of 2023 short as 'Act'), and direct to release the detenue forthwith, on various grounds urged in the Writ Petition.
2. The Superintendent of Police, Kolar District, has submitted a report dated 09.02.2023 to District Magistrate, Kolar, requesting to take action under Goondas Act against detenue, vide Annexure E, and the Superintendent of Police has mentioned in detail about the cases pending against detenue, as well as the heinous acts committed by detenue, as well as the acts which are creating trouble to the tranquillity of society and public order. The District Magistrate has considered the report along with the materials placed before him by the Superintendent of Police and passed the detention order along with the grounds of detention, bearing number MAG (2)CR/L&O(G)/01/2023-24, dated 24-04-2023.
3. The learned District Magistrate mentioned all the 20 cases registered against detenue in RobertsonPet Police Station, AndersonPet Police Station of Kolar District, registered under the various provisions of Indian Penal -5- NC: 2023:KHC:37568-DB WPHC No. 89 of 2023 Code and NDPS Act. On the basis of materials placed before him, the District Magistrate satisfied that the detenue was involved in several offences under the various Acts and is creating an atmosphere of fear and insecurity in the minds of the general public, which adversely affecting public order. That the law-abiding public are living in great insecurity and there is every possibility that they may not approach the justice delivery system against the detenue's illegal activities. He is a rowdy sheater of Robertsonpet Police Station; to maintain effective surveillance on the detenue's activities, it was warned detenue for good behaviour from time to time. In spite of such warnings, detenue continued his illegal activities and did not reform himself. The activities of the detenue had disturbed normal public life in all the localities, wherein he had committed the offences. With the said subjective satisfaction, the District Magistrate passed impugned order of detention dated 24-04-2023, vide annexure A, along with, the grounds of detention and same were served on detenue, on the same day. -6-
NC: 2023:KHC:37568-DB WPHC No. 89 of 2023
4. The District Magistrate submitted the detention order along with enclosure to the Government. The Government, reconsidering all the materials placed by the District Magistrate, has passed the impugned order number HD-221-SST-2023, Bengaluru, dated 29-04-2023, approving the detention order passed by Deputy Commissioner, vide Annexure B.
5. The State Government placed all these materials before the Advisory Board and after receipt of report from the Advisory Board, the State of Karnataka, by proceeding number HD-221-SST-2023, dated 09-06-2023, passed the order for detention of detenue for a period of one year from 24-04-2023, vide Annexure 'C' under Section 13 of the Act.
6. The detenue submitted representation dated 08- 08-2023 to the State of Karnataka, vide Annexure G. In the synopsis notes, the petitioner has mentioned that the second respondent - State has received the representation of detenue on 10-08-2023 and the second respondent- -7-
NC: 2023:KHC:37568-DB WPHC No. 89 of 2023 State has considered the said representation and passed the order dated 24-08-2023, rejecting the representation of detenue.
7. The wife of detenue challenged the order of detention on various grounds, in this writ petition.
8. The state did not file any response to the writ petition.
9. We have heard the arguments.
10. The submissions of learned advocate for petitioner are as under :-
• The district magistrate failed to comply with section 8 of the Act. In the impugned order, vide annexure A, the District Magistrate did not inform the detenue that during the interregnum period of passing of detention order and its approval by the Government, the detenue could file representation to detaining authority that is District Magistrate himself.
• there is inordinate delay in considering representation and that vitiate detention order.-8-
NC: 2023:KHC:37568-DB WPHC No. 89 of 2023 • there is inordinate delay between the passing of detention orders and the date of proposal for detention of the detenue by the Superintendent of Police.
• Detaining Authority failed to provide translated copies of detention orders and supporting documents to the detainee. Similarly, legible copies of documents were not supplied to detenue to file his representation at the earliest, which is violation of Article 22 (5) of constitution. • the detaining authority failed to provide bail orders passed in favor of detenue by the courts to the detenue.
11. The learned advocate for petitioner relied on few reliances in support of his submission.
12. The HCGP has submitted that the said grounds urged by petitioners are not tenable. Detention order were given to detenue, both in Kannada as well as in English, the order of the State Government - respondent No.2 is in Kannada and it was also served on the detenue. Detenue never asked for translated copies of the said documents. Moreover, detenue is resident of Karnataka that is, KGF, -9- NC: 2023:KHC:37568-DB WPHC No. 89 of 2023 he knows Kannada, English and Tamil. Therefore, question of supplying of the translated documents do not arise at all. Moreover, the documents enclosed with the detention orders are copies of charge sheet, enclosures, etc. And hence, he is well-versed with the said document since it was supplied to him in the concerned cases registered against detenue. He has further submitted that the detenue himself had applied for bail in the concerned criminal cases registered against him and obtained bail. Bail orders were not much relied by the detaining Authority. Therefore, question of supplying the said orders by the detaining authority do not arise. With these reasons, the learned HCGP prayed to dismiss the Writ Petition.
13. The first and foremost ground of attack of the impugned order of the District Magistrate is that he did not follow the provisions of Section 8 of the Act. It is a mandatory provision and the District Magistrate shall, if he passes an order under Section 3(2) of the Act, then he
- 10 -
NC: 2023:KHC:37568-DB WPHC No. 89 of 2023 shall inform the detenue that he could make representation to the District Magistrate, during the interregnum period from the date of passing of detention order till it is approval by the State Government. It is not complied by District Magistrate, which is violation of Article 22 (5) of Indian Constitution.
14. In the case of State of Maharashtra and others, v Santosh Shankar Acharya1. It is said by Hon'ble Apex Court as under:
"The District Magistrate or Commissioner of Police on being authorised by the State Government could issue an order of detention under Sub-section (2) of Section.3. When an officer exercises power and issues orders of detention under sub-section (2) then he is duty-bound to report forthwith the facts of detention and the grounds on which the order of detention is made and/or other particulars to the State Government. On receipt of the report, the grounds and the particulars from the officer concerned the State Government is required to approve the order of detention within 12 days, and if it is not approved within 12 days then it automatically lapses. Section 8(1) casts mandatory obligation both on the authority which passes an order of detention either under sub-section (1) or under sub-section (2) i.e., if the State Government issues an order of detention under sub-section (1), or if the officer empowered issues an order of 1 2007 SCC 463
- 11 -
NC: 2023:KHC:37568-DB WPHC No. 89 of 2023 detention under sub-section (2) that the same must be communicated to the detenu not later than 5 days from the date of detention. Although in the latter part of sub-section (1) of Section 8 it has been categorically mentioned that an earliest opportunity of making a representation against the order to the State Government should be afforded, but that does not make the State Government the detaining authority as soon as the factum of detention is communicated by the person concerned exercising power under sub-section (2) as provided under sub- section (3) thereof nor does it take away the power of entertaining a representation from a detenu so long as the order of detention has not been approved by the State Government. In a case where an officer other than the State Government issues an order of detention under sub-section (2) of Section 3 his powers as the detaining authority to deal with the representation under the provisions of Section 21 of the Bombay General Clauses Act, 1904, cannot be said to be taken away merely because Section 8(1) specifically provides for making a representation to the State Government. Such failure would make the order of detention invalid. As such the ratio of the constitution Bench decision of this Court in Kamleshkumar case would apply notwithstanding that in Kamleshkumar case the Court was dealing with an order of detention issued under the provisions of the COFEPOSA Act".
15. The facts in the above said case are similar to the facts in the present case. However, detention order was issued in the above said case was under
Maharastra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981, which appears to be in paramateria with the Act. therefore, the law laid
- 12 -
NC: 2023:KHC:37568-DB WPHC No. 89 of 2023 down in the above said judgment is aptly applicable to facts of the present case.
16. There is no convincing arguments by learned HCGP in respect of failure to mention the mandatory information in the detention order by learned District Magistrate. therefore, the impugned detention order passed by the detaining authority as per Annexure - A, C & E are invalid.
15. Following the above law laid down by he Hon'ble Apex Court Division Bench of this court in the case of Syed Abdul Madani V. State of Karnataka in WPHC No.51/2023 held that not informing such material fact to the detenue, in the detention order it becomes invalid order. On this ground, the impugned order passed by the detaining authority is invalid and violative of Article 22 (5) of the Constitution and not enforceable.
16. The second ground of attack on the detention order is that there is unexplained delay in considering the representation of detenue. According to submission of learned advocate for petitioner, detenue had submitted representation on 08-08-2023 and respondent State
- 13 -
NC: 2023:KHC:37568-DB WPHC No. 89 of 2023 confirmed that the said representation was received by the State on 10-08-2023. However, the said representation was considered and rejected by the State on 24-08-2023. There is no explanation in the rejection order for the delay of 10-11 days in passing the said order. Thereby, the said rejection order after delay of about 11 days is nothing but violation of Article 21 and 22 of Constitution. In support of the said submission, the learned advocate for petitioner has relied on the following caess.
• Renukamma v. Deputy Commissioner & District Magistrate in WPHC 36/2023;
• Rashid Kapadia v. Medha Gadgil and others2; • Rajammal Vs. State of Tamil Nadu3.
17. There is no convincing reply in this regard by the learned HCGP.
18. It is not in dispute that representation was submitted by detenue on 08-08-2023 to the Jail 2 (2012) 11 SCC 745, Paragraph 13 3 1 SCC 417, paragraph 7 & 8
- 14 -
NC: 2023:KHC:37568-DB WPHC No. 89 of 2023 Superintendent of Central Prison and the said representation was received by the State Government on 10-08-2023. It was rejected by the State Government vide order HD-221-SST-2023, Bengaluru dated 24-08- 2023. In the rejection order, all the materials placed on record were reproduced and it was rejected. There is no explanation for delay of 11 days in considering the representation of detenue.
18(a). In the case of RENUKAMMA VS. DEPUTY COMMISSIONER AND DISTRICT MAGISTRATE, BENGALURU RURAL DISTRICT, passed by High Court of Karnataka in W.P.No.36/2023 dated 20.09.2023 relying on the law laid down by the Hon'ble Apex Court it is held that unexplained delay in disposal of representation is fatal to detention order. it is held as under:
18(b). In the case of Rashid Kapadia Vs. Medha Gadgil and others4, it is held by the Hon'ble Apex Court that any un-reasonable and un-explained delay in considering the representation held fatal to continue detention and on that 4 (2012) 11 SCC 745
- 15 -
NC: 2023:KHC:37568-DB WPHC No. 89 of 2023 ground alone, the detention order needs to be quashed. It is held in the said case as under:
It is well settled that the right of a person, who is preventively detained, to make a representation and have it considered by the Authority concerned as expeditiously as possible, is a Constitutional right under Article 22(5). Any unreasonable /and unexplainable delay in considering the representation is held to be fatal to the continued detention of the detenue. The proposition is too well settled in a long line of decisions of this Court.
18(c ). In the case of Rajammal Vs. State of Tamilnadu and another5, it is held by the Hon'ble Apex Court that "delay and disposal of the representation of the detenue without justifiable reason is fatal to continue the detention. In that case, the Minister concerned was not in the Headquarters for approving the orders of the concerned authority and on that basis, there was a delay. The Hon'ble Apex Court held that such grounds are not justifiable grounds. When the liberty of the Citizen granted under Article 21 of the Constitution is involved in a Preventive Detention matter". And on that basis, the detention order was quashed by the Hon'ble Apex Court.5
(1999) 1 SCC 417
- 16 -
NC: 2023:KHC:37568-DB WPHC No. 89 of 2023 18(d) . In the case of Jayanarayan Sukul Vs. State of West Bengal6, wherein the Apex Court held that:
It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of the detenue as early as possible. The appropriate Government itself is bound to consider the representation as expeditiously as possible. The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on part of appropriate authority but also unconstitutional because the Constitution enshrines fundamental right of a detenue to have his representation considered and it is imperative when liberty of a person is in peril immediate action should be taken by relevant authorities.
18(e) . In the case of Sumaiya Vs. The Secretary to Government, Prohibition and Excise Department, Government of Tamilnadu, Fort St.George, Chennai-9 and another7, in this case also, un-explained delay of three days was held to be fatal to the detention order and on that ground, the detention order was quashed.6
1970 (1) SCC 219 7 2007 SCC OnLine Mad 700
- 17 -
NC: 2023:KHC:37568-DB WPHC No. 89 of 2023 18(f) . In the decision of the Co-ordinate Bench of this Court, in the case of Smt.Leelavathi Vs. Commissioner of Police, Bengaluru and others8, it is held that un-explained delay in considering the representation of detenue would be fatal to the detention order and the State cannot be permitted to sit on the representation of the detenue when the person's liberty is involved.
19. Therefore, impugned order of rejection passed by the State Government after delay of unexplained delay of 11 days is also fatal to the detention order passed by the respondents.
20. The learned advocate for petitioner has raised another ground of attack on the impugned order that the District Police Superintendent, Kolar, had sent a report on 09-09-2023. It was considered by the District Magistrate only on 24-04-2023. There is delay of about more than two and half months in considering representation by District Magistrate, which is not 8 ILR 2019 KAR 4105
- 18 -
NC: 2023:KHC:37568-DB WPHC No. 89 of 2023 explained. Therefore, on this ground also, the impugned order passed by the respondent is not tenable. In support of the said submission, he relied on the judgment of Hon'ble Apex Court in the case of Sushant Kumar Banik v. State of Tripura and others9. The said submission is not tenable. The said delay in considering the report of the Superintendent of Police by the District Magistrate, do not in any way affect or prejudice the rights of the detenue. The District Magistrate had to apply his mind and collect the materials to accept or reject the report of the Superintendent of Police. Thereafter, he has to pass the orders. Till such an orders are passed, the rights of the detenue was not at all affected and moreover, under the Act, there is no such provision mandating the District Magistrate should pass orders on the report immediately. Under such circumstances, the said delay do not affect the rights of the detenue. The law laid down in the above said judgment referred by the Petitioner, in the case of Sushant Kumar Banik, is not applicable to the facts of the 9 (2022) SCC ONLINE SC 1333
- 19 -
NC: 2023:KHC:37568-DB WPHC No. 89 of 2023 present case. We do not know what are the provisions Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act 1988. Whether the provisions of said Act is paramateria with Act or not is not known to us. Therefore, there is no need to consider much about the said contention of the Petitioner.
21. It is also a ground of attack of the Petitioner that detaining authorities failed to provide translated copies of the detention orders and supporting documents and therefore detention stand vitiated. In support of the said contention, he relied on judgment in the case of Jayamma v. State of Karnataka10. It is a submission of the learned advocate for Petitioner that detenue is knowing only Tamil to read and write and the detention order or enclosures were given to him were either in English or in Kannada therefore he could not read and understand them and give the representation at the earliest. The said contention is also not tenable. It is pertinent to note that detenue has 10 ILR 2019 KARNATAKA 1543
- 20 -
NC: 2023:KHC:37568-DB WPHC No. 89 of 2023 produced Xerox copy of his transfer certificate given by the School at Susaipalyam, Andersonpet, K.G.F. The said Transfer Certificate reveals that detenue knows/studied Tamil, Kannada and English, but the medium of instruction was Tamil. When he studied Tamil, Kannada and English, we don't feel that he was not able to read the contents of the detention order or enclosures therewith. Moreover, as rightly submitted by learned HCGP, the said documents are copies of charge sheet and enclosures in the concerned criminal cases which were supplied to detenue by the concerned court wherein the cases are pending. Under those circumstances, in this case, it is not fatal that the detenue was not supplied with copy of the translated copies in Tamil. Moreover, there is no material on record to show that detainue had requested the detaining authority to supply translated copy of detention order or other materials, in Tamil, on the ground that he does not know to read and write Kannada or English. Therefore, the said ground is not acceptable.
- 21 -
NC: 2023:KHC:37568-DB WPHC No. 89 of 2023
22. It is also urged by the petitioner that the detaining authority had not served copy of the bail application as well as order passed on the bail petition by the concerned court in favor of detenue and granting of the bail by the concerned court in favor of detenue.. These grounds are not tenable looking to the facts of present case. As already stated above, detenue himself had applied for bail and obtained order and on that basis released from bail. The detaining authority has not relied much upon the bail orders. On the contrary, it relied upon antecedents of detenue and his involvement in heinous offences and on that basis passed detention order. If the detaining authority had relied much upon the bail orders given to the detenue, in that event, it may be true that non- supplying of the said materials to the detenue may be fatal. But in this case, the said bail orders are not much relevant. Under such circumstances, non-furnishing of the same to the detenue is not fatal.
- 22 -
NC: 2023:KHC:37568-DB WPHC No. 89 of 2023
23. For the aforesaid discussion, the detaining authority had violated article 22 (5) of constitution in not informing the detenue about his right to make representation to the District Magistrate during interregnum period from passing orders by District Magistrate and approval by State. Similarly, unexplained delay of 11 days in considering the representation made by detenue. Therefore, the detention order passed by the respondents need to be quashed. Accordingly, we pass following order:
ORDER i. Writ petition is allowed.
ii. The impugned order passed by the respondents in No. MAG(2)CR/L&O(G)/01/2023-24 dated 24-04-2023, vide (Annexure-"A"), passed by the first respondent under Section 3(2) of the Act, the order bearing number HD-221-SST- 2023 dated 29-04-2023, vide (Annexure-
"B"), passed by the second respondent under the Act, and the order bearing reference number HD-221-SST-2023 dated
- 23 -
NC: 2023:KHC:37568-DB WPHC No. 89 of 2023 09.06.2023, vide (Annexure-"C") passed by the second respondent are quashed.
iii. The Authority is directed to release the detenue- Mr.Edwin @ Agil, son of Lavvi @ Uttaranathan, age 32 years, forthwith from the custody, if he is not required in any other case.
iv. The registry is directed to send the operative portion of the order to the detaining authority forthwith for compliance.
Sd/-
JUDGE Sd/-
JUDGE AG List No.: 1 Sl No.: 47