Karnataka High Court
Smt. Madhuri Adiga vs The State Of Karnataka on 14 August, 2024
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF AUGUST, 2024
PRESENT
THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
WPHC NO 62 OF 2024
BETWEEN
SMT. MADHURI ADIGA,
W/O. ASHOK KUMAR ADIGA,
AGED ABOUT 57 YEARS,
R/AT NO. 288, 3 'A' CROSS,
2ND BLOCK, 3RD STAGE,
BASAVESHWARANAGAR,
BANGALORE-560 079.
...PETITIONER
(BY SRI. SANDESH J CHOUTA, SENIOR COUNSEL FOR
SRI. VINOD KUMAR.M, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
BY ITS ADDITIONAL CHIEF SECRETARY,
DEPARTMENT OF HOME AFFAIRS,
GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA,
BENGALURU-560 001.
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2. THE ADDITIONAL SECRETARY,
LAW AND ORDER,
GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA,
BENGALURU-560 001.
3. THE DG AND IGP,
POLICE HEAD QUARTERS,
NRUPATHUNGA ROAD,
BENGALURU-560 001.
4. THE COMMISSIONER OF POLICE,
BENGALURU CITY, NO.1,
INFANTRY ROAD,
BENGALURU-560 001.
5. THE SUPERINTENDENT OF PRISONS
BANGALORE CENTRAL PRISON,
PARAPPANA AGRAHARA,
BENGALURU-560 068.
6. ASSISTANT COMMISSIONER OF POLICE,
VIJAYANAGAR SUB-DIVISION,
VIJAYANAGAR,
BENGALURU-560 040.
7. THE INSPECTOR OF POLICE,
BASAVESHWARA NAGAR
POLICE STATION,
BASAVESHWARA NAGARA,
BANGALORE-560 079.
...RESPONDENTS
(BY SRI. BELLIAPPA, SPP-I, FOR
SRI. ANOOP KUMAR, HCGP FOR R1 TO R7)
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THIS WPHC IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO
ISSUE A WRIT OF HABEUS CORPUS OR ANY OTHER
APPROPRIATE WRIT, ORDER OR DIRECTION DIRECTING THE
RESPONDENTS TO PRODUCE THE DETENUE BY NAME
A.R.ASHOK KUMAR ADIGA, S/O A,.V.R.ADIGA AGED 59 YEARS,
RESIDING AT NO.288, 3RD A CROSS, 2ND BLOCK, 3RD STAGE,
BASAVESHWARA NAGAR, BENGALURU-560 079 BEFORE THIS
HON'BLE COURT AND DIRECT HIS RELEASE DULY DECLARING
THAT THE ORDER OF DETENTION PASSED IN NO. 01/CRM
(4)/DTN/2024 DATED 10.06.2024, PRODUCED AT ANNEXURE-R
PASSED BY RESPONDENT NO.4 AND THE CONFIRMATION
ORDER ISSUED BY THE GOVERNMENT DATED 15.06.2024
PRODUCED AT ANNEXURE-T PASSED BY THE RESPONDENT NO.2
ARE ILLEGAL AND INVALID, UNDER THE EYE OF LAW AND ETC.
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 JUDGMENT
(PER: HON'BLE MR JUSTICE RAJESH RAI K) The petitioner, being the wife of Sri Ashok Kumar Adiga (hereinafter referred to as 'the detenue'), has assailed the validity of the order of detention dated 10.06.2024 passed in No.01/CRM (4)/DTN/2024 by respondent No.4 under 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 to as 'the Act'). The petitioner also seeks for quashment of the order dated 15.06.2024, by which the order of detention has been affirmed by the State Government i.e., respondent No.2 and seeks a writ of Habeas Corpus to release the detenue forthwith.
2. The facts that are apposite for consideration as borne out from the pleadings are as follows:
An order of detention was passed against the detenue on 10.06.2024 under the Act on the ground that the detenue was indulged in anti-social and criminal activities and he is a 5 nuisance to the law and order by continuously engaging in illegal activities like gambling, obstructing the duty of the Police Officers, intimidation, fraud, extortion of exorbitant interest etc., and also violating the bail conditions. He continued his illegal activities regardless of being prosecuted in the criminal cases.
He was engaged in gambling activities in the club illegally without holding a valid license or a permission from the Competent Authority by violating the orders passed by various Courts and making innocent public individuals to believe that he has obtained permission from the concerned Department and engaging hundreds of peoples into gambling activities. There are as many as 12 criminal cases filed against him. In spite of that, he failed to change his audacious behaviour without correcting himself. Hence, respondent Nos.3 to 7 decided to invoke the Act against detenue. Accordingly, on 10.06.2024, the detention order was passed against the detenue.
3. In pursuance of the order of the detention, the detenue was arrested on 10.06.2024 and copy of the detention order along with the grounds of detention being served upon him 6 on the same day. In pursuance of the same, on 13.06.2024, the detenue has given a representation to respondent No.4 by denying the averments made in the detention order and prayed for his release. The said representation was forwarded and the same was received by the Office of respondent No.4 on 13.06.2024 and in-turn, the same has been forwarded to the State Government i.e., respondent Nos.1 and 2, however, the same was rejected by the State Government. Later, the detention order was placed before the Advisory Board with all the relevant materials of crime committed by the detenue. On 29.06.2024, the detenue was produced before the Advisory Board and he was heard and the Advisory Board reserved the matter to pass its final opinion. In the meantime, respondent No.2 confirmed the detention order on 15.06.2024. Subsequently, on 24.07.2024, the Advisory Board has approved the detention order dated 10.06.2024 and confirmed the same. In the aforesaid factual background, this petition has been filed by the petitioner i.e., the wife of detenue.
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4. We have heard the learned Senior counsel Sri Sandesh J. Chouta for Sri Vinod Kumar M, for the petitioner and learned SPP-I Sri Belliappa for Sri Anoop Kumar for respondent Nos.1 to 7.
5. It is the primary contention of the learned Senior counsel for the petitioner that the acts alleged to have been committed by the detenue as per the detention order would not fall within the wider spectrum of prejudicial to the maintenance of 'Public Order', but the same falls within the ambit of 'Law and Order', for which preventive detention measures cannot be invoked. The learned Senior counsel further vehemence his argument that the alleged acts of the detenue did not fit into the definition of 'Goonda' as defined under Section 2(g) of the Act, since the offence alleged to have been committed by the detenue would not fall within the Chapters XVI, XVII and XXII of IPC i.e., the offences affecting body, property and criminal intimidation. By enunciating his argument, he would submit that in the detention order, it is alleged that the detenue was running gambling activities in the club illegally without holding a valid 8 license or permission from the Competent Authority. As such, to prevent such illegal activities, he detained under the detention order. But on a cursory glance of Section 2(7) of the Karnataka Police Act that is 'Gaming', the same includes all forms of 'Wagering or Betting' in connection with any 'Game of Chance'. But, there is no such gaming activity allowed in the club. Per contra, members of any club are allowed to play in the card room only a 'Game of Skill' instead a 'Game of Chance' as described under the provisions of the Act. Further, there is no such separate license is required in order to run a card room inside the club. As such, the offence alleged against the detenue itself is not maintainable. Additionally, the detenue was enlarged on bail in all the cases filed against him and all those offences are punishable maximum for a period of one year and the same cannot be termed as the offence which prejudicial to the maintenance of public order.
6. Learned Senior counsel would further contend that the detention order is stale and not proximate to the order of detention. There is no rational nexus to the conclusion drawn in 9 the detention order. On perusal of the grounds of detention, it could be seen that, repeated false cases have been foisted against the detenue within a short span of period and some of the cases are registered on the same day. He would also contend that the order of delegation of power by the Government to the Commissioner, who invoked the Act against the detenue is of the year 2003 and dated 03.06.2024. On careful perusal of the Notification, it could be gathered that the Commissioner had no such power to invoke the provision against the detenue as on the date of detention order. He also contend that, there is no period of detention mentioned in the detention order, as such, the same is violative of Fundamental Right enstrained under Article 21(4) of the Constitution of India.
7. In order to buttress his argument, he relied upon the judgments of Hon'ble Apex Court in the cases of Nenvath Bujji v. State of Telangana and Others reported in 2024 SCC OnLine SC 367 and Ameena Begum v. State of Telangana and Others reported in (2023) 9 SCC 587.
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8. Refuting the above submission of the learned Senior counsel, Sri Belliappa learned SPP-I would contend that the respondents-Authorities have rightly invoked the provisions of the Act against the detenue since there are as many as 12 cases registered against the detenue for running recreation club without holding valid license and illegally indulging in the activities of gambling. In some of the cases, the detenue approached this Court by filing petitions to quash the proceedings initiated against him and withdrawn the same by undertaking to obtain valid license to run the club. As such, it is amply clear that the detenue was indulged in gambling activities in the club without obtaining valid license. By enunciating his contention, he would submit that out of 12 cases registered against the detenue, one of the case in Crime No.417/2023 of Basaveshwara Nagar Police was registered for the offences punishable under Sections 79 and 80 of the Act and Section 78 of Juvenile Justice Act, Sections 278, 283 and 506 of IPC and Sections 24 and 6(B) of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2004. 11 On investigation of the said case, it is revealed that the club administered by the detenue was situated within 50 meters away from the School and the minor school going students use to visit the club and indulged in illegal activities. Further, on a raid by the Police to the said club on 10.11.2023, a sum of Rs.7,22,480/- was seized in PF No.212/2023 and the detenue got released the said amount by filing an application under Sections 451 and 457 of Cr.P.C. before the Jurisdictional Magistrate Court, which clearly substantiates that the detenue was involved in gambling i.e., not a 'Game of Skill', but a 'Game of Chance'. As such, the act of the detenue disturbed the public at large which amounts to 'Public Disorder'.
9. Learned SPP-I would further contend that the respondents-Authorities have received several complaints from the neighbours of the club, which was run by the petitioner that, due to the illegal activities in the club, they are facing difficulty to lead a peaceful life. Those complaints were registered in the Non Cognizable Register (NCR) and endorsements were issued to the respective complainants. Hence, the detenue directly 12 indulged in disturbing the peace of public at large. Additionally, the detenue is a rowdy sheeter, continued his illegal activities in spite of repeated caution given by the Police to him not to indulge in such activities. Learned SPP-I would contend that the representation submitted by the detenue has been carefully considered by the Authority and endorsement issued to him for having rejected the same. Nevertheless, there is no such compulsion to prescribe the specific period of detention in the order of detention, when a State Government passes a confirmatory order under Section 12 of the Act after receipt of the report from the Advisory Board. Such a confirmatory order need not be restricted to a period of 3 months and it can be beyond a period of 3 months from the date of initial order of detention from up to a maximum period of 12 months from the date of detention. If the period is not specified in the order, then it would be for a maximum period of 12 months from the date of detention. On these grounds, the learned SPP-I prays to dismiss the writ petition.
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10. In order to buttress his argument, he relied upon the judgment of Hon'ble Apex Court in the case of Pesala Nookaraju v. Government of Andhra Pradesh and Others reported in 2023 SCC OnLine SC 1003.
11. Having heard the learned counsel for the parties, the only point that would arise for our consideration is:
"Whether the detention order passed by respondent No.4 dated 10.06.2024 detaining the detenue under Clause (g) and (f) of Section 2 of the Act is sustainable under law?"
12. Before delving into the merits of the case, it is appropriate to narrate the dictum/guidelines laid down by the Hon'ble Apex Court in the case of Nenvath Bujji v. State of Telangana and Others reported in 2024 SCC OnLine SC 367 while dealing with the cases of illegal detention. The Hon'ble Apex Court, 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, 14
(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 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 15 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 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."
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13. By applying the guidelines issued by the Hon'ble Apex Court in the above case to the facts and circumstances of this case, based on the submission of the learned counsel for the rival parties, as far as the primary contention of learned Senior counsel for the petitioner that the invocation of the Act in a case where the detenue involved only in the offence relating to gambling activities is concerned, on perusal of the detention order dated 10.06.2024 coupled with the grounds of detention, the same depicts that the detenue running recreation club at Basaveshwara Nagara, Bangalore in the name of Adiga Recreation Club and engaged in running the gambling activities in the club illegally without holding valid license or permission from the Competent Authority. Learned Senior counsel banked upon that the gambling activities will not attract the provision of Section 3 of the Act for the reason that the same will not in any manner prejudicial to the maintenance of the public order.
14. On careful perusal of the dictum/guidelines laid down in the case of Nenvathi Bujji referred supra and also in the case of Ameena Begum referred supra, the Hon'ble Apex Court drawn 17 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. Further, for an act to qualify as a disturbance to public 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.
15. The principles enumerated above juxtapose with the facts of the case on hand, it could be seen from the detention order that the detenue was involved in gambling activities and there are 4 cases filed against him during the year 2010-11 and thereafter in the year 2022-23, there are as many as 7 cases registered against him. All these cases have been committed by the detenue would not fall within the Chapter XVI, XVII and XXII of IPC i.e., the offences affecting human body, property and 18 criminal intimidation. Per contra, these cases have filed in respect of the alleged gambling activities committed by the detenue in the club. While considering the gravity of the case/offence arraigned against the detenue, we are of the considered view that the same does not pass the test of public disorder as held by the Hon'ble Apex Court in the case of Ameena Begum supra. Though the learned SPP-I argued that the neighbouring residents of the club have lodged 4 complaints against the detenue alleging about the annoyance undergone by them, nonetheless, there was no such investigation conducted in those cases and the Police have closed those complaints by issuing endorsement of Non Cognizable Registers (NCR). Hence, the same cannot be taken into consideration as a relevant factor to connect the act of detenue within the ambit of public disorder. Hence, we find substantial force in the first limb of the argument advanced by the learned Senior counsel.
16. Nevertheless, as rightly contended by the learned Senior counsel that the respondents failed to place sufficient materials in the detention order to substantiate the aspect of 19 alleged gambling activity committed by the detenue in the club which attracts the provision of Section 2(7) of Karnataka Police Act i.e., 'Gaming'. Admittedly, a 'Game of Skill' does not fall within the definition of 'Gaming' as prescribed under explanation Sub-clause (ii) i.e., 'Game of Chance' to Section 2(7) of the Karnataka Police Act. Further, generally in the recreation club, the 'Game of Skills' are allowed and to run the same, a separate license is not required apart from obtaining license to run the club. In such circumstance, mere seizure of a cash of Rs.7,22,480/- from the recreation club allegedly run by the detenue itself is not adequate to draw an inference against the detenue that he was indulged in a 'Game of Chance'.
17. As far as the contention raised by the learned Senior counsel in respect of non mentioning of the period of detention in the detention order, as rightly contend by the learned SPP-I, as per the law laid down by the Hon'ble Apex Court in the case of Pesala Nookaraju referred supra, there is no such compulsion to prescribe the specific period in the detention order when the State Government passes a confirmatory order under Section 12 20 of the Act after receipt of the report from the advisory Board. If the period is not specified in the confirmatory order, then it would be for a maximum period of 12 months from the date of detention.
18. In the case on hand, the order of detention was served to the detenue on time and his representation was forwarded to respondent No.4 and also to the Advisory Board on 18.06.2024 itself. Thereafter, on 24.06.2024, the State Government rejected the representation of the detenue and the Advisory Board also confirmed the order of State Government vide order dated 24.07.2024. In such circumstance, even if a specific period is not mentioned in the detention order, it shall be treated as a maximum period of 12 months from the date of detention. Hence, the second limb of the argument of the learned Senior counsel does not hold good.
19. Having assumed the primary contention of the learned Senior counsel in favour of the detenue and on overall consideration of the facts and circumstances of the case, we are of the view that the case on hand does not pass the test of 21 guidelines issued by the Hon'ble Apex Court in the cases of Nenvathi Bujji and Ameena Begum referred supra and 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. Having been failed to exhaust such remedy, invoking the provisions of the Act and keeping the detenue under illegal detention violates the Fundamental Rights of the detenue enstrained under the Constitution. There is no proper justification or rationale is forthcoming from the order of detention or the subsequent orders. Hence, we hold the above raised point in favour of the petitioner i.e., in negative and proceed to pass the following:
ORDER i. The Writ Petition is allowed.
ii. Impugned detention order passed by
respondent No.4 bearing No.01/CRM
(4)/DTN/2024 dated 10.06.2024 and
consequent confirmation order bearing No.HD 257 SST 2024, Bengaluru dated 15.06.2024 passed by respondent No.2 stand quashed. 22
Consequently, the respondents are directed to set the detenu at liberty, forthwith.
iii. However, Registry is directed to communicate this Order to respondent Nos.2 and 4 as well as the Jail Authorities to release the detenu forthwith, in case, he is not required in any other cases.
iv. Accordingly, the Registry shall return the records submitted by the State Government to the learned HCGP, who is on record, after obtaining necessary endorsement in that regard.
No order as to Costs.
Sd/-
(V KAMESWAR RAO) JUDGE Sd/-
(RAJESH RAI K) JUDGE HKV