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2015 DIGILAW 1228 (KAR)

Rakhi Prakash Pawar v. Commissioner of Police

2015-11-05

P.S.DINESH KUMAR, R.B.BUDHIAL

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ORDER : Budihal R.B., J. 1. This is a petition filed by the petitioner praying to issue a writ of Habeas Corpus and to declare detention order passed by respondent 1 in No. CCRB: Belagavi City: Goonda Act:283:2015, dated 30-5-2015 vide (Annexure-A) and confirmed by respondent 2 in No. HD 257 SST 2015, dated 30-6-2015 (Annexure 3) as illegal and void ab initio and to grant consequential reliefs in the matter. Brief facts leading to filing of this petition are that, detenue has been detained in Central Jail, Ballari in pursuance of an order of detention purported to have been passed by respondent under Section 2(g) 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 'Goonda Act'), dated 30-5-2015 as per Annexure-A. Detenue was served with copies of order of detention passed by respondent 1 in Kannada language which is produced as per Annexure-A. Detenue has purportedly been served with grounds of detention and the materials relied upon in passing the detention order in a bound volume. Grounds of detention furnished to the detenue in English language is produced as Annexure-B and Kannada translation is produced as per Annexure-B1. The order of detention passed by the respondent was required to be forwarded to the respondent 2 along with grounds on which order was made and documents relied upon and the same was required to be approved by respondent 1 within 12 days of issue of order of detention as provided under Section 3(3) of the Act. It is further submitted that respondent 1 detained the detenue by passing such order and the same is erroneous, illegal and passed in total defiance of the law of preventive detention and the further approval of the same by respondent 2 is also bad and hence it is liable to be set aside. 2. The petitioner has also raised grounds alleging that the detention order is illegal and it violates all the provisions of Article 22(5) of the Constitution of India. The grounds urged are from paragraphs 7 to 17 of the petition. 3. The respondents filed statement of objections to the petition contending that after passing the detention order along with the grounds of detention, copies are served to the detenue in three languages, i.e., Kannada, English and Marathi. The grounds urged are from paragraphs 7 to 17 of the petition. 3. The respondents filed statement of objections to the petition contending that after passing the detention order along with the grounds of detention, copies are served to the detenue in three languages, i.e., Kannada, English and Marathi. It is also contended in the objection statement that the detenue is involved in any criminal cases. In the year 2011 his name was entered in rowdy sheet as he was involved in prejudicial activities to the maintenance of peace. It is further contended that after getting reports from the concerned Police authority about the antecedents of the detenue it was necessary for the detaining authority to pass such order for detention of the detenue. It is further contended that there is no illegality committed by the respondent-authorities in passing such order. The order of detention with its confirmation and continuation of the said order is in accordance with law. Thus, respondents have sought for dismissal of the petition. 4. We have heard arguments of the learned Counsel appearing for the petitioner and also the learned Government Advocate appearing for the respondent-authorities. 5. Learned Counsel appearing for the petitioner during the course of his arguments submitted that the material supplied by the respondent-authorities themselves goes to show that the detenue had studied in Marathi School and he was knowing reading, writing and speaking in Marathi language. It is also submitted by the learned Counsel that materials were supplied in Kannada and English language but it is not the case of the respondent-authorities that he was knowing reading and writing in both Kannada and English language also. But it is mentioned in their proceedings that he knew to speak in Kannada and English also. Hence, learned Counsel made submission that along with the detention order the grounds of detention were also supplied which was voluminous in nature. The main object of providing the grounds of detention to the detenue is to enable him to make an effective representation either before the detaining authority or before the Advisory Board or before any other Competent Authority. Learned Counsel submitted that this will be possible only after the detenue reading the entire material supplied to him. The main object of providing the grounds of detention to the detenue is to enable him to make an effective representation either before the detaining authority or before the Advisory Board or before any other Competent Authority. Learned Counsel submitted that this will be possible only after the detenue reading the entire material supplied to him. But, in this case when he does not know reading and writing of Kannada and English languages he was not able to read, write, understand and digest the contents of order to make an effective representation. Therefore, the learned Counsel submitted that this infirmity in law goes to show that the fundamental right of the petitioner guaranteed under the Constitution under Article 22(5) has been clearly violated by the respondent-authorities. Because of this reason he was not able to make effective representation or put forth his case with true facts. In this connection learned Counsel has drawn our attention to the order passed by a Division Bench of this Court sitting at Principal Bench, Bengaluru, dated 7-8-2015 passed in W.P.H.C. No. 97 of 2015 (Smt. P. Vijayalakshmi v The Commissioner of Police, Bangalore City, Bangalore and Others 2015(6) Kar. L.J. 686 (DB)). This Court in the said judgment has held that if the materials were not supplied in the language that was known to the detenue, the same amounts to clear violation of the fundamental right under Article 22(5) of the Constitution. Hence, learned Counsel relied upon the said decision in support of this contention and submitted that, on this ground itself the detenue is entitled to be released forthwith. 6. Another submission made by the learned Counsel is that according to the materials supplied by the respondent-authorities, when the detention order was passed and served, he was already in custody. Hence, he submitted that when the detenue was already in custody at the time of passing and serving detention order, the entire exercise is opposed to concept of preventive detention. In this connection learned Counsel took us through the decision of the Hon'ble Supreme Court in the case of N. Meera Rani v Government of Tamil Nadu and Another AIR 1989 SC 2027 : (1989)4 SCC 418 : 1989 SCC (Cri.) 732 : 1989 Cri. L.J. 2190 (SC) and relied upon paragraphs 10, 11, 12, 14 to 20 of the said decision. 7. L.J. 2190 (SC) and relied upon paragraphs 10, 11, 12, 14 to 20 of the said decision. 7. Learned Counsel also relied upon another decision of the Hon'ble Supreme Court in the case of Kamarunnissa v Union of India and Another AIR 1991 SC 1640 : (1991)1 SCC 128 : 1991 Cri. L.J. 2058 (SC): 1991 SCC (Cri.) 88. He submitted that though there may not be absolute bar to pass an order of detention against a person who was already in custody while passing the order, it defeats the very purpose of an order of preventive detention. He submitted that when detenue in this case was already in custody according to the respondent-authorities there was no necessity to pass another order of detention. Therefore, there is clear non-application of mind on the part of detaining authority as well as the Government. 8. Learned Counsel submitted that all these aspects of the proceedings, i.e., the detention order, grounds of detention and all other materials relied upon by the respondents will show non-application of mind while recording satisfaction as admittedly, the detenue was in custody at the time of passing and service of detention order. 9. In this connection learned Counsel drew our attention to the relevant paragraphs in the said decision in the case of N. Meera Rani and submitted that because of said lapses, the rights of the detenue have been affected adversely and he has been prejudiced in the matter of making effective representation. Hence, learned Counsel submitted that it is a matter wherein this Court ought to interfere and quash the detention order. 10. Per contra, learned Government Advocate during the course of his arguments submitted that the first contention raised by the learned Counsel for the petitioner regarding furnishing the translated version of the detention order as well as the grounds of detention which was served on the detenue is untenable because the detenue was knowing other languages, i.e., Kannada and English, and only on the ground that the materials were not translated into Marathi language, it cannot be held that the detention order is violative of the fundamental rights. 11. He further drew the attention of the Bench to the relevant paragraph in the decision of the Apex Court in the case of Prakash Chandra Mehta v Commissioner and Secretary, Government of Kerala and Others AIR 1986 SC 687 : 1985 Supp. 11. He further drew the attention of the Bench to the relevant paragraph in the decision of the Apex Court in the case of Prakash Chandra Mehta v Commissioner and Secretary, Government of Kerala and Others AIR 1986 SC 687 : 1985 Supp. SCC 144 : 1985 SCC (Cri.) 332 : 1986 Cri. L.J. 786 (SC). He submitted that if the detenue is knowing Kannada and English languages then it is more than sufficient and it cannot be said that he was not furnished with the grounds of his detention in the manner that he could understand i.e., in Marathi language. Hence, he submitted that on this ground, the detention order cannot be held as violative of the provisions of the Constitution. 12. In reply to the ground canvassed by the learned Counsel for the petitioner that the detenue was already in custody at the time of serving the order, learned Government Advocate submitted the aspects which have been taken into consideration while passing the detention order have been placed on record in paragraph 11 of statement of objections. Only after proper and objective consideration and taking note of all facts and circumstances, detention order has been passed. Therefore, it cannot be held that the same is violative of the provisions of the Constitution. Hence, the learned Government Advocate submitted that the order of detention passed in this case is justified as it is in accordance with the provisions of law and no illegality has been committed. Accordingly, he prayed that this petition may be rejected. 13. We have carefully considered the contentions urged by the learned Counsel for the petitioner and the learned Government Advocate and perused the impugned orders and records. At page 2 of the grounds of detention order, it is stated as under: "As per the report of the Deputy Commissioner of Police (Law and Order), Belagavi City, you are 32 years old and a resident of Nathpai Nagar, Angol, Belagavi (as per the residential certificate issued by the Village Accountant, Belagavi). You are residing with your parents in Angol area of Belagavi City. Also, you have studied in Government, Marathi School No. 34, Angol, Belagavi (upto VII Standard) and that you can read, write and speak in Marathi language and you can speak and understand Kannada language." 14. You are residing with your parents in Angol area of Belagavi City. Also, you have studied in Government, Marathi School No. 34, Angol, Belagavi (upto VII Standard) and that you can read, write and speak in Marathi language and you can speak and understand Kannada language." 14. Perusal of above narration contained in the grounds of detention clearly goes to show that the detenue studied in Marathi School upto 7th Standard. He can read, write and speak in Marathi language and he can speak and understand Kannada language. 15. There is no mention that the detenue can understand English language. So far as Kannada language is concerned, it is mentioned in the narration that he can understand Kannada language. Bound volumes of documents have been supplied to the detenue along with the detention order. So, the entire materials had to be gone into by the detenue before making his representation to put forth his case before the concerned authorities including the detaining authorities. This was not possible because documents which were relied upon and supplied to the detenue were not translated into Marathi language. 16. The principle enunciated in the decision relied upon by the learned Counsel for the petitioner when applied to the facts of this case shows that there is clear violation of the fundamental right under Article 22(5) of the Constitution of India. Unless the detenue understood all materials he cannot make effective representation either before the Advisory Board or before the detaining authority or before the Competent Authority to seek redressal of for his grievance. 17. Looking to the materials on record and the submissions made by the learned Counsel appearing for the petitioner, we are satisfied that non-supply of material in Marathi language has adversely affected the rights of the detenue in this case. 18. We have also perused the decision relied upon by the learned Government Advocate with regard to language known to the detenue. Learned Government Advocate drew our attention to paragraphs 62, 63 and 65 of the judgment of the Apex Court in the case of Prakash Chandra Mehta, which reads as follows: "62. 18. We have also perused the decision relied upon by the learned Government Advocate with regard to language known to the detenue. Learned Government Advocate drew our attention to paragraphs 62, 63 and 65 of the judgment of the Apex Court in the case of Prakash Chandra Mehta, which reads as follows: "62. In the instant case it was submitted that assuming that Venilal Mehta knew Hindi, the translated copy of the English grounds was admittedly made available to him in Hindi language on 30th June, 1984 - beyond a period of five days and for which neither any exceptional circumstances existed nor any reason given. Moreover it was urged that the annexures in Malayalam language retained their places while supplying the translated copy of the grounds of detention in Hindi language. Therefore it was urged that there was non-compliance with the provisions of the Act. 63. It will be appropriate to deal with the first ground. Whether the grounds should have been communicated in the language understood by the detenues? The Constitution requires that the grounds must be communicated. Therefore, it must follow as an imperative that the grounds must be communicated in a language understood by the person concerned so that he can make effective representation. Here the definite case of the petitioner's father is that he does not understand English or Hindi or Malayalam and does understand only Gujarati language. The facts revealed that the detenue Venilal was constantly accompanied and was in the company of his daughter as well as son both of them knew English very well. The father signed document in Gujarati which was written in English which is his mercy petition in which he completely accepted the guilt of the involvement in smuggling. That document dated 30th June, 1984, contained, inter alia, a statement "I myself am surprised to understand what prompted me to involve in such activity as dealing in Imported Gold". He further asked for mercy. There is no rule of law that common sense should be put in cold storage while considering constitutional provisions for safeguards against misuse of powers by authorities though these constitutional provisions should be strictly construed. He further asked for mercy. There is no rule of law that common sense should be put in cold storage while considering constitutional provisions for safeguards against misuse of powers by authorities though these constitutional provisions should be strictly construed. Bearing this salutary principle in mind and having regard to the conduct of the detenue Venilal Mehta specially in the mercy petition and other communications, the version of the detenue Venilal is feigning lack of any knowledge of English must be judged in the proper perspective. He was, however, in any event given by 30th June, 1984, the Hindi translation of the grounds of which he claimed ignorance. The gist of the annexures which were given in Malayalam language had been stated in the grounds. That he does not know anything except Gujarati is merely the ipse dixit of Venilal Mehta and is not the last word and the Court is not denuded of its powers to examine the truth. He goes to the extent that he signed the mercy petition not knowing the contents, not understanding the same merely because his wife sent it though he was sixty years old and he was in business and he was writing at a time when he was under arrest, his room had been searched, gold biscuits had been recovered from him. Court is not the place where one can sell all tales. The detaining authority came to the conclusion that he knew both Hindi and English. It has been stated so in the affidavit filed on behalf of the respondent. We are of the opinion that the detenue Venilal Mehta was merely feigning ignorance of English. ...................... 65. The principle is well-settled. But in this case it has to be borne in mind that the grounds were given on 25th June, 1984 following the search and seizure of gold biscuits from his room in the hotel in his presence and in the background of the mercy petition as we have indicated and he was in constant touch with his daughter and sons and there is no evidence that these people did not know Hindi or English. Indeed they knew English as well as Hindi. It is difficult to accept the position that in the peculiar facts of this case, the grounds were not communicated in the sense the grounds of detention were not conveyed to the detenue Venilal. Indeed they knew English as well as Hindi. It is difficult to accept the position that in the peculiar facts of this case, the grounds were not communicated in the sense the grounds of detention were not conveyed to the detenue Venilal. Whether grounds were communicated or not depends upon the facts and circumstances of each case." In the said judgment, an affidavit was filed by the respondent-authorities about the detenue knowing the other languages also. Detenue in the said case had made his representation in English and signed in Gujarathi. It was observed by their Lordships in the said decision that he was in constant touch with his son and daughter who knew English language. But, in the case on hand, according to the detaining authority, the detenue had studied in Marathi language and knew reading, writing and speaking in Marathi. Therefore, the ratio of above judgment is not applicable to the facts of the case on hand. Therefore, the said decision will not come to the aid and assistance of the respondent-authorities in opposing the petition. 19. Coming to the second contention that the detenue was already in custody when the order of detention was passed and it was contended by the learned Counsel for the petitioner that when it was within the knowledge of the concerned authorities that he was already in custody, There was no necessity to pass such detention order. Further it is not supported by any cogent reasons to justify issuance of detention order while the detenue was already in custody. Further subjective satisfaction of the detaining authority is also not forthcoming in the detention order. Relevant portion of the detention order reads as follows: "I hereby direct that the said Prakash Lala Pawar alias Balu, son of Lal Pawar, aged 32 years, r/o. Nathpai Nagar, Angol, Belagavi, who is currently in Belagavi Central Jail (UTP No. 2046) be detained in Central Prison, Ballari." 20. It is no doubt true that, it is contended in paragraph 11 of the statement of objection that after getting a report from the police, the detaining authority came to the conclusion that the detenue had not corrected himself inspire of warning given to him and he continued his prejudicial activities and indulged in disturbing the peace which necessitated them to pass the impugned order. 21. 21. According to the learned Government Advocate, in the year 2011 detenue's name was included in the rowdy sheet. The detention order is passed in the year 2015. Thus, there is no proximity with the date of inclusion of detenue's name in the rowdy sheet and passing the detention order. The authorities had come to know that he was a rowdy sheeter and his activities were prejudicial to the maintenance of public order and peace about 4 years prior to issuance of detention order. However, no action was taken against the detenue to detain him under the preventive detention. But, all of a sudden, after lapse of four years the impugned detention order has been passed against the detenue. The reasons recorded by the detaining authority are far from satisfactory. We have also given our thoughtful consideration to the decisions and principles relied upon by the learned Counsel. No doubt it is true that there cannot be a straightjacket formula to the effect that no detention order could be passed against a person who was already in custody. As observed by their Lordships of the Apex Court, Court has to examine each and individual case on it's individual merit with regard to facts and circumstances involved in that particular case. After examining all the factual aspects in detail based on available material on record we are not convinced about the reasons assigned by the respondent-authorities. Therefore, perusing the entire materials on record we are of the opinion that the detention order passed by the respondent-authorities is not sustainable in law. Accordingly, they are held to be illegal and void ab initio. Hence, the following order is passed: "ORDER Writ petition (Habeas Corpus) is allowed. Detention order of Prakash Lala Pawar, son of Mallappa Lala alias Pawar passed by the respondent 1 in No. CCRB: Belagavi City: Goonda Act: 283:2015, dated 30-5-2015 vide (Annexure-A) and confirmed by respondent 2 in No. HD 257 SST 2015, dated 30-6-2015 (Annexure-B) are held as illegal and void ab initio and is hereby quashed. Concerned prison authorities are hereby directed to release the detenue forthwith if he is not required in any other case. High Court registry is hereby directed to send operative portion of the order to the concerned prison authorities for compliance."