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2015 DIGILAW 886 (KAR)

P. Vijayalakshmi v. Commissioner of Police

2015-08-07

MOHAN M.SHANTANAGOUDAR, R.B.BUDHIAL

body2015
ORDER : Mohan M. Shantanagoudar, J. This Habeas Corpus petition is filed questioning the validity of the order dated 8-5-2015 passed by the 1st respondent; the order of approval dated 16-5-2015 passed by the 2nd respondent and the order of confirmation dated 18-6-2015. The order at Annexure-A, dated 8-5-2015 is passed by the Commissioner of Police, Bangalore City in exercise of the powers conferred on him under Section 3(2) read with Section 3(1) 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 ('the Act' for short) for detaining Mr. Lokesha alias Mulama s/o late Venkatesha. The Commissioner of Police being satisfied that the said Lokesha is a goonda as defined under clause (g) of Section 2 of the Act, with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, passed the order of detention. Along with the detention order, grounds of detention were served on the detenue. The order of detention dated 8-5-2015 passed under Section 3(2) read with Section 3(1) of the Act vide Annexure-A is approved by the 2nd respondent as per Annexure-C, dated 16-5-2015. Subsequently, the detention order is confirmed by the 2nd respondent on 18-6-2015 vide Annexure-D. All the aforementioned orders are impugned in this writ petition. 2. Sri Kiran S. Javali, learned Advocate appearing on behalf of the petitioner taking us through the grounds of detention and the documents served on the detenue, argued among other grounds that illegible copies of relevant relied upon documents were furnished to the detenue by the detaining authority; that the copies of bail application and the bail order relied upon by the detaining authority are not furnished to the detenue and hence the detenue did not have adequate opportunity to submit the representation before the detaining authority as well as the State Government. Learned Advocate draws the attention of the Court to the specific contentions taken by the petitioner (the wife of the detenue) in the writ petition at paragraphs 11, 12 and 13. Learned Advocate draws the attention of the Court to the specific contentions taken by the petitioner (the wife of the detenue) in the writ petition at paragraphs 11, 12 and 13. He further submits that the detenue admittedly does not know English; though the detenue is furnished with three volumes (1,245 pages, in total) containing the relied upon documents for passing the detention order, number of the relied upon documents found therein are in English; Kannada translation of the said documents has not been furnished and hence the detenue has not been able to understand the contents of such documents, which has badly affected his right to make appropriate representation before the concerned. Learned Advocate for the petitioner lastly submits that the representation of the detenue filed before the Advisory Board is not considered by the State Government and hence the detention order is liable to be quashed. All the submissions of Sri Javali, learned Advocate for the petitioner are opposed by the learned Government Advocate drawing the attention of the Court to the relevant records. 3. In the matter on hand, though the detention order and the grounds of detention were served on the detenue and though the grounds of detention specify that it is open for the detenue to make representation before the detaining authority, the Advisory Board as well as the State Government, the detenue has made representation only before the Advisory Board and he has not made any representation either before the detaining authority or the State Government. Despite the same, learned Counsel for the petitioner argues that it is incumbent on the State Government to consider the representation filed by the detenue before the Advisory Board inasmuch as the representation was sent through the State Government. He relies upon the five-judges Bench judgment of the Apex Court in the case of Jayanarayan Sukul v. State of West Bengal, AIR 1970 SC 675 : (1970)1 SCC 219 : 1970 Cri. L.J. 743 (SC): 1970 SCC (Cri.) 92 in support of the said contention. In the case of Jayanarayan, the Apex Court has observed that the concerned State Government is to exercise its opinion and judgment on the representation before sending the case along with the detenue's representation to the Advisory Board. In the case of Jayanarayan, the detenue had made representation to the State Government. In the case of Jayanarayan, the Apex Court has observed that the concerned State Government is to exercise its opinion and judgment on the representation before sending the case along with the detenue's representation to the Advisory Board. In the case of Jayanarayan, the detenue had made representation to the State Government. In that context, the Apex Court in the said case has concluded that it is incumbent on the part of the State Government to consider the representation of the detenue before placing the papers before the Advisory Board. But in the matter on hand, no representation has been filed by the detenue before the State Government and therefore there was no occasion for the State Government to consider the non-existing representation. In this context, the learned Government Advocate is justified in relying upon the three-judges Bench judgment of the Apex Court in the case of R. Keshava v. M.B. Prakash and Others, AIR 2001 SC 301 : 2001 Cri. L.J. 497 (SC): 2001 SCC (Cri.) 289 : (2001)2 SCC 145 . In the case of R. Keshava, the Apex Court has ruled that Sections 8(c) and 8(f) and other relevant provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) make it clear that no duty is cast upon the Advisory Board to furnish the whole of the record and the representation addressed to it to the Government; a perusal of the aforementioned sections and other relevant provisions of the COFEPOSA Act makes it abundantly clear that no duty is cast upon the Advisory Board to furnish the whole of the record including the representation addressed to it to the Government along with its report prepared under Section 8(c) of the COFEPOSA Act; it may be appropriate for the Advisory Board to transmit the whole record along with the report, if deemed expedient but omission to send such record or report would not render the detention illegal; so also no obligation is cast upon the appropriate Government to make inquiries for finding out as to whether the detenue has made any representation, to any person or authority, against his detention or not. From the aforementioned observations of the Apex Court, it is clear that it is not necessary for the State Government to consider the representation, if any filed before the Advisory Board inasmuch as the Government may not have the knowledge of the same. In paragraph 17 of the very judgment, the Apex Court has further observed as under: "17....... Despite knowledge, the detenue did not avail of the opportunity. Instead of making a representation to the appropriate Government or the confirming authority, the detenue chose to address a representation to the Advisory Board alone even without a request to send its copy to the authorities concerned under the Act. In the absence of representation or the knowledge of the representation having been made by the detenue, the appropriate Government was justified in confirming the order of detention on perusal of record and documents excluding the representation made by the detenue to the Advisory Board. For this alleged failure of the appropriate Government, the order of detention of the appropriate Government is neither rendered unconstitutional nor illegal." (emphasis supplied) 4. Having regard to the aforementioned observations, we conclude that for the alleged failure of the appropriate Government to consider the representation filed before the Advisory Board, the order of the detention of the appropriate Government is neither unconstitutional nor illegal. 5. According to the detenue, he does not know English language and he knows only Kannada and Telugu languages; though he (detenue) has been furnished three volumes containing 1,245 pages in total and though such volumes contain relied upon documents for passing the detention order, number of the documents found therein are in English and Kannada translation of the said documents has not been furnished and hence his right to make appropriate representation is affected. As aforementioned, it is further case of the detenue that the copies of bail application and the bail orders relied upon by the detaining authority are not furnished to the detenue; illegible copies of the relevant relied upon documents were furnished to the detenue by the detaining authority and thereby the detenue did not have adequate opportunity to furnish the representation. Such contention appears to be well-founded. Such contention appears to be well-founded. The petitioner has specifically taken up the contention in paragraphs 12 and 13 of the writ petition that the State Government has not furnished Kannada translation of certain documents (which are in English) served on the detenue along with the grounds of detention. So also in paragraph 13 of the writ petition, the petitioner has specifically highlighted that certain of the pages (which are specifically mentioned in the said paragraph) are illegible and therefore the detenue did not have opportunity to make effective representation. Though such a specific contention as mentioned supra is taken by the petitioner in the writ petition, the State Government did not explain such contention of the petitioner properly in its statement of objections. On the other hand, in paragraph 15 of the statement of objections, the State Government admits that some of the documents are in Kannada and some are in English and at no point of time, the detenue insisted for the translated copies of the documents which are in English and therefore the detaining authority read over the same to the detenue and obtained his signature. However it is pleaded in paragraph 16 of the statement of objections that wherever illegible copies are sewed on the detenue, the typed copies of the same are furnished to the detenue and thus all the documents are legally supplied to the detenue. 6. In order to verify the correctness of the contention of the petitioner and counter-contentions of the State Government, we have gone through the records meticulously. On going through the records, we find that the contention of the petitioner needs to be upheld in respect of non-furnishing of the translated copies to the detenue along with the grounds of detention. Undisputedly, the relied upon documents disclose that pages 77 to 85, 91 to 53, 119 to 137, 199 to 204, 223 to 227, 313 to 315, 395 to 440, 522, 523, 736, 742, 746, 747, 807 to 813, 801 to 806, 1036 to 1042, 1093 to 1117 and 1206 are either fully in English or a portion of such pages are in English language. The State Government has not at all contended that those documents are not relied upon by the detaining authority while passing the order. The State Government has not at all contended that those documents are not relied upon by the detaining authority while passing the order. If it is so, the contention of the petitioner that those documents are relied upon by the detaining authority needs to be accepted. It is specified in the grounds of detention itself that the detenue can read, write and understand Kannada and Telugu languages and he also speaks Hindi language. Despite the same, the detaining authority did not choose to furnish Kannada translation of English documents to the detenue along with the grounds of detention. It is relevant to note that, along with the statement of objections filed before this Court, the learned Government Advocate has supplied the copies of the translated documents in Kannada to the petitioner's Counsel. This also clearly reveals that such translated copies which are relied upon by the detaining authority were not made available to the detenue along with the grounds of detention. It is by now well-settled that the detenue should be made available all the relevant relied upon documents in the language known to him so as to enable him to understand the grounds and file the representation satisfactorily. Though the State Government has contended in its statement of objections that the English versions found in the relied upon documents are translated orally to the detenue by the detaining authority, the affidavit of such officer/detaining authority affirming the same is not filed. So also the grounds of detention does not disclose that the detaining authority has explained the materials found in English language to the detenue by translating them to Kannada language. 7. In this connection, it is useful to refer the decision of the Apex Court in the case of Ibrahim Ahmad Batti v. State of Gujarat and Others, AIR 1982 SC 1500 : (1982)3 SCC 440 :1983 SCC (Cri.) 66, wherein the Apex Court has held as under: "13 All these, in our view, are material documents which have obviously influenced the mind of the detaining authority in arriving at its subjective satisfaction and these are all in a script or language not understood by the detenue, and therefore, the non-supply of Urdu translations of these documents has clearly prejudiced the petitioner in the exercise of his right to make an effective representation against his detention and hence the safeguard contained in Article 22(5) is clearly violated. 14. 14. Having regard to the above discussion, it is clear to us that the continued detention of the petitioner would be illegal and we accordingly quash the same and direct him to be released forthwith." In the aforementioned case of Ibrahim Ahmad Batti, the detenue was knowing Urdu language and non-supply of Urdu translation of material documents was seriously commented by the Supreme Court and consequently Supreme Court proceeded to quash the detention order on the said ground. In the matter on hand, the detenue admittedly knew only Kannada and Telugu languages, but some of the material documents which are relied upon by the detaining authority are in English. Thus we conclude that non-supply of Kannada translation of these relied upon documents has clearly prejudiced the detenue in the exercise of his right to make an effective representation against the detention and hence the safeguards contained in Article 22(5) of the Constitution are clearly violated. 8. We also find that though certain of the illegible copies are served on the detenue by the detaining authority, he is also served with the typed copies of the same in respect of certain of the pages only. The illegible copies found in pages 156, 158, 160, 162 and 164 were typed and served on the detenue. However the documents at pages 167, 169, 170, 175, 179, 224, 226, 279, 734, 735, 752 and 980 to 985 though are illegible, were not typed and served on the detenue. In our considered opinion, the non-supply of legible copies of the aforementioned documents which are relied upon by the detaining authority render the order of detention illegal and bad. 9. In this connection, it is useful to refer the decision of the Apex Court in the case of Bhupinder Singh v. Union of India, (1987)2 SCC 234 : 1987 SCC (Cri.) 328, wherein the Apex Court has quashed the order of detention on the ground that the legible copies of the documents were not served along with the grounds of detention, but were supplied to the detenue after the detention order was confirmed. It is also useful to refer the decision of the Apex Court in the case of Dharmista Bhagat v. State of Karnataka, 1989 Supp. (2) SCC 155 : 1990 SCC (Cri.) 39, wherein it is held as under: "7. It is also useful to refer the decision of the Apex Court in the case of Dharmista Bhagat v. State of Karnataka, 1989 Supp. (2) SCC 155 : 1990 SCC (Cri.) 39, wherein it is held as under: "7. Considering these decisions we are constrained to hold that the refusal on the part of the detaining authority to supply legible copies of the said relevant document to the detenue for making an effective representation infringed the detenue's right under Article 22(5) of the Constitution. The order of detention is, therefore, set aside and the detenue is directed to be released forthwith. The appeal is thus allowed." 10. In the matter on hand also, some of the illegible copies are not got typed by the authority and are not supplied to the detenue. It is also clear from the records that most of the illegible copies are not readable. We have personally perused the illegible copies. We are unable to read the single sentence from such illegible copies supplied to the detenue. Hence we conclude that failure on the part of the detaining authority to supply legible copies of the relevant documents to the detenue has infringed the detenue's right under Article 22(5) of the Constitution of India to make an effective representation. 11. From the discussion made supra, it is clear that the detenue was furnished with either certain of the illegible copies of the relied upon documents by the detaining authority or he was served with certain documents which were in English (the language which is unknown to the detenue). Hence the detenue did not have adequate opportunity to make effective representation and consequently the order of confirmation of detention is bad in the eye of law. Accordingly, the writ petition is liable to be allowed. Hence we pass the following order. Writ petition is allowed. The impugned orders at Annexure-A, dated 8-5-2015, Annexure-C, dated 16-5-2015 and Annexure-D, dated 18-6-2015 stand quashed. The detenue-Lokesha alias Mulama s/o Late Venkatesha shall be released forthwith, in case if he is not required in any other crime. It is open for the State Government to pass orders afresh in accordance with law, if it so chooses.