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2017 DIGILAW 596 (KAR)

Rekha Suresh v. State of Karnataka

2017-03-14

B.S.PATIL, B.V.NAGARATHNA

body2017
ORDER : Nagarathna, J. The petitioner is stated to be the wife of detenu - Suresh alias Jackie Suresh Ahmed, s/o. Late Thammaiah, who has been detained under the provisions of Karnataka Prevention of Dangerous Activities of Bootleggers, Drug offenders, Gamblers, Goondas, Immoral Traffic offenders and Slum-Grabbers Act, 1985 (hereinafter, called as the 'Act' for the sake of brevity). 2. According to the petitioner, the detenu was taken into custody on 25/11/2016. The grounds of detention along with the order of detention and the English translation thereof, were furnished to him. A copy of the detention order and its translation are at Annexures 'A' and 'B' respectively and a copy of the grounds of detention and its English translation are at Annexures 'C' and 'D' respectively. In the grounds of detention, it is stated that several cases have been registered against the detenu in Periyapattana Police Station in Crime Nos. 48/2010, 193/2010, 201/2010, 212/2014, 23/2015, 124/2015 and 219/2016, for the offences punishable under Section 4(1)(a)(c) of the Karnataka Lotteries and Prize Competitions Control and Tax Act, 1951. That some of the cases are pending trial and in one of the cases, the detenu is acquitted and in another case, he is convicted. That on 07/10/2016, the detenu was arrested in respect of another case and he is in judicial custody and while being so, the detention order was passed stating that the detenu has been creating law and order problem, threatening public peace and that a rowdy sheet is opened concerning the detenu at Periyapattana Police Station on 28/07/2007. It is further averred in the writ petition that on 01/12/2016, a corrigendum to the detention order was passed by substituting the word 'gambler' in place of the word 'goonda' and in the corrigendum issued in Kannada also, the same has been stated. Annexure 'E' is the corrigendum order in Kannada, while English translation is at Annexure 'F'. That on 25/11/2016, the second respondent who passed the order of detention forwarded the order along with the relevant documents to the State Government and the State Government has approved the order of detention on 05/12/2016 vide Annexure 'G'. Annexure 'E' is the corrigendum order in Kannada, while English translation is at Annexure 'F'. That on 25/11/2016, the second respondent who passed the order of detention forwarded the order along with the relevant documents to the State Government and the State Government has approved the order of detention on 05/12/2016 vide Annexure 'G'. That after receipt of the opinion from the State Advisory Board on 26/12/2016, the State Government has confirmed the order of detention dated 25/11/2016 and has extended the period of detention for a period of twelve months from the date of detention vide Annexure 'H'. Being aggrieved by the order of detention, the approval thereof and the subsequent confirmation of the order of detention by the State Government, this writ petition has been preferred by the detenu's wife raising several grounds. 3. We have heard learned counsel for petitioner and learned Addl. Government Advocate for respondents and perused the material on record. 4. Though several grounds have been raised in the memorandum of writ petition impugning the order of detention, at the time of arguments, learned counsel for petitioner focused on only one submission, which is, that the order of detention is vitiated on account of non-application of mind particularly, having regard to the corrigendum issued on 01/12/2016 by the second respondent. Elaborating the said contention, learned counsel for petitioner drew our attention to the fact that the detenu has been detained under the provisions of the Act having regard to Section 2(g) of the Act, which defines the expression 'goonda'. Whereas, under the corrigendum, it is stated that the detention is on account of Section 2(f) of Chapter VII of the Karnataka Police Act, 1963, which defines the expression 'gambler'. He contended that this is not a case of an inadvertent error in invoking a provision of an Act but the order of detention is vitiated by the fact that the detaining authority intended to detain the detenu on the premise that he is a 'gambler' under the provisions of the Karnataka Police Act, 1962 but he has been detained as a 'goonda' under the provisions of the Act. 5. Placing reliance on an order of the Division Bench of this court passed in W.P. No.80/2016, dated 07/07/2014, he contended that there is a total discrepancy between the original order of detention and the corrigendum and, therefore, it is a case of non-application of mind. 5. Placing reliance on an order of the Division Bench of this court passed in W.P. No.80/2016, dated 07/07/2014, he contended that there is a total discrepancy between the original order of detention and the corrigendum and, therefore, it is a case of non-application of mind. Hence, the order of detention would have to be quashed on that ground alone. 6. Per contra, learned Addl. Govt. Advocate appearing for the State supported and defended the impugned order of detention and contended that the error in stating the provision of law cannot lead to a conclusion that the order of detention is vitiated. He contended that the detenu is a habitual offender and that persons such as the detenu herein, are a threat to law and order, peace and tranquillity in the society and thus, there is no merit in the writ petition. 7. Having heard learned counsel for parties and having perused the material on record, we note that the order of detention dated 25/11/2016 is passed by the second respondent invoking Section 3(2) of the Act and by holding that the detenu is a 'goonda' under the provisions of the Act. The grounds of detention however refer to other enactments. The corrigendum dated 01/12/2016 refers to a different Act, which is not mentioned in the detention order and provisions which ought to have been invoked for the purpose of detaining the detenu. The translation of the corrigendum dated 01/12/2016 could be extracted as under for immediate reference: "office of The Deputy Commissioner, Mysuru District, Mysuru No. MAG(1)MLO/CR/312/2016-17 Date:01-12-2016 Corrigendum Subject Detention of person Suresh alias Jackie Suresh Ahmed, S/o Late Thammaiah, 46 years, creating fear for public lives at the Periyapattana Police Station limits of Periyapattana Town of Mysuru District under section 3(2) of Karnataka Prevention of Dangerous Activities of Bootleggers Drug offenders, Gamblers, Goondas, (Immoral Traffic offenders, Slum Grabbers and Video or Audio Pirates) Act, 1985. Ref. 1. Report of the Superintendent of Police, Mysuru District NO/DCRB/Misc(1)/153/2016, Dated 23-11-2016. 2. This office letter of No. MAG(1) MLO/CR/312/2016-17, dated 25-11-2016 for detention. 3. Report of the Superintendent of Police, Mysuru District NO/DCRB/Misc(1)/153/2016, Dated 30-11- 2016. Ref. 1. Report of the Superintendent of Police, Mysuru District NO/DCRB/Misc(1)/153/2016, Dated 23-11-2016. 2. This office letter of No. MAG(1) MLO/CR/312/2016-17, dated 25-11-2016 for detention. 3. Report of the Superintendent of Police, Mysuru District NO/DCRB/Misc(1)/153/2016, Dated 30-11- 2016. ***** As per this amendment order, the following changes be noted- 'He has Committed an offence Under Section 2, clause (f), Chapter VII of The Karnataka Police Act, 1963 instead of Under Section 2, clause (g) of Karnataka Prevention of Dangerous Activities of Bootleggers, Drug offenders, Gamblers, Goondas, (Immoral Traffic offenders, Slum Grabbers and Video or Audio Pirates) Act, 1985'. 'The word 'Gambler' is substituted wherever the word 'Goonda' is mentioned in the order.' Corrigendum is hereby issued by the word 'goonda' only. All remaining contents of the order remain as mentioned in the previous order having reasons for the detention. Deputy Commissioner And District Magistrate Mysuru District" A reading of the same would reveal that the detaining authority had in mind the provisions of the Karnataka Police Act, 1963 on the premise that the detenu is a 'gambler' but he has invoked the provisions of the Act on the premise that the detenu is a 'goonda'. Deputy Commissioner And District Magistrate Mysuru District" A reading of the same would reveal that the detaining authority had in mind the provisions of the Karnataka Police Act, 1963 on the premise that the detenu is a 'gambler' but he has invoked the provisions of the Act on the premise that the detenu is a 'goonda'. The two expressions are totally distinct, as can be observed by reading of the said definitions under the Act, which are extracted as under: "Section 2(f) 'gambler' means a person, who commits or abets the commission of any offence punishable under Chapter VII of the Karnataka Police Act, 1963 (Karnataka Act 4 of 1964) including an offence of gambling relatable to 'matka' and punishable under the said Chapter;" "Section 2(g) 'goonda' means a person who either by himself or as a member of or leader of a gang, habitually commits or attempts to commit or abets the commission of offences punishable [under Chapter VIII, Chapter XV, Chapter XVI] Chapter XVII or Chapter XXII of the Indian Penal Code (Central Act XLV of 1860);" The expression 'gaming' as defined in Section 2(7) of the Karnataka Police Act, 1963 reads as under: "Section 2(7) 'Gaming' does not include a lottery but includes all forms of wagering or betting in connection with any game of chance, except wagering or betting on a horse race, run on any race course within or outside the State when such wagering or betting takes place." (i) on the day on which such race is run; and (ii) in an enclosure set apart for the purpose in a race course by the licensee of such race course under the terms of the licence issued under Section 4 of the Karnataka Race Courses Licensing Act, 1952 (Karnataka Act VIII of 1952); and (iii) between any person being present in such enclosure, on the one hand and such licensee or other person licensed by such licensee in terms of the aforesaid licence on the other in such manner and by such contrivance as may be permitted by such licence. Explanation.- In this Clause. Explanation.- In this Clause. - (i) 'Wagering or Betting', includes the collection or soliciting of bets, the receipt or distribution of winnings or prizes, in money or otherwise, in respect of any act which is intended to aid or facilitate wagering or such collection, soliciting, receipt or distribution; (ii) 'Game of Chance' includes a game of chance and skill combined and a pretended game of chance or of chance and skill combined, but does not include any athletic game or sport;' 8. On a reading of the above, we find that the detaining authority passed the order of detention by arriving at a subjective satisfaction on the basis of the Act and on the premise that the detenu is a 'goonda' whereas, the detaining authority intended to invoke 'Section 2(f) of the Act read with Chapter VIII of the Karnataka Police Act, 1962' (should read as 1963) on the premise that the detenu is a 'gambler'. The original order of detention and the corrigendum would make it apparent that the subjective satisfaction arrived at by the detaining authority is vitiated on account of there being a mix-up in the invocation of the provisions in respect of the aforesaid two expressions, although Karnataka Police Act, 1963 is referred to under the Act. Also, under the latter Act, the definition of 'gaming' does not include lottery. Whereas, the enactment concerning lotteries is referred to in the grounds of detention. Therefore, in our view, the order of detention is vitiated on that short ground alone, as the detaining authority has not been clear in his mind as to whether the detenu is a 'gambler' or a 'goonda', while arriving at a subjective satisfaction while passing the impugned order of detention. Moreover, Chapter VII of the Karnataka Police Act, 1963 (and not 1962), as stated in the corrigendum, deals with prevention of gaming. 9. In W.P. (H.C.) No.80/2014 [Prema v. State of Karnataka and others], a Division Bench of this court held that when the words 'goonda' and 'gambler' have been defined under the Act and there is an interchange in the use of the said words in the order of detention, it is a clear case of non-application of mind. On that basis, this court quashed the order of detention and the detenu was ordered to be released forthwith, if he was not required in any other case. 10. On that basis, this court quashed the order of detention and the detenu was ordered to be released forthwith, if he was not required in any other case. 10. We can also rely upon a judgment of the Bombay High Court in the case of Sukerti Virendra Sood v. State of Maharashtra [1996 (3) Crime 75]. In that case, the Bombay High Court observed that there was a grave infirmity in the order of detention which required the corrigendum being issued. In that case, the detaining authority had ignored the difference between psychotropic substance and narcotic drugs when the Act separately defines the same and hence, held that the original order of detention was casual and careless. 11. Hence, we find that the aforesaid cases also apply to the present case. In the circumstances, we quash the order of detention dated 25/11/2016, the ground of detention, the corrigendum and all steps taken and orders passed subsequent to the impugned order of detention. We direct that the detenu be released forthwith. We are informed that the detenue is presently at Bellary prison. The Registry is directed to communicate this order to the said prison authorities so as to release him forthwith, if not required in any other case. 12. Writ petition is allowed in the aforesaid terms. 13. This order would not come in the way of the respondents issuing a fresh order of detention in accordance with law.