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2022 DIGILAW 248 (KAR)

Sagaya Mary v. Deputy Commissioner Of Police

2022-02-22

ALOK ARADHE, M.G.S.KAMAL

body2022
JUDGMENT M.G.S. Kamal, J. - Present petition is filed by the mother of the detenue seeking issue of a writ in the nature of habeas corpus or any other writ or direction declaring the detention of detenue, namely, Raju @ Raju Dorai, S/o.alexander, by the order No.3CRM(4)DTN/20-21 dated 09.03.2021 at annexure-a passed by Respondent No.1 and approved by Respondents 2 and 3 by Order No.HD/36/SST/2021 dated 18.03.2021 and 08.04.2021 at annexures-C and D as illegal and to set the detenue at liberty. 2. The case of the petitioners is that her son the detenue is in judicial custody since 16.02.2021 pursuant to a Case registered in Crime No.22/2021 of Biappanahalli Police and has been lodged in Central Jail, Bangalore. That Indira Nagar Police has got issued a body warrant against the detenue in Criminal Case No.13/2021 registered on 24.01.2021. 3. That when the detenue is already in judicial custody since 16.02.2021, the present order of detention at annexure-a has been passed by the Respondent No.1 under Section 2(g) of the Karnataka Prevention of Dangerous activities of Boot Leggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video or audio Pirates act, 1985 (Karnataka act No.12 of 1985). 4. That the Respondents 2 and 3 have confirmed the order of detention by order dated 08.03.2021 and 08.04.2021 as per annexures - C and D. That the said orders passed by Respondent No.1 confirmed by Respondents 2 and 3 are illegal and contrary to the provisions of law. 5. Learned senior counsel Sri.Kiran Javali representing the counsel for the petitioner submitted that the orders impugned are erroneous and patently illegal as evident from order dated 09.03.2021 at annexure-a. Drawing attention of this Court, the address shown in the said order wherein detenue is shown as "presently in Central Prison under UTP 1897/21, he submits that when admittedly the detenue is already under detention, there is no reason for the authorities to pass the impugned order. He further submitted that the detenue is in judicial custody in the alleged case of murder since 17.10.2014 and he has not moved any application for bail. Further, an application for bail filed by the detenue in respect of a case in Crime No.13/2021 registered by the Indira Nagar Police. Nothing is forthcoming where the bail has been granted or denied. Further, an application for bail filed by the detenue in respect of a case in Crime No.13/2021 registered by the Indira Nagar Police. Nothing is forthcoming where the bail has been granted or denied. That further the petitioner had approached for grant of bail on 04.03.2021 in Crl.Misc.No.25330/2020 which came to be dismissed on 12.03.2021 while the detention order is passed much earlier, i.e., on 09.03.2021. 6. Referring to aforesaid events, learned senior counsel submits that the detaining authority have not given adequate material or grounds regarding their subjective satisfaction while passing the impugned order. He further submits that when the detenue was already in detention, the detaining authority have not stated whether the detenue is likely to be released on bail and also not mentioned as to why there was a need for further order of detention when he was already in jail. Thus, he submits that there is a complete absence of recording satisfaction to this effect in the order of detention. 7. Learned senior counsel refers to the Judgment of the apex Court in the case of N.MEERa RaNI VS. GOVT.OF TaMIL NaDU aND aNOTHER ( aIR 1989 SC 2027 ), wherein at Paragraph 22, the apex Court has held as under: "22. We may summarise and reiterate the settled principle. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case, preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc., ordinarily it is not needed when the detenu is already in custody; the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order; but, even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release. This appears to us to be the correct legal position. 8. This appears to us to be the correct legal position. 8. Thus, he submits that the respondents have not provided any reasons for passing the detention order and the same is contrary to the law laid down by the apex Court. 9. Learned High Court Govt. Pleader vehemently opposing the petition, submits that there is sufficient material and the reasons in this regard assigned in the order that in the event of release of the detenue, he would cause threat to maintenance of public disorder. That it is only on subjective satisfaction by the respondents taking into consideration of all the cases filed/pending consideration against the detenue as found in annexures-B and C, the impugned order has been passed warranting no interference. Hence, seeks for dismissal of the writ petition. 10. Heard the learned counsel for the parties and perused the records. 11. It is not in dispute that the detenue has been in judicial custody since 16.02.2021. That the application for bail which was filed by the detenue before the 28th addl. City Civil and Sessions Judge, Mayohall in Crl.Misc.No.22330/2021 in respect of Case in Crime No.20/21 has been dismissed. The detention order does not speak anything whatsoever with regard to the likelihood of his release in the above case or any other cases in which he was detained. The apex Court in the case of N.MEERa RaNI supra has held preventive detention is ordinarily not needed when the detenue is already in custody and even if the detaining authority intending to pass an order is required to reasonably satisfy on the cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging in such prejudicial activities. In the impugned order, no material or reasoning has been assigned in compliance with the requirement of law laid down by the apex Court. Hence, the order of detention cannot be sustained. 12. For the aforesaid reasons, petition is allowed. annexure-a is quashed. Petitioner shall be set at liberty forthwith, if he not required in any other case.