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2023 DIGILAW 1067 (KAR)

Syed Abdul Madani v. State of Karnataka

2023-09-07

K.SOMASHEKAR, UMESH M.ADIGA

body2023
JUDGMENT UMESH M ADIGA, J. Brother of detenue by name Saifuddin @ Saifu S/o Abdul Khader resident of Athrady village, Udupi Taluk, Udupi District has filed this writ petition under Sec. 226 of Constitution of India seeking following reliefs: a. A writ in the nature of Habeas corpus by quashing of the order of detention dtd. 11/4/2022 passed by respondent No.2 in No.MAG(2)CR/168/2023 E-111120, which is produced at Annexure A and Annexure - A1 in the interest of justice. b. A writ in the nature of Habeas Corpus by quashing the approval order dtd. 19/4/2023 passed by the respondent No.1 in H.D.208 SST 2023, Bengaluru which is produced at Annexure - C in the interest of justice. c. A writ in the nature of Habeas Corpus by quashing the confirmation order dtd. 24/5/2023 passed by the respondent No.1 in H.D. 208 SST 2023, Bengaluru which is produced at Annexure - E in the interest of justice. d. A writ in the nature of Habeas Corpus directing the respondents to set at the detenue Saifuddin @ Saifu at liberty by releasing him from prison forthwith, in the interest of justice. e. Any other order or direction may be issued as consequential orders, in the interest of justice. 2. Various grounds are urged in the writ petition seeking the said reliefs. 3. We have heard the arguments of learned senior counsel Sri. Kiran S.Javali on behalf of petitioner and learned HCGP. 4. The learned Senior Counsel has submitted that the order of detention was passed by the Deputy Commissioner and District Magistrate, Udupi District in Order No.MAG (2) CR/168/2023, E 111120 dtd. 11/4/2023 as per Annexure - A. On that basis issued detention order on the same day as per Annexure - B. The Annexure - A1 was submitted to the State Government by the District Magistrate for confirmation in accordance with the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goodas, Immortal Traffic Offenders, Slum Grabbers and video or Audio pirates Act, 1985 (hereinafter for short referred as 'Act'). The State Government had passed the orders as per Sec. 3(1) of the Act as per Annexure - C dtd. 19/4/2023, confirming detention order passed by District Magistrate 5. The State Government had passed the orders as per Sec. 3(1) of the Act as per Annexure - C dtd. 19/4/2023, confirming detention order passed by District Magistrate 5. The learned Senior Counsel further submits that in Annexure - A, which is ordered by District Magistrate under Sec. 3(2) of the Act, he had to intimate "the detenue that the detenue has right of giving representation to the District Magistrate, who passed detention order for reviewing the order of detention, before the order passed by him is approved by the State Government. However, in Annexure - A, the District Magistrate has referred that the detenue can file a representation to the State Government or Advisory Board through Superintendent of Central Prison, Belagavi." Therefore, the learned District Magistrate has not complied with the mandatory requirement of the Act to inform the detenue about his right to give the representation to him for reviewing the order of detention. 6. He has further submitted that in the case of State of Maharashtra and others Vs. Santosh Shankar Acharya, (2000) 7 SCC 463 . wherein it is held that if the detaining authority, who passed detention order under Sec. 3(2) of the Act, failed to inform the detenue about his right to make a representation to him, until detention order passed by him is approved by State Government within 12 days and non- communication there of would vitiate the detention order. The law laid down in the said judgment by the Hon'ble Apex court is applicable to the facts in the present case. Hence, prayed to quash the order of detention passed at Annexure - A, C and E. 7. The learned HCGP vehemently contended that the District Magistrate while passing the orders as per Annexure - A has followed all the requirement of the law. It is mentioned in the said order that a detenue can submit his representation to the State Government or Advisory Board through Superintendent of Police, Central Prison, Belagavi. It was informed to the detenue that he had right of giving representation to re-consider his detention order, which is sufficient compliance of the provisions of the Act and on that ground the detention order cannot be quashed. 8. The learned HCGP further submits that, the aforesaid ground is not taken in the writ petition and such contention is taken surprisingly during the argument. 8. The learned HCGP further submits that, the aforesaid ground is not taken in the writ petition and such contention is taken surprisingly during the argument. Therefore, the said submission cannot be considered and prays to dismiss the writ petition. 9. Per contra, the learned Senior Counsel submits that the State Government has wrongfully detained the detenue without following the procedures of law. It is for the competent authority to justify its action and prove before the Court that it had taken all the necessary action in accordance with law, to protect the interest of residents of this Country under Article 22 of the Constitution of India. Merely, no such ground is taken in the petition does not affect rights of the detenue; It is sufficient for the detenue to show that mandatory provisions of law are not followed. In support of his submission, he relied on the judgment rendered by Apex Court in the case of SMT. ICCHU DEVI CHORARIA VS. UNION OF INDIA AND OTHERS, AIR 1980 SC 1983 . and submitted that there is no need to follow strict rules of pleadings in the writ of Habeas corpus. Therefore, the said reason do not answer to the grounds, urged by the detenue and prayed to allow the writ petition. 10. We anxiously gone through the records and considered the submission of learned counsel appearing for both the sides. 11. Brief facts of the case are that, the detenue by name Saiffudin @ Saif S/o Abdul Khader resident of Athrady Village, Udupi District is said to be an habitual offender and involved in several criminal offences like murder, attempt to murder, extortion, assault, attacking the people with dangerous weapon etc., since 1995. Four criminal cases have been registered against him in the police station of Hiriyadka, Piriyadka, Manipal, Kundapura and Udupi town for various offences mentioned above. In Cr.No.71/2022 of Manipal Police Station, he was acquitted since material witnesses have turned hostile to the case of the prosecution. Similarly, in Cr.No.38/2022 of Kundapur Police Station, the matter was compromised with the victim. The said acquittal and compromise were due to threat of detenue. Witnesses were scared to give true evidence before the Court. Considering his antecedents and criminal background, his name is registered in Rowdy - B registrar of Hiriyadka Police Station. Similarly, in Cr.No.38/2022 of Kundapur Police Station, the matter was compromised with the victim. The said acquittal and compromise were due to threat of detenue. Witnesses were scared to give true evidence before the Court. Considering his antecedents and criminal background, his name is registered in Rowdy - B registrar of Hiriyadka Police Station. Considering these facts and the information received by the concerned, the District Magistrate, Udupi came to conclusion that the detenue is menace to the society. To prevent the illegal acts of the detenue and also to protect the interest of the society at large, the District Magistrate decided to detain the detenue under Sec. 3 of the Act. Accordingly, acting under Sec. 3 (2) of the Act, the learned District Magistrate, Udupi issued impugned order dtd. 11/4/2023 bearing No. MAG(2) (CR)/168/2023/E111120 as per Annexure - A. 12. In terms of Annexure - A, the learned District Magistrate, issued detention order of even number dtd. 11/4/2023 as per Annexure - B. 13. It appears that the learned District Magistrate submitted the orders passed by him as per Annexure - A and B, to the State Government; The State Government after considering the orders of Advisory Board and materials placed with the report, passed impugned orders under Sec. 3(1) of the Act, bearing No.HD208SST2023, Bengaluru 19/4/2023, ordering to detain the detenue for a period of one year (Preventive Detention) and approved the orders made by learned District Magistrate as per Annexure - A. The same are challenged by the Detenue. 14. Though several grounds are urged in the writ petition but the learned Senior counsel during the course of the argument, restricted the contention in respect of intimation to the detenue about his right to submit representation to the District Magistrate to review orreconsider his detention order before it is approved by the State Government as referred supra. 15. To consider the submission of the learned counsel appearing for both the sides, it is necessary to read the relevant provisions of Act. Sec. 3 of the Act, reads as under: 3. 15. To consider the submission of the learned counsel appearing for both the sides, it is necessary to read the relevant provisions of Act. Sec. 3 of the Act, reads as under: 3. Power to make orders detaining certain persons:- (1) The State Government may, if satisfied with respect to any bootlegger or drug-offender or gambler or goonda or(Immoral Traffic Offender or Slum-Grabber or Video or Audio Pirate) that with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such persons be detained. (2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub- Sec. (1), exercise the powers conferred by the sub-sec. : Provided that the period specified in the order made by the State Government under this sub-sec. shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time. (3) When any order is made under this Sec. by an officer mentioned in sub-sec. (2), he shall, forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government. Sec. 8 : Grounds of order of detention to be disclosed to persons affected by the order: (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been mae and shall afford him the earliest opportunity of making a representation against the order to the State Government. (2) Nothing in sub-sec. (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose. Sec. 14: Revocation of detention orders: - (1) Without prejudice to the provisions of Sec. 21 of the Karnataka General Clauses Act, 1899, a detention order may, at any time, be revoked or modified by the State Government, notwithstanding that the order has been made by an officer mentioned in sub-sec. (2) of Sec. 3. (2) The revocation or expiry of a detention order (hereinafter in this sub-sec. referred to as the earlier detention order) shall not, whether such earlier detention order has been made before or after the commencement of the Karnataka Prevention of Dangerous Activities of Boot-leggers, Drug-offenders, Goondas, Immoral traffic offenders and slum-grabbers(Amendment) Act, 1987, bar the making of another detention order (hereinafter in this sub-sec. referred to as the subsequent detention order) under Sec. 3 against the same person: Provided that in a case where no fresh facts have arisen after the revocation or expiry of the earlier detention order made against such person, the maximum period for which such person may be detained in pursuance of the subsequent detention order shall in no case, extend beyond the expiry of a period of twelve months, from the date of detention under the earlier detention order. 16. It is also necessary to refer Article 22 of Indian Constitution, which reads as under: 22. Protection against arrest and detention in certain cases- (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. (2) ..... (3)....... (4)........ Protection against arrest and detention in certain cases- (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. (2) ..... (3)....... (4)........ (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. 17. On going through the above said provisions, it is clear that as per Sec. 8 of the Act, it is mandatory duty of the District Magistrate, if he passes orders under Sec. 3(2) of the Act, to serve the copy of the detention order passed by him to the detenue and also inform him of his right to make representation to him to revise/reconsider his order of detention before it is approved by the State Government. Once the State Government approves as provided under Sec. 9 of the Act and passes order under Sec. 3(1), then the representation shall be given to the Advisory Board or State Government as the case may be. Admittedly, in this case, the District Magistrate has not followed mandatory provision of intimating the detenue of his right to give the representation to him before detention order passed by him was approved by the State Government. Learned District Magistrate had passed the orders on 11/4/2023 and after following the procedures, the State Government had passed/approved the order of the learned District Magistrate on 19/4/2023. Till passing of the orders of approval by the State Government at Annexure - C, learned District Magistrate had jurisdiction to receive the representation and re-consider his detention order. Therefore, valuable right given to the detenue under Article 22(5) of the Indian Constitution has been violated by the learned District Magistrate and it vitiates the detention order. 18. In the case of Santhosh Acharya (referred supra), the Hon'ble Apex Court held as under: The District Magistrate or Commissioner of Police on being authorised by the State Government could issue an order of detention under Sub- Sec. (2) of Sec. .3. 18. In the case of Santhosh Acharya (referred supra), the Hon'ble Apex Court held as under: The District Magistrate or Commissioner of Police on being authorised by the State Government could issue an order of detention under Sub- Sec. (2) of Sec. .3. When an officer exercises power and issues orders of detention under sub- Sec. (2) then he is duty-bound to report forthwith the facts of detention and the grounds on which the order of detention is made and/or other particulars to the State Government. On receipt of the report, the grounds and the particulars from the officer concerned the State Government is required to approve the order of detention within 12 days, and if it is not approved within 12 days then it automatically lapses. Sec. 8(1) casts mandatory obligation both on the authority which passes an order of detention either under sub-sec. (1) or under sub-sec. (2) i.e., if the State Government issues an order of detention under sub-sec. (1), or if the officer empowered issues an order of detention under sub-sec. (2) that the same must be communicated to the detenu not later than 5 days from the date of detention. Although in the latter part of sub-sec. (1) of Sec. 8 it has been categorically mentioned that an earliest opportunity of making a representation against the order to the State Government should be afforded, but that does not make the State Government the detaining authority as soon as the factum of detention is communicated by the person concerned exercising power under sub-sec. (2) as provided under sub-sec. (3) thereof nor does it take away the power of entertaining a representation from a detenu so long as the order of detention has not been approved by the State Government. In a case where an officer other than the State Government issues an order of detention under sub-sec. (2) of Sec. 3 his powers as the detaining authority to deal with the representation under the provisions of Sec. 21 of the Bombay General Clauses Act, 1904, cannot be said to be taken away merely because Sec. 8(1) specifically provides for making a representation to the State Government. Such failure would make the order of detention invalid. (2) of Sec. 3 his powers as the detaining authority to deal with the representation under the provisions of Sec. 21 of the Bombay General Clauses Act, 1904, cannot be said to be taken away merely because Sec. 8(1) specifically provides for making a representation to the State Government. Such failure would make the order of detention invalid. As such the ratio of the constitution Bench decision of this Court in Kamleshkumar case would apply notwithstanding that in Kamleshkumar case the Court was dealing with an order of detention issued under the provisions of the COFEPOSA Act. 19. The facts in the above said case are similar to the facts in the present case. However, detention order was issued in the above said case was under Maharastra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981, which appears to be in paramateria with the Act. therefore, the law laid down in the above said judgment is aptly applicable to facts of the present case. 20. There is no convincing arguments by learned HCGP in respect of failure to mention the mandatory information in the detention order by learned District Magistrate. therefore, the impugned detention order passed by the detaining authority as per Annexure - A, C and E are invalid. 21. The submission of learned HCGP that no such grounds are taken in the writ petition is suitably answered in the case of Smt. Icchu Devi Choraria (referred supra) by the Hon'ble Supreme Court, wherein it is held that: (we quote) In case of an application for a writ of habeas corpus, the practice evolved by Supreme Court is not to follow strict rules of pleading nor place undue emphasis on the question as to on whom the burden of proof lies. Even a postcard written by a detenu from jail has been sufficient to activise the Court into examining the legality of detention. The Supreme Court has consistently shown great anxiety for personal liberty and refused to throw out a petition merely on the ground that it does not disclose a prima facie case invalidating the order of detention. Whenever a petition for a writ of habeas corpus has come up before the Supreme Court it has almost invariably issued a rule calling upon the detaining authority to justify the detention. Whenever a petition for a writ of habeas corpus has come up before the Supreme Court it has almost invariably issued a rule calling upon the detaining authority to justify the detention. Once the rule is issued it is the bounden duty of the Court to satisfy itself that all the safeguards by the law have been scrupulously observed and the citizen is not deprived of his personal liberty otherwise than in accordance with law. Where large masses of people are poor, illiterate and ignorant and access to the courts is not easy on account of lack of financial resources, it would be most unreasonable to insist that the petitioner should set out clearly and specifically the grounds on which he challenges the order of detention and make out a prima facie case in support of those grounds before a rule is issued or to hold that the detaining authority should not be able to do anything more than just meet the specific grounds of challenge put forward by the petitioner in the petition. The burden of showing that the detention is in accordance with the procedure established by law has always been placed by the Court on the detaining authority because Article 21 of the Constitution provides in clear and explicit terms that no one shall be deprived of his life or personal liberty except in accordance with procedure established by law. 22. The detaining authority that is learned District Magistrate, Udupi, did not strictly follow the procedures prescribed under Sec. 8 of the Act, while issuing detention order under Sec. 3(2) of the Act, for the reasons narrated above. Hence, the said detention order and correspondingly approval order passed by State Government, are not in accordance with law and needs to be quashed. 23. Accordingly, we pass the following: ORDER i. The writ petition is allowed. ii. The order of detention dtd. 11/4/2022 passed by respondent No.2 in No.MAG(2)CR/168/2023 E-111120, produced at Annexure -A and Annexure - A1, the approval order dtd. 19/4/2023 passed by respondent No1 in H.D. 208 SST 2023, Bengaluru, produced at Annexure - C and the confirmation order dtd. 24/5/2023 passed by respondent No.1 in H.D.208 SST 2023, produced at Annexure - E are hereby quashed. iii. The petitioner is ordered to be set at liberty forthwith.