C. Vanathai vs Government Of Karnataka And Ors. on 3 April, 2006

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Karnataka High Court
C. Vanathai vs Government Of Karnataka And Ors. on 3 April, 2006
Equivalent citations: 2006 CriLJ 3166
Author: N Kumar
Bench: P V Shetty, N Kumar


ORDER

N. Kumar, J.

1. The petitioner has preferred this writ petition seeking declaration of the detention of his brother one Sri Thomas, as illegal and void 06 initio and for a direction to produce the detenu and for his release.

2. The facts leading to this petition are as under:

Sri Thomas has been detained in pursuance of the order passed by the Deputy Commissioner and District Magistrate, Bellary under Sub-section (2) of Section 3 of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1985 (for short, hereinafter referred to as ‘the Goonda Act”). The grounds of detention enclosed to the detention order disclose that the said detenu was involved in as many as 23 cases which are registered against him in the T.B. Dam Police Station under various provisions of Indian Penal Code, On perusal of the aforesaid legal proceedings, the Deputy Commissioner was of the opinion that the offences committed by him have caused danger harm and a feeling of insecurity among the general public and the public order has been adversely affected and that he is in the habit of committing offences with unflinching regularity and that he is not amendable to the ordinary laws and has been acting in a manner prejudicial to the maintenance of public order and therefore, has passed the detention order in public interest. The order of detention is dated 25th July, 2005. As required under law, he has reported the said fact to the State Government together with the grounds on which the order has been made. The Government, on going through the said report, has in turn approved the order of detention within twelve days from the date of the order. On this aspect there is no dispute. Thereafter, the grounds of detention have been duly served on the detenu and the matter was referred to the Advisory Board within the stipulated period. Even before the Advisory Board, the detenu has been heard and thereafter the Advisory Board has submitted its report holding that there is sufficient cause for the detention of the detenu. Acting on the said report of the Advisory Board, the Government being satisfied that there is sufficient cause for the detention of the person, has confirmed the order of detention. It is this order, which is challenged in this writ petition.

3. The learned Advocate for the petitioner raised three contentions challenging the impugned order. Firstly, it was contended that unless the order of detention passed by the Deputy Commissioner is confirmed by the Government, the Deputy Commissioner has no jurisdiction to take the detenu into custody and detain him. Secondly, it was contended that the detaining authority has not looked into the legal proceedings where has been acquitted and therefore, the detention order is bad for non-application of mind. Finally, it was contended that the Government, without proper application of mind blindly acting on the report of the Advisory Board has confirmed the order of detention, which is illegal.

4. We do not find any substance in any of these contention. The only requirement of Section 3(2) of the Act is, if the Deputy Commissioner is satisfied that it is necessary to detain a person under the Act, he may do so by order in writing, if he is satisfied that his act is in any manner prejudicial to the maintenance of public order. Immediately after the detention order, it has to be served on the detenu and he could be taken to custody. The said order is to be approved by the State Government within twelve days from the date of the detention order on the report being submitted by the detaining authority. If the said order of detention is not approved by the Government it ceases to be in force after twelve days. Sub-section (3) of Section do not provide that only after approval of the order of detention the detenu has to be detained. Therefore, it follows that after passing of the order of detention, the detenu could be taken to custody and detained. If such order of detention is not approved by the State Government within 12 days of the order, the detenu has to be set at liberty forthwith. In the instant case, a valid detention order has been passed by the detaining authority, it was duly served on the detenu, he was taken to custody and thereafter a report was submitted to the State Government as required under law and the State Government has approved the said detention order, within twelve days from the order of detention. Therefore, all the legal requirements are complied with. Therefore, we do not find any merit in the contention to the effect that the detaining authority cannot take the detenu into custody till it is approved by the Government.

5. A perusal of the order of detention and the grounds for detention enclosed to the said order clearly sets out that 23 cases are registered against the detenu for various offences he has committed under the provisions of the Indian Penal Code and also the fact that in how many cases he has been acquitted, in how many cases the offences have been compounded and how many cases still are pending consideration. On perusal of the entire material, the detaining authority was satisfied that the detenu has been committing offences with unflinching regularity and his action is prejudicial to the maintenance of public order and therefore he should be detained. Therefore, the second contention that there is no application of mind by the detaining authority is devoid of any merit.

6. Insofar as the last contention that the Government without proper application of mind, blindly acting on the report of the Advisory Board has confirmed the order of detention is concerned, it also lacks merit. As is clear from Section 11(4) of the Act, the proceedings of the Advisory Board and its report excepting that portion of the report, in which the opinion of the Advisory Board is specified, shall be confidential. If the said report states, that in its opinion sufficient cause for detention of the person has been made out, the State Government may confirm the detention order and to continue the detention of the person concerned for such period not exceeding the maximum period specified in Section 13, as they think fit. Since the report is required to be confidential, the Government is not expected to set out the contents of the report in the final order to be passed, to justify their order. Therefore, the action of the State Government is strictly in accordance with Section 12 of the Act.

7. Therefore, we do not find any substance in any of the contentions. Accordingly this writ petition is rejected. However, no order is made as to costs.

8. Sri S. Dore Raju, learned State Public Prosecutor is given four weeks’ time to file his memo of appearance.

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