£3»
WT3(HC) N0. 58 /2009
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 2nd DAY OF NOVEMBER 2009
PRESENT
THE HON'BLE MR. JUSTICE V. GOPALA Gowfip, "'
AND
THE I-ION'BLE Dr. JUSTICE 1:. 2 "
wnrr PETITION'(H.C}'--I§6.58/§:}{}9u. if
BETWEEN:
Muneer Sharieff.
S / o.Jamaiuddin Sharieff,
Aged 48 years,
29, Sm Main, ' 4
Pillanna Garden, _ 44 ,_
11 Stage, Opp.KEB C)ff1'r.;:é;_
. . .PETITIONER
(By Sr:i.Kiran S.};e;va1:; Aemfj;
AND:
1. ,COmm1SS_i0n;3.; of'. Police; """ " 'V
Bangalqre city,' .4
Bar3.ga'10re,_ % "
By S1'i5ShSnkaf_~VI:S'_i(*;§iri.;
V Smte of Kam__atalێ1.
S _I.3y" Secretary, }_
_, , .. _and Transport Dept.
"'«Vi(}~K1ana Soudha,
Bang.'a_lOre~'560 001.
Ln)
WP(HC) No.58/2009
That the petitioner is brother of the detenu and he is
concerned with personal Iiberty of the detenu. The detentrihas
been detained in Central Jail, Bangalore' in pursuance_;of
of detention passed by the 15% Respondent under Section» L§1e7 0
Karnataka Prevention of Dangerous Acgtivitiesg of Boot–‘E-.eggeV1;As,i’
Drug Offenders, Garnbiers. Goondas, Irnrnoral. Traffic
and 8111111 Grabbers Act’ 1985 (hereinafter referred ‘the
Goondas Act’).
The grounds of .detention…\}vas*- “to the detenu.
Respondent No.1 ‘__’£t1e:”detenti_onj oréler””dated 26.02.2009
(Annexure .of«d_’etention at Annexure ‘B’ and also
forwarded the pp detention_jf_0ordei*. to the State Government
(Respondent. No.2)fl’fo1_’d approAV’a1r”:The Respondent No.2. within the
specified of 1200 ‘days’ of detention order’ approved the
detentioii dated 04.03.2009 (Annexure ‘{3′) and also
V0 referred n1a_?ter’:–j_.o:; the Advisory Board.
0:’ petitioner has urged that the detention
‘ ”order/deonfi:rination of detention order made against the detenu are
‘ii1e’ga1_pvarid void on the following ounds:
WP(HC) No.58/2009
(a) that the order of detention made by Respondent No.l is
erroneous and illegal;
(b) that the approval of the detention
Respondent No.2 is also bad in law;
(C) that the impugned order at Arinexures “‘A”:
been passed without applieationléof mind Aeon’trary-~
law;
[(3) that there is no valid and s_u_l:isis_ting auti’1«o1fi_AsaAti§on order
by the State Gove:nrr;–ent–‘_VAas .A proviso to Sub-
Section {2} of Section 3 in favour of
'power of detention
the Respondent ._1_\Io.
under Sec_ti--:)n of
(e) thatilthere are hold that the provisions of
Goondas are attracted;
(f) tiiat :thepvdetenu.,_.d__oes not know to read or Write either
p’ Qrfiannada and therefore, the order of detention
English / Kannada is bad in law;
_p (g) as there is no proof placed on record to show that the
.. grouna:is of the detention order was read over and
x explained by the Respondent No.3 [Senior
Superintendent, (Eentral Prison) by way of compliance of
_ ‘Act:
WP{HC] No.58/2009
the mandatory requirement of law. an adverse inference
may be drawn;
[h] that many of the documents {in all 376 pages} reliedfljpon
while passing the detention order are in _
Kannada translation thereof was not as la~
result of which, the detenu’s right’ ‘to’make represenVtation’–a
is affected and thus infringed the de’te.1’1u’s._fundarnenta1]i
right under Article 22(5) of the4__Consti_.tu’t.i0n of
[i] that the Respondent No.2 W_hile:_appro§irigl’ _order of
detention made by i§espon_dentv”No.,.l’;’–specifically relied
upon 22 incidents, but ‘d_oc’urI-ielnts Serial Nos.6
and 22 of thegrounds” Voffdetenti.Q.r1vrelating to D.J.Ha1li
Police statipifii i\f.:;.”1’4;i’k’:2o0’2’a:id K.G.Halli Police
Statio’nl’in’Afojifimefifiioi301’/2O(§}S’fWere not furnished to the
detenu: ‘– S V if if h S
0} that the'”irnpugned7,detention order has been passed
contrary to subsection [1] of Section 3 of the Goondas
{R}. order reveals that the detenu is being
detained _forAanti–social, public peace and order though
theynot fall within the scope of Section 3(1) of the
V’ ‘Go-ondas Act;
L
WP(HC) No. 58/2009
{E} that the order of detention furnished in English conflicts
the grounds of detention mentioned in the Kannada
version;
(In) that under Section 10 of the G0ondas«~~-Ae»t,_’__t’the
Respondent No.2 was required to refer M
detention of the detenu to the _Actvi_s0ry” Kt
Respondent No.2 has faiied to state iwhénit–th:e_ni–at’te’r__WaSt
referred to the Advisory Board andvvhat steps vvere takenh
and what records were forwarded;
(n) that the Advisory Bo’ar_d ditt”not’:eo’f1s_ider the request of
the detenu to take assistanC€_p(i’f:&1 when the detenu
was heard on 25.03.20-09; ‘ ‘ ” ” ‘
4. The petitiorief1f_.,has. :u1’ged..’_the foliowing additional grounds:
(1) thativthei detain’ing:_’authority faited to specificatty bring
3+0 theéttéiiotiee..’–ofA’thVe”..detenu that he has the right to
_ t__a re”pre.seritation to the detaining authority
A 2 period of 12 days from the date of
it hdetentvion-,/untii the approval of the detention order by
t ‘ ,__’vthe_ Government of Karnataka;
p the detenu’s representation made to Respondent
Vd*_No.1 should have been forwarded to the State
‘ Government for consideration;
L
wpmc) No.58/2009
(iii) that the Respondent No.1 erred in considering the
detenu’s representation dated 25.03.240.0i9__’i~.Vand
rejecting the same by issuing endorseme_nt__’__i’dated
28.04.2009 though the State Government
the order of detention and_con_firrnedttbyiorde-r’_’dated
04.03.2009:
(iv) that there is more days deiay
the detenu’s representati-on dated ~ .25.03.2009 by
Respondent No.1: who had_ :no..auVth.ority to consider the
same as he became func-tu’s:’Vofiic’io’;
5. The Respo;%:ideiéit;s_V 31: chavejgéflledi’Statement of Objections
praying for dismiie:-_sai_ the as under:
(a) that.Ath’edeteVn{i a group of uneducated youths
of
disturbances infthe area and created differences between
G.,gHalli’ and and has caused communal
_£St1n:r__1gi and Tabiiq..=..Iamat sects of Muslim;
(b) and his gang were attacking innocent
citizensufantd severai cases have been registered against
the ci.eteni1;
; V’ ..(c}’t–hat the detenu is Rowdy Sheeter since 2004;
(53 that all the grounds/additionai grounds urged in the
petition are denied as false.
Ls
6. The learned Counsel for the petitioner the
grounds as pleaded and stated above and also cited’itheir.fo}.1o\i}ingu
decisions:
[ii]
WP(HC) No.58/2009
AIR 1970 so 675 zJAYAi\.fARAYAN’~.sUi{UL°’ys. STATE
OF’ WEST BENf§AJ,] oridlthethat nppropriate
Government must exercise
judgmen:’««[:Vt}1ereon g it to Advisory
rendered in WP (I-IC]
NofiQ9,!2oo3 met; Vs. THE STATE or
i§zaR_NATAI£A_.AND OTHERS] on the point that 28 days
.,gie1ay_d””in disposing the representation was not
‘ and therefore the detention order was set
it asidei
” to “(my
SCC {Cm 4255 {NARINDER SINGH SURE Vs.
UNEON OF’ ENDIA AND OTHERS) on the point that un-
explained delay of 20 days in considering the
L
(iv)
WP(HC} No. 58/2009
representation was held violative of Article 22(5) of the
Constitution of India;
Un~reported decision rendered in W?
86/2004 (sum NOOR MOHJAM>MED_IN1SaR Vsi, .
OF KARNATAKA AND oTHi«:_Rs1-Aon3thc_p¢ini ti;1:atDI’1:;n~
compliance of 1ega}’iV’r_equi1;eI_nent
authority was held bad as
1983 SCC ISHWARLAL
DAVE AND ANDTHER GUJARAT AND
;1;o’.19_1D the “the: State Government,
keefiingfltthe Espres:¢;ntatiion’gv\}ithout being considered
it.:v.at”_ter_ receipt of opinion of Advisory
‘Board was ” law;
-,i98i’ scc.’.”(c;Fi)V’21§71. (KIRIT KUMAR CHAD/IAN LAL
2g{IJNDAL1YA””‘Vé. UNION OF INDIA AND OTHERS} on
V « ~Doi.nt:..that the representation of the detenue must
bettcaongsidered by the detaining authority, but the
” representation was rejected by Secretary was held
bad in law and the continued detention of the detenue
becomes void;
L
(Vii)
(VH1)
18
VVP(HC] No.58/2009
Decision rendered in Criminal Appeal Nos.”/’23 &
724/2009 (THAHIRA HARIS ETC. Vs. GOVERNMENT
01:’ KARNATAKA €32 OTHERS) on the file of:
Court of India, on the point that olauses”t=5)’
Article 22 of the Constitutio_n…of Indiaddsatgegtiardsh theu
detenue and he has the right to”‘beiVsnpi)1ie’d {xi}:-:¢§?1.Qf
the documents. statenieiits and otiier iina’te133ajs~relied-”
upon in the grounds of hhdé-i:€§Ii’ti’OF1 Without delay.
The predominant*–«.oE:jec’t_ ofgjeoniriiuhnieating the grounds
of detention is towanable. Athe”.dete’n¢ue at the earliest
opportuhnit;Qw’ ‘_to_w*ArnaI{e :_4Vefféetiv’e” and meaningful
;fepresent.atioA:I1h’ against his detention;
AIR -1981_°A§$Cg..,,,:”t*cri) 287 (KAMLA KANYALAL
_ _ KHUSEIALAM iz’.s.V”””sTATI«: OF MAHARASHTRA AND
3 AAN”.O’fijiER)’VoVn”‘the point that grounds of detention not
it by documents and materials and 25
dayishdeiay in disposai of detenue’s and continued
‘detention of the detenue was held void;
AIR 2000 so 2504 (STATE OF MAHARASHTRA AND
OTHERS Vs. SANTOSH SHANKAR ACHARYA) on the
L
ll
WP(HC} No. 58/2009
point of nonwcommunication by the detaining authority
to the effect that he has right to make represemtation
to the detaining authority amounts to
right under Artic1et’i22{5) of V the Const1tutilon’l::oi’india= ,
and thereby vitiates the order of_’deteri’tion,l.°- l
7. On the other hand, the; learned ‘Advocate
Ashok Haranahalli, submitted that””there is ndviolatioii clause
{5} of Article 22 of the Constitutionllllof’India’-._and the provisions of
the Goondas Act. He further grounds of
detention along ‘W~*;th._tl’_I1e clAocunf§.ents«”‘h_aV.C. been supplied to the
detenu and the’ ujridlerstoodfl the orders and grounds.
Further, there is no delay.lin~._leoniirming the order of detention by
the State.G0Verrit;:1ent;.Ilieihaslleited the following decisions:
[i}..«.?-C. AER 1990=.S{vZ_’ 176 (MADAN LALANAND Vs. UNION OF
OTHERS} on the point that the order of
A cannot be rendered invalid on the ground of
delay”; when there are no Iaches or negligence on the
§
W ,_
Vv’P{i~iC} No.58/2009
{i} Whether the impugned order of detention approftredtibey
the Government under su’o–Seetion {3} of _
the Goondas Act is valid and legal ‘P
(ii) Whether the detaining
the grounds on wh1Ch»i’the order” of detention
made, as required undeur=.éer:tionV”8. oi”‘t:he.’:'{3:oondas
Act? _ .. .. ,
[iii}’ Whether the State with
Section W A V
{iv} Whether grounds to reiease the
gr’ W§&¥MAt”” ‘L’,
Point NoV,{ii)i;’ the affirmative.
‘*._Point Noiiii): In the affirmative.
“:i:V’_?oini:_.No.[iv}: In the negative.
WP[HC) No.58/2009
10. For the purpose of converiience, We take up all the four
points together for consideration.
11. For the purpose of convenience, it is useful toe_eXc’erWolt V’
Section 3 of the Goondas Act, which readsthus:
“3. Power to Make 0rde1_f:s”~rDetaini;1g.¢e1ftaifi'”
Persons.– {1} The state Cgliii/’f’il’I1Il{1€n’t.’ if
satisfied with respec:t.”t«o any or
offender or gambler or gloorivdaJor__.irrifiioi°a_l traffic
offender or 4SiL1b–grabVber¥ a ‘view to
prevent _1V1:i.IY1 iiiielfifom acting,’ it ‘a’i’iy manner
prej1;diicial’*ito thema.iritenan-c.e._of public order. it
is nece_ssary–“.so_’Vto dot.”-I1__1ake an order directing
that site}: pe:’sons’ be detained.
‘ 2(2)’ if, having regard to the circumstances
likely to prevail in any area Within
__ihe of the jurisdiction of a District
a Commissioner of Police, the State
is satisfied that it is necessary so as
V to it may, by order in writing, direct that
such period as may be specified in the
order, such District Magistrate or Commissioner
of Police may also, if satisfied as provided in sub-
}….i
U1
WP{HC) No. 58/2009
section (i) Exercise the power conferred by the
sub~section.
Provided that the period specified in the
made by the State Government under
section shall not, in the firstainstance. exceed”
three months, but the State C?.ove§:An1ff1enat. may if it
satisfied as aforesaid that_it_ is necessary so 71,9. do’,
amend such order to extendysuch upe2′–i.od_; from”’ ‘
time tot time by any perio_(iflr’ivot’egcceedingithree
months at any one’ti_n’ie.
(3) When any order.:is’»m’ade_unt!evr’tJ;ii’s section
by an officerji. _fn.entio11ged7 inv su:b–vS¢§:§iion (2), he
shall f9r’t2¥s,_mti».—‘:’-_;~.¥:p.¢;;;:1::’ ‘fact; * to the State
Go%.;ern_ment”.t9g’etherl_lvv§th the grounds on which
the ‘order ‘hash’beenlVniade and such other
particularsas h_is7op’in’ion. have a bearing on the
nfiatter andlno. such order shall remain in force for
than. twelve days after the making thereof,
V V meantime, it has been approved by
” . the State Government ”
l2.44″We” carefully examined the order of detention dated
.1 passed by the Comrnissioner of Police, Bangalore, in
his powekinfr subsection (2) of Section 3 of the
16
VVP{HC) No.58/2009
Qandas Act. The Commissioner of Police (respondent. No.1″-hfeprein},
after elaborately referring to the various criminal filedn
against the detenu by three Police .Stat.ions5_”vialflifixG.’_fHa!.1ilhj it
_,c, 1
Devarajeevanahalli and Bharathinagar
Ea’
Commercial Street Police Stationfi .fo’1t.__various offelnces:punishable’ C
“” ok 9 “‘ ‘ — ‘
under 16, 17, 18 and 22 Aof.t_he_ ‘ofthe l”r1d,i_an_Penai Code
issued order of detention under.sLil3€Section.iC’2}of Section 3 of the
Goondas Act. In the-gvl-ound’s””of: details of cases
registered against§–.,the:Tdeteriai are lf’l7iC?::I’:.J[‘i’0VIlCd; at S}. Nos] to 22.
The copy detention and the supporting
documents are fumi’shed;’to ‘de’tenue to facilitate him to submit
his representation to the St’ate'”Covernment as well as the Advosory
“iTIlhei,.Ad.etenu, hisdletter dated 17.3.2009, authorised one
him in the proceedings. On 25.3.2009,
C detenti h_as’r:£}_iade his representation to the respondent No.1»
9
.. _:’_’«.,.Conimissioriei: of Police. The Cominissioner of Police. on perusal of
thejinate’1*iai placed before him, reached the conclusion that the
C. .detent1’s activities have disturbed the activities of public and his
I
%
tithe.
17
WP(HC) No. 58/2009
activities are detrimental to peace and order in many areas of the
City, the detenu was terrorising the people; there is no to
the people in the areas and if the detenu is allowedto
would continue to indulge in crimina1…..cases_”anthcontinue*-toll’
terrorise people, assault and create inseAcurity.’to the’~peopleli’*ofl’the
locality. In nutshell, the Commissioner of Police thee’
conclusion that the detenue will be a_Ti’.’nr_eat to the l_’Svociety and the
ordinary Police have failed to-«.cihecl:l:_ the criminal activities
and therefore it became imperative authority to
resort to the power” red sub–Section (2) of
Section 3 of to 2(g] of the Goondas
Act, “Go0nda”‘ either by himself or as a
member of leader’ of a..gang,Vlhlab1tually commits or attempts to
eonimit alaets»zpthexflcorrirnission of offence punishable under
chap_tergX’-»/fl XVII or chapter XXII of the Indian Penal
=.__,Code {Central of 1860). Annexure–A is the detention order
_ zdated 26.2.20();S3’/f£5.’?ifie§l by the Commissioner of Police, Bangalore.
dated 26.2.2009 contain the grounds of detention.
pursuance of sub-Section (3) of Section 3 of the
I
k._._._,i
18
VVP(HC) No. 58/2009
Goondas Act, the respondent No. .1 has immediateiy sub.rni.tted”–_ the
report to the State Government together with
which the order of detention was madeemagnd other”partioz;3ars..Vas»1
required for approval. The order of dete1i:1’tio1’1. n1ade”‘t1nd”e-r “sL_1’b-
Section (2) of Section 3 of the Goondas Actxtvill i§r1…,.fOijc.e for
period of 12 days from the -order” :v.jdete’ntion. On
28.2.2009, by way of compiiance (3) of Section 3 of
the Goondas Act. grounds to the
Government. dvetenirjdhas submitted his
representation /Commissioner of Police.
Annexure–0 made by the Government
in exercise of powerstinder sub«Section {3} of Section 3
of the Goondas Actrvapproveddthe detention order dated 26.2.2009.
Was “servedhon”the detenu on 7.3.2009 at 8.30 pm.
‘Fher_’efore.’e. delay in passing the order by the State
2 V….’.Governn_1ent with:-.V_’regard to the confirmation of the detention order.
the respondkent No.1/Commissioner of Poiice
isstiiedg arrendorsement to the detenu rejecting his representation
2. and intjmating that as per law, the detenu cannot engage an
WP[HC) No.58/2009
Advocate to appear before the Advisory Board in the meeting fixed
on 26.3.2009 at 2.00 p.111. The State Government. has4vco’r1:i_jp~1ived
with Section 10 of the Goondas Act in referring the
Advisory Board. According to sub–SectionW{5} of _Se’ct,ioii ‘of ”
Goondas Act, a iegal practitioner hasino :_-legal«*:7i§ht”f,o”Vappear
before the Advisory Board. As per’stib–Se’c.tion (4}i.’o’tf
the proceedings of the Advisory Boaérdnbanyd its”-y,éport.vVfexcepting
that part of the report in which«.the.3_VAopin’ien’.oi’«the Advisory Board
is specified, shail be confident1’_a1_.V’t’ A n A A
13. From the is crystal clear that there is
no deiay or ‘V Iaches _:on..the”.par.t of the respondents/authorities.
:,.e_of~. A. thettdvvgrounds of detention order and
confirinatioii detention order by the Government have
:{d=.I::een ft1’rnished.”i:’if1″iere is no vioiation of clause (5) of Article
the ~ Constitution or any of the provision of the
20
WP(HC} No. 58/2009
Goondas Act. The decisions cited by the ieamed Counsel fog the
petitioner are of no avail.
14. i It is not out of piace to mention that on M
Advisory Board under the Goondas Act 1:.-age sent ‘a genoifit to”-t11ed”*;
Government opining that there are suffieiebntii groiin_ds.. for’
detention of the detenu under the -._’Ff,eVV’Vdec£’si’ons
cited by the ieamed Advocate ;—QenereJ”ai”e’-appiicaloleto facts
and circumstances of the case.”4″‘\?AV_e’ infirmity in
the impugned orders. 3 see V the detenu at
Iiberty.
15. In the ‘following order:
The Wait. Petition and same is hereby dismissed.
Sd/-5
JUDGE
B:nV- ” . , . .