.. 2 H
VVPHC FILED UNDER ARTICLE 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO DECLARE THE
DETENTION OF SRI HANIF @ THI LI HANIF. ,._S/O
KHADAR BASHA BY ORDER OF' DETENTION IN EINCILQISH
BEARING NO.MAGi1I/CR/ 121 /2009- £0 DATED 09.0'?
[ANN-A} PASSED BY R} AND
This WPHC coming on for dictating Orders, I
day, NAGARATHNA, J, made the followigrlg:-»
ORDER@
The nephew of the detenu 11.x':l'IT}'I('I'."
Thirthahalli Hanif, has tiled petitionvnfigbyggyfiway of
habeas corpus by cha1leiigi'ng detention dated
9.7.2009 {Annexure v-~ A] ffelspondent and
the order [d the approval
granted by order dated 14.7.2009
{Annexu}rve--(_3vIl_A in the eye of law. The
said order.__of dete_ntio1?I under section 3 of the
Kamataka Prevention ofbangerous Activities of Bootleggers,
€.OEff'enders, dainblers, Goondas, Immoral Trafiic
Grabbers Act, 1985 [hereinafter referred
to as-.f_the
Aocrording to the petitioner, the grounds of detention
gllfilirnished to the detenu is in English language and also
'*--.I:ser5ved in Kannada language which are produced as
4:.'Annexures - B & B1 respectively; that the order of detention
'§
21 X,
X'
H 9 -
been done in the instant case. It is also submitted that in
the Kannada version of the detention order it is mentioned,
"*2-we %E§:s¢t:53€ée:u.,$ ééssafi.
V
C:3\;i_.'§;gJ{x;'t:a">fi3: 'Zc0G?Q:'%}f;"§C,Q,E}'%'EC9€'"go£;'i?"_pf" it
C.'
But, the said words are absent in the English vers_:i.on"»of _
detention order and hence there is variance between. two.__ i
Either it is a case of there being two_vdetent7ionyo1*ders"w.*L%hich;va it
cannot be issued under the Act.__or
contended that the Kannada translation of order
of detention is at variance'}«. in the
writ petition with regard to documents
in the bound ««rei.terated. There is
reliance placed this court as well as
the Apelft the.'yat'vious contentions raised
by the learned of the petitioner.
13. Per contra, leamiaedtijidditional Advocate General has
subrn-ittedeV.thatt the detaining authority has to consider oniy
'the' aya.ilable for passing of the detention order and
not revsulti-"of; the cases which are referred to in the order
. 'of detenfion; that the subjective satisfaction which has to be
at by the detaining authority within the meaning of
...Wsec§tion 3 of the Act cannot be questioned in a court of law
"brand that even if the result of the cases are in favpur of the
a./"
- 11 ..
15. Annexure-A is the English version of the order of
detention which refers to section 312] of the Act and in
order to prevent the detenu from acting in any 'I_V1v.1"a"'L.3'_.ii1_eE1'..u
prejudicial to the maintenance of public G_4I';(..le1'.,T'i'Z'' "
necessary to make an order directinge him to 00
Annexure-A1 is Kannada version ofwtAne;'_"'said ord'er'wrhereifi.i..
specific reference has been madevto. the gambling of
the detenu by stating as 1:'_ollows:y_____u"
Annex.ure--C perusal of the
same, it n.ot:ed1f_. iireamble the detaining
authority has thegambiing activities of the detenu
has affected pL1blicv..or:der in the society and details
of the; 'cases registered "against the detenu in Davanagere
0"town'i'a.reVg1ven.at s1.'i"\:"c$s. 1 to 38.
1006; of the said details of the cases, it is
'V noticed xthaththe cases referred to at Si. Nos. 1 to 26 were the
V' rriatter of an earlier detention order dated 22.5.2000
questioned before this court in WP{HC} No.98 of
2000. This court by order dated 28.8.2000 quashed the
0. order of detention reserving liberty to the respondents to
pass a fresh order in accordance with law”. Be that as it
.. 12 _
may, while referring to these twenty six cases out of thirty
eight cases, the detaining authority has nowhere indicated
that there was an earlier order of detention which A’
subject matter of chaiienge before this court waYgbac.k: V’
year 2000. In this context, it would be»Aof.re1evancie”to if if
the statement of objections filed
State has tried to justify byv__v’s~tating’~ the:-gorder’; of
detention in the instant case is on :lV\._IAosv.:§1 to 26
cases referred to in the but gases, details of
which are given andvwhich cases at S1.
Nos.27 to orderhof det.ention,””thereby it would
indicate that the:..Sb’tateV” up with regard to the
first twenty_ referred to in the order of
detention. ‘ 4’
17. However; we eannotffaccept the justification sought to
be I1iadei.by stating fthatfit is only with regard to S1. Nos. 27
to cas’e«sj.that_ the order of detention has been made when
therefis nvonapjiilication of mind by the detaining authority
“with regard to s1. Nos. 3. to 26 along with s1. Nos. 27 to 38.
at the said material was to be the subject matter of
_.._””‘deter1tion in the instant case, then it would have been
ffffaiecessary to refer to the earlier detention order which had
been quashed by this court. It is also necessary to state that
4*?/i
ox”
“.13..
the cases referred to at S1. Nos. 1 to 26 was referred to in the
earlier detention order in the year 2000 and that libert;?v.*as
reserved by this court. But for a period of nine
nothing had been done and when the second.: of
detention has been made impugned in the instant case,
those very cases have been again referred to “WiAt}IOl’1t any 00
indication regarding the previou-siiorderyhof
we find is not just and proper. A 1
18. In this context, tis’.t_’obb_’advert to two
decisions of to of ‘CHHAGAN
BHAGWAN OTHERS’, reported
in AIR .t;”9a9i_”;t case of ‘JAHANGIR
~ POLICE COMMISSIONER,
AmuEDABA’n_VAND’ reported in AIR 1989 so
‘the first.o_f___the decision referred to above, it is
AhgstatedyVth.atawhe1*e_’the detaining authority while passing the
second’ order. 00 detention has referred to the earlier
–Vdetention”*V_order and the Judgment of the High Court
0 it it 0 flquashingvvit, presumably for the purpose of showing that the
gjdetennd inspite of the earlier detention order was continuing
0 bootlegging activities and the detaining authority said
it clearly in affidavit in reply, that he took into consideration
the previous grounds of detention also for his conclusion
ea
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that the detenu was engaged in bootlegging activities since
long thus, in other words, the detaining authority has
into consideration the earlier grounds of detentionlié
grounds had been nullified by the
subsequent detention order was vitiaatediionv the *gr’oui1d
the detaining authority had taken i’nuto’–._consid.Teration it
grounds of earlier detention ordervialcng with_other
The said decision is relevant in”‘as’. inthebinstant
case, there is no referencelbtoivdetention order or
the same beingiqulashediziby as the liberty
being reservedlalnrd has been allowed
to pass and the impugned
order we find that there is a non-
application loi7_inindci1V thisaspect of the matter.
” V’ ‘-1.9. ~.,_S’irnilarly, in thesecond decision referred to above, it is
order of detention cannot be made after
consi_dering.”thei” previous grounds of detention when the
“same hasfbeen quashed by the court and if such grounds
into consideration while forming the subjective
____”:’sati’;sfaction by the detaining authority in making the
u”.detention order, the order of detention will be vitiated. It is
of no consequence if the further fresh facts disclosed in the
grounds of the impugned detention order have been
ii,»
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that the cases referred to at S1. No.38 has also been quashed
after passing the order of detention. On a consideration of ‘
this material, we find that the detaining authority has
applied its mind on a common and even basis to
cases which is evident from the following statemerrts _
the grounds of detention.
“I have gone through all these cases it
Sections of Karnataka Police Act;—_1963”:.in’der€ V’ A T
which you have been convicted seheral ttm-BS.’
“A perusal of all the above-._ir1ctdents= indicates
that you are not amenable-“to. ‘thelU_rdtnaJ’y”La.LDs
of the land. ‘1’hu,s,’ct_fter appliccitéo_:i. mind to
the facts of the case “an_’a1.ysed.h_ above, I am
fully convinced that H1’_t_visv.necesVsary tofqletain you
under the Act.,_ Arid hence,21*-havegpassed the
detention:orC1%:r:”
On a reading of thehsaid r’nafterial,_..– itxbecomes apparent that
the casesllhaveheen “eo’r:.s’idered together and in our View the
cases cannotbe segr”egatedi’*-from each other and hence the
provisions ofsection Act cannot be made applicable
‘ in cased.” itv–is also necessary to note that while the
of d.eten’tio1i.speaks about thirty eight cases, the State
initsreply i*s’j_i.risisting that it is only twelve cases at Si.No.
C27 to “38suw.hich is the basis of detention. Out of the twelve
it l{C:asels”«–..four cases were not brought to the notice of the
authority by the sponsoring authority in respect of
u this court had quashed the complaints and in other
33»
a
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cases there were acquittais or proceedings were dropped, we
feel that the material which was placed before the detaining
authority could not have led the detaining authority to arrive
at a subjective satisfaction. In View of the
detention order namely, the cases referred to at”A.’:S:1.i’,J:e…:VVi” it
38 not being legally sustainable, the:-detentipon order is Vtobe
heid as not Vaiid in the eye of law.
22. In this context, it is necessa*ryRto_ refer’-tottthe decisions
of the Apex Court mentiopried tie1o§i}v”W*hich«.were adyerted to
by learned counselpfor thepppetitionerib
Ea} ‘TULSHI minis avsi =S.T;ATE OF WEST
BENGAIQ’,nprepor3i;ed .1975 SC 638
{b} eisiariifiigp STATE OF WEST
BENGAL’, 1974 SC 806
[c} fMoHD’;”~.1mA,nmt*;ALi”tVKHAN Vs. STATE or WEST
~ ;BE1\7GAL’, reported in AIR 1976 SC 734
_vhti*om the above reasons, we also find that the
the order of detention is not on par with
t the English version of the order of detention for the reasons
theuéambling activity of the detenu is specifically
_’ment_ioned in the kannada version which is absent in the
English version and therefore there being a variance in the
– 38 _
two. the order of detention has to be quashed on the ground
that there is no effective communication in this regard.
24. In this context, it is necessary to refer to the decision
of this court passed in WPIHC] No.8 of 2006 _
‘SMT. RENUKA vs. GOVERNMENfil: or ” ~ it
disposed of on 12.6.2006 wherein wasr«Asvtated’A..that’ if
considering the Kannada Version-of the order of as
a translated order, the referenc°e~.:._V_made was
missing the main order’df’V1rhich held to
be a case where there irifvvhthejvvidetention order
and hence the &qL11ashed.«:f’Tnetreasoning given in
the said to the facts of the
Present 0 V.
25. In the case DHARNA ALIAS KOKA
vs. *0THERS’, reported in AIR 1990
” «SC is alsoddsteded by the Apex Court that in order to
“eoffectittei’ representation, the grounds must be clearly
stated”dor othdejfxrdfise it would be a frustration of the rights of
_ tithe detenui
I1
“…»;.i6n. this context, it is also relevant to refer to the
–..t.’.-detgisdion of the Apex Court in the case of ‘M18. TSERING
‘f:1:>oLKAR Vs. Tfm ADMINISTRATOR, UNION TERRITORY
»’ _,#”
.-I’/’
_ 19 _
OF DELHLI AND OTHERS’, reported in AIR 1987 SC 1192
wherein it is stated that in the matter of preventive
detention, the test is not one of prejudice but one of strict
compliance with the provisions of the Act and when ..
failure to comply with the requirements, it becorhes H
to sustain the order.
27. Learned Additional Advocate d’seeera’i, iiidwevef,
relied upon certain decisions namely –
[a} ‘PRAKASH .1v§…’.com&IS’s1oNER
AND SECRETARY, G}()VERP}’1I:lE1_y’T. for -KERALA AND
OTHERS ‘, reported-i”r1″AiR mas (S1135?) ‘sec 144
{b} ‘MRS. –VsESf§AG1RI Vs. STATE or
KEIQIAV.A.n:;:p_ArJo9’ia:s~i2f,:ifeperted in (1982) 2 sec
330 ~
s’r1:1:L~ .1-‘uses zimzziioon, SABHA AND OTHERS’.
.»i;epo1’ted in ‘2’4′;’J.R_W.¥’93O so 1896
(c) ‘GUJg1R4T’ LTD.,’ Vs. GUJARAT
‘Veto the subjective satisfaction arrived at by the
detaining authority cannot be questioned in a court of law.
KWe agtreevttwith the said proposition, but in the instant case,
fin.d that the material which was placed before the
authority could not have led to the subjective
tqysatisfaction. particuiariy, with regard to the reasons which
-iéx
N20,.
we have assigned while considering in the eariier part of the
order and the fact that the majority of cases referred to by
the detaining authority, namely, S1. Nos. 1 to 24e.V§§¢i-Q
subject matter of detention order passed way _
year 2000 and which were quashed by this it
liberty to pass a fresh order of detearitionoxbutey .0
date of the impugned order i.e.;9,_f7.2009_,l”there,»hs:s
action taken under the provisionstof the
provision clearly stipulates. to preyent the
detenu from acting in to the
maintenance order, v§fouid”be…:necessa1y to pass
order of deteilijtion.’ last nine years, the
detaininigllautlrovrityli action is also an
important. and V yvhich we have taken into
conside_r_ation’antl .eoupied”‘s§tIith the fact that the said cases
‘dd’beingj’:eon.sidered ha1o’ng’wit11 the other cases, totally thirty
;:a–..whole would mean that the said cases
cannot be separated or segregated.
38. For the aforesaid reasons, the order of detention is
._ ” Hence, the writ petition is allowed by quashing the
of detention bearing No.MAC«[1}/CR/121/2009-10
uulrdated 9.7.2009 [Annexure–AI the kannada Version of the
order bearing No. No.MAG[1}/CR/121/2009-10 dated
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9.7.2009 [Annexure-~A1], both passed by the first respondent-‘–.._
and the order of approval bearing No. HD/519/ssr/2<)(§9«9f9'.j'–,:"-.
dated 14.7.2009 [AnneXure—-CI passed by the
respondent are aii quashed.
29. The detenu is ordered to beset at if isdivnzot
required in any other case. The opézrettive pd1’tidn*V’:0f ‘:”;E1is
order shall be communicated zto “respondeniyy for
compliance.
_ ‘