While taking the most pragmatic step in upholding the legal right of the detenu, the Kalaburgi Bench of the Karnataka High Court in a most learned, laudable, landmark and latest judgment titled Smt Shrenika vs The State of Karnataka & Others in Writ Petition No. 201957/2023 (GM-RES) and cited in 2023 LiveLaw (Kar) 341 that was pronounced as recently as on August 31, 2023 has quashed a detention order passed under the Karnataka Prevention of Dangerous Activities Act 1985 (Goonda Act) on the ground that authorities failed to provide to detenu, the documents relied on by them, in a language known to the detenu. It must be noted that the petitioner who is the wife of the detenu had contended that the invocation of the provisions of the Goonda Act against the detenu in order to keep him under detention for a period of 12 months is illegal and impermissible. As per the provisions of Section 3(2) of the Goonda Act, the authority at the first instance has to pass an order of detention for a period of 3 months and thereafter if the authority intends to detain further, it has to pass further detention order for another period of 3 months i.e. after expiry of every three months there must be fresh order of detention. A Division Bench comprising of Hon’ble Mr Justice KN Phaneendra and Hon’ble Mr Justice K Natarajan who authored this notable judgment held that there was no sufficient opportunity given to the detenu to submit his representation either before the Government or before the Advisory Board as contemplated under Section 3(3) of the Goonda Act which is not only a gross violation of the provisions of law but also the violation of natural justice under Article 22(5) of the Constitution of India. The Court found merit in contention of petitioner and thus quashed the detention order. Very rightly so!
At the very outset, this learned, laudable, landmark and latest judgment sets the ball in motion by first and foremost putting forth in para 1 that, “Petitioner, wife of Sri.Huchappa @ Dhanaraj Kalebag, (for short ‘detenue’) has filed the present petition being aggrieved by the order of detention of her husband under the provisions of The Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Gundas, Immoral Traffic Offenders, Slum-Grabbers and Video or Audio Pirates Act, 1985 (hereinafter referred to as “Goonda Act”) dated 10.04.2023 passed by the District Commissioner and District Magistrate, Vijayapur (respondent No.2) in case bearing No.MAG-CR-24/2021- 22, as well as the confirmation order passed by the State of Karnataka represented by its Secretary, Department of Internal Administration (Law and Order), (respondent No.1) vide order bearing No.HD 211 SST 2023 dated 19.04.2023 for a period of 12 months.”
To put things in perspective, the Division Bench envisages in para 2 that, “The undisputed facts of the case would reveal that the petitioner is the wife of Sri.Huchappa @ Dhanaraj Kalebag i.e., detenue and they both are the residents of Ambedkar Nagar, Indi. It has been stated that the Deputy Superintendent of Police Indi, Sub Division, Indi, submitted a report bearing No.1702:2022 dated 04.10.2022 to the Superintendent of Police, Vijayapur for accepting the proposal of Circle Inspector, Indi, for invoking the provisions of Goonda Act against the detenue. Based on the same, the respondent No.3 i.e., Superintendent of Police submitted a proposal to the Deputy Commissioner and the District Magistrate, Vijayapur, in case bearing No.16/DCRB/169/2023 dated 08.04.2023 to invoke the provisions of Goonda Act, 1985, against the detenue for preventive detention under Section 2(g) of the said Act. Accordingly, respondent No.3 i.e., sponsoring authority along with the proposal, submitted compilation of documents containing the particulars of the detenue i.e., social, educational, economical background and the particulars of the cases in which the detenue is allegedly involved. On the basis of the said proposal submitted by respondent No.3 i.e., sponsoring authority, the respondent No.2 exercising the powers under Section 3(1) of the Goonda Act passed an order dated 10-04-2023 in case bearing No. MAG/CR24/2021-22 as per Annexure-A, detaining the detenue for an initial period of 12 days starting from the date of passing of the order. That on 10-04-2023 the detaining authority supplied the documents to the detenue and respondent No.2 also intimated the detenue about the detention order dated 10.04.2023, that he can prefer an appeal to the State Government and Advisory Board against the order of preventive detention. Thereafter, the respondent No.2 vide letter bearing No. MAG/CR-24/2021- 22 dated 11-04-2021 forwarded the proposal to respondent No.1 for confirmation/approval of the order of preventive detention of the detenue and based on such proposal, the respondent No.1 i.e., State Government confirmed the order of detention passed by respondent No.2 vide order dated 19.04.2023 bearing order No.HD 211 SST 2023 as per Annexure-D and thereby directed the detenue to be kept in detention for a period of 12 months starting from 10.04.2023. The said order of detention is challenged under this writ petition. However, before filing this writ petition, the petitioner has filed WP.(HC) No. 200006/2023 before the co-ordinate bench of this Court, which came to be disposed of by order dated 20.06.2023 reserving liberty to the petitioner to file appropriate writ petition against the detention orders. Hence, the petitioner filed this writ petition.”
While citing the most relevant case laws, the Division Bench observes in para 23 that, “The co-ordinate Bench judgment of this Court in the case of Iranna Vs. Government of Karnataka and Others, reported in 2006(4) Kar.L.J.200 (DB), by relying the judgment of the Hon’ble Supreme Court in the case of Abdul Latif Abdul Wahab Sheikh Vs. B.K.Jha and Another, reported in AIR 1987 SC 725 and the case of S.M.D. Kiran Pasha Vs. Government of Andhra Pradesh and Others, reported in (1990) 1 SCC 328, it is held at paragraph No.6 as follows;
“From the aforesaid judgments of the Supreme Court, it is clear that the procedural requirements, are the only safeguards available to a detenue since the Court is not expected to go behind the subjective satisfaction of the detaining authority. The procedural requirements are therefore, to be strictly complied with, if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard.
Section 10 makes it mandatory for the Government to place the ground on which the detention order has been made and the representation, if any made by the person affected by the order and in case where an order has been made by an officer, also the report by officer under sub-section (3) of Section 3 of the Act before the Advisory Board. This being a mandatory provision which has to be complied with under Article 22 of the Constitution of India, a person cannot be kept in detention beyond three months without referring his case to an Advisory Board. If the procedural requirements of law has not been complied with, the order of detention ceases to be in existence after the expiry of three weeks from the date of detention and therefore, the said order of detention is liable to be quashed.”
Quite significantly, the Division Bench propounds in para 24 holding that, “In the case on hand, the initial detention order as per Annexure-A, passed on 10.04.2023. Admittedly, the detenue was produced before the Advisory board on 16.05.2023. As per the relevant provisions of Goonda act, the detenue shall produce before the Advisory Board within 21 days. But in the instant case, the respondents failed to produce the detenue within the stipulated period i.e., on or before 01.05.2023. Nevertheless, there was no sufficient opportunity given to the detenue to submit his representation either before the Government or before the Advisory Board as contemplated under Section 3(3) of the Goonda Act which not only a gross violation of the provisions of law but also the violation of natural justice under Article 22(5) of the Constitution of India as per the settled position of law by this Court and Hon’ble Apex Court stated supra.”
Be it noted, the Bench notes in para 26 that, “Though the learned Addl. Advocate General relied upon the judgment of the Hon’ble Apex Court in Dimple’s case stated supra, on careful perusal of the dictum laid down by the Apex Court in the said judgment that detaining authority must be satisfied that the detenue is likely to be released and the nature of activities of the detenue indicate that if he is released, he is likely to indulge in such prejudicial activities and therefore, it is necessary to detain him in order to prevent him from engaging in such activities. But in the case on hand, the respondent authority have failed to substantiate the said aspect for the reasons that, though the respondents stated 10 case pending against the detenue, but out of those 10 cases 4 cases were already acquitted and 1 case is on trial stage. Most of the cases are of the year 2013, 2015 and 2018. There are no such recent cases filed against the detenue. Further, as discussed supra though the detaining authority served the documents to the detenue but the translate and legible copies are not supplied to the detenue. Hence, the judgment cited by the Addl. Advocate General are not applicable to the present case.”
Finally and far most significantly, the Division Bench concludes by holding in para 27 that, “As we are dealing with the case of personal liberty of the detenue since he is in detention from 10.04.2023 and respondents have failed to comply the mandatory provisions contemplated under the Goonda Act and also the order of detention is passed against the law laid down by the Hon’ble Apex Court and also the coordinate bench of this Court in catena of judgments, we are of the considered view that the order of detention passed by respondent Nos.1 and 2 as per Annexure-D and A respectively are liable to be quashed. In that view of the matter, the petition deserves to be allowed. Hence, we answer the point raised above and proceed to pass the following;
ORDER
a. The petition is allowed.
b. The detention order dated 10.04.2023 passed by respondent No.2 in case bearing No.MAG-CR24/2021-22 and the order dated 19.04.2023 passed by respondent No.1 bearing No.HD 211 SST 2023, are quashed. Consequently, the respondents are directed to set the detenue at liberty.
c. Registry is directed to communicate the order to the respondent Nos.1 and 2 as well as the Jail authorities to release the detenue forthwith, in case, he is not required in any other cases.”
In sum, it thus now becomes indubitably clear as held by the Division Bench of the Karnataka High Court in this leading case that preventive detention can be certainly quashed if authority fails to provide documents relied upon in language known to detenu. In this case we thus see that the Karnataka High Court very rightly quashed the detention order of the detenu for the grounds as stated hereinaforesaid. No denying it!
Sanjeev Sirohi