NAVEED v. THE STATE OF KARNATAKA

confirmation order dated 22.04.2024 bearing No.HD 129 SST 2024 passed by respondent No.1.

2. Petitioner, who is the brother of one Sri. Nawaz (hereinafter referred to as ‘the detenue’), is knocking the doors of the writ Court seeking relief in the nature of Habeas corpus, aggrieved by the orders referred supra.

3. The facts-in-brief apposite consideration of the case on hand, as borne out from the pleadings are as follows:- The brother of the petitoner namely Nawaz (hereinafter called as 'detenue') alleged to be involved in criminal activities from the year 2016 and his movements were monitored by respondent No.2 and the sub-ordinate police officers, accordingly, 'A' rowdy sheet was opened against him 4 on 18.08.2021 at Bajpe Police Station, Mangalore. Inspite of the same, the detenue continued his illegal acts and he is a threat to the society as he involved in as many as 8 cases from the year 2016 to 2023. Since the illegal activites of the detenue was unable to control by the police with ordinary laws, respondent No.2, based on the report submitted by the Police Inspector of Bajpe Police Station and the Deputy Commissioner of Police, Law and Order, Mangalore, invoked the provisions of the Karnataka Prevention Of Dangerous Activities Of Bootleggers, Drug-Offenders, Gamblers, Goondas, [Immoral Traffic Offenders, Slum-Grabbers And Video Or Audio Pirates] Act, 1985 (hereinafter referred as 'Goonda Act') and passed the detention order agaisnt the detenue on 19.03.2024. Thereby, he has been arrested and sent to Central Prison, Bengaluru by respondent No.2 and the same has been informed to him on the same day. Later, respondent No.2 forwarded the copy of the detention order to the State Government i.e., respondent No.1 and respondent No.1 approved the detention proposal of respondent No.2 on

26.03.2024. The said approval order was communciated to the detenue on 27.03.2024. Later, on 30.03.2024, 5 respondent No.2 was placed detention order before the Advisory Board. Consequently, a meeting of the Advisory Board was fixed on 08.04.2024. Accordingly, the detenue was produced before the Advisory Baord along with his representation. The Advisory board, after considering the oral and written submisison of the detenue, confirmed the detention order passed by respondent No.2 on 18.04.2024. Subsequently, on 22.04.2024, respondent No.1 confirmed the detention order and extended the detention period for one year. The petitioner, being the brother of detenue, aggrieved by these orders, challenged the same in this writ petition.

4. We have heard Sri Lethif.B., learned counsel for the petitioner and Sri B.A.Belliappa, learend SPP-I for Sri Annop Kumar, learned HCGP for the respondents.

5. It is the primary contention of Sri Lethif.B., learned counsel for the petitioner that the documents served upon the detenue along with the grounds of detention with paper book at page Nos.189 to 203, 210 to 280 and 241 to 247 are illegible and they are not readable one. The 6 respondents are mandated to furnish the legible copies of the documents relied by them to invoke the Goonda Act, by enabling the detenue to submit representation as provided under Section 8 of the Goonda Act. According to the learned counsel, the detenue also specifically pleaded the said aspect in his representation to respondent Nos.1 and 2. The said plea of the detenue was affirmed and considered by the respondents while rejecting his representation. As a matter of fact, in the endorsement, the respondent-Authority had directed the Police Commissioner to furnish legible copies of the above mentioned documents to the detenue.

6. Learned counsel for the petitioner would further contend that the respondent-Authority failed to provide the documents relied by them to the detenue while invoking the Goonda Act against him. The documents in paper book at page No.382, the first page of FIR in Crime No.9/2021 and at page No.471, the first page of FIR in Crime No.112/2023 are missing and those are the material documents to be looked into by the detenue to submit a effective representation. The learned counsel contends that out of eight cases relied by Detaining Authority against the detenue, five cases have 7 been registered for the offence punishable under Section 27(b) of the Narcotic Drugs and Psychotropic Substances Act (for short ‘NDPS Act’). All those cases are punishable maximum for a period of 6 months or fine or both. The only case registered against the detenue the offence punishable under Section 302 of IPC is Crime No.330/2016. In the said case, the detenue arraigned as accused No.5. Moreover, he has been enlarged on bail in the said Crime by this Court in Crl.P.No.8028/2017 dated 28.12.2017. The respondent-Authority also failed to produce the bail order before the Detaining Authority before passing the detention order. Hence, without perusal of the said material document, the detention order is passed. Lastly, he would submit that the acts of the detenue would not come within the ambit of ‘Public Order’ and at the most, the same may fall under ‘Law and Order’ category as per the law laid down by the Hon'ble Apex Court in the case of Ameena Begum v. State of Telangana and Others reported in (2023) 9 SCC 587. With these submissions, he prays to allow the writ petition by quashing the impugned detention order. 8

7. In order to buttress his arguments, he relied upon the following judgments of the Hon'ble Supreme Court: (i) Rushikesh Tanaji Bhoite vs. State of Maharastra and others reported in (2012) 2 SCC 72; (ii) Sushantha Kumar Banik vs. State of Tripura and others reported in 2022 SCC OnLine SC 1333; (iii) Shankara Gowda vs. The State of Karnataka and others reported in ILR 2015 Kar 3312; (iv) Rizwan Sharif vs. The State of Karnataka and others [WPHC 113/2015]; (v) Bhupinder Singh vs. Union of India and others reported in (1987) 2 SCC 234; (vi) State of Manipur and others vs. Buyamayum Abdul Hanan alias Anand and another reported in 2022 SCC OnLine SC 1455; and (vii) Jayamma vs. Commissioner of Police reported in ILR 2019 Kar 1543.

8. Per contra, learned SPP Sri B.A.Belliappa for the respondents has filed his statement of objections, similarly, has placed the entire records along with list of authorities in support of his case and submits that, the detention order was passed on account of detenue being the habitual offender, who was involved in offences affecting the public at large and 9 ‘A’ rowdy sheet was already opened against him by Bajpe Police. In spite of the same, he continued his illegal activities. As such, without any alternative, the impugned detention order is being passed and the same has withstood the test of legality before the Advisory Board. He would further contend that the respondent-Authority provided the entire documents to the detenue along with the detention order. Out of those documents, though some of the pages are illegible, the same are not relied by the respondent-Authority while invoking the provisions of the Goonda Act. In such circumstances, those documents need not be legible copies. As far as non-supply of two FIR copies to the detenue is concerned, the said documents also not relied by the respondent-Authority while invoking the Goonda Act. Hence, non-furnishing of legible copy and documents by itself does not vitiate the detention order.

9. Learned SPP would also contend that the detenue has a notorious rowdy element and he is indulged in a murder case, wherein the deceased belongs to different community and thereby, instigated for communal violence at Mangalore City, which caused public disorder. Though the bail order in 10 the said case was not placed before the Detaining Authority, however, the said aspect was very much considered by respondent No.2 while passing the detention order. In such circumstances, there is no such illegality or procedural lapse in the case on hand while invoking Goonda Act against the detenue. Accordingly, the detention order withstood the test of legality. Hence, the learned SPP prays to dismiss the writ petition.

10. Having heard the learned counsel for the parties and perusing the pleadings including the records made available to this Court, the point that would arise for our consideration is: "Whether the order of detention dated

19.03.2024 passed by respondent No.2 bearing No.MAG-1/3/MGC/2024, subsequent approval order dated 26.03.2024 bearing No.HD 129 SST 2024 and confirmation order dated 22.04.2024 bearing No.HD 129 SST 2024 passed by respondent No.1 are sustainable under law?"

11. In order to address the first limb of arugment advanced by the learned counsel for the petitioner that the respondent-Authority failed to provide legible copies of the 11 documents, which were served upon the detenue along with grounds of detention is concerned, it is appropriate to refer Section 8 of the Goonda Act, which reads as under: “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 made and shall afford him the earliest a representation against the order to the State Government. of making opportunity (2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.” (emphasised supplied by us)

12. On careful perusal of Section 8 of the Goonda Act, we find that the duty is bestowed upon the respondents to furnish the order of detention made against the detenue along with the entire materials which are relied upon by the respondents to pass such order within five days, to enable the detenue to submit effective representation to the Competent Authority against such order of detention. 12

13. It is the contention of the petitioner that the detenue was provided with the illegible documents more specifically in the paper book at page Nos.189 to 203, 210 to 280 and 241 to 247 to enable the detenue to give effective representation asserting his right. The position of law in this regard is clear as per the law laid down by the Co-ordinate Bench of this Court in Smt. Parvathamma vs Commissioner of Police and others in W.P.(H.C) No.33/2022, wherein it is held that non-supply of the legible documents/copies to the detenue withholds his rights to make proper and effective representations before the Advisory Board and the same is also in blatant violation of Article 22(5) of the Constitution of India. Further, this position is also reiterated in the judgement passed by the Co-ordinate Bench of this Court in Writ Petition (HC) No.51/2022 case of Smt.R Ramya Vs. Commissioner of Police and others.

14. Additionally, the Co-ordinate Bench of this Court in WPHC No.39/2023 in the case of Smt.Shruthi T.K., Vs. Deputy Commissioner and District Magistrate and Others, in paragraph No.6, held as under; 13 "6. case, instant ..........In documents which have been filed to the detenue have been produced before us. Learned High Court Government Pleader has also gone through the same and was unable to dispute the statement that the documents supplied to the detenue were not legible. Thus, it is evident that the detenue has been deprived of his right to make an effective representation. Therefore, the order passed under Section 3(1) and Section 3(3) of the Act cannot be sustained in the eye of law."

15. This being the settled position, in the case on hand, on careful persual of the documents furnished to the detenue by respondent No.2, it could be seen in the paper book at page Nos.189 to 203, 210 to 280 and 241 to 247, these documents are illegible or not readable. Further, these documents also relied by the Detaining Authority while passing the detention order. As such, respondent No.2 is failed to comply the mandate under Section 8 of Goonda Act, which vitiates the order under Sections 3(1) and 3(3) of the Goonda Act.

16. Nevertheless, on careful persual of the entire paper book furnished by the petitioner, it is clear that at page No.382, the first page of FIR in Crime No.9/2021 and at page No.471, the first page of FIR in Crime No.112/2023 are missing. Out of these two cases, respondent No.2 has relied 14 on Crime No.112/2023 to invoke the Goonda Act against the detenue. In such circumstance, the concerned Police are duty bound to provide the copies of the said FIR to the Detaining Authority for its subjective satisfaction to invoke the Goonda Act so also to the detenue to submit an effective representation against the detention order.

17. Thus, we find merit in the submission made by the learned counsel for the petitioner as certain pages in the compilation are not legible and other important documents were not provided to the detenue. We are afraid to say that these documents would have been proven vital while passing the detention order by the Detaining Authority so also to give representation by the detenue against the detention order. For the reasons discussed supra, we hold the point raised by the learned counsel for the petitioner in this regard in favour of the detenue.

18. To answer the second limb of the argument advanced by the learned counsel for the petitioner that the order of detention lacks consideration of the judicial orders passed in the cases, wherein the detenue has arraigned as an 15 accused. According to the learend counsel, the detenue is enlarged on bail by this Court in Crl.P.No.8028/2017 dated

28.12.2017 in connection with Crime No.230/2016, which was regiseterd for the offence punishable under Section 302 of IPC. This vital document has not been produced before the Detaining Authority by the police. Hence, the Detaining Authority failed to appreciate this material document before arriving at a subjective satisfaction. In this regard, we refer the judgement of the Co-ordinate Bench in the case of Shankara Gowda vs. The State of Karnataka and others reported in ILR 2015 Kar 3312, wherein in paragraph 15, it held as under; Nadu Secretary "15. Therein, reliance was also placed on three Judge Bench judgment of the Hon'ble Supreme Court in the case of Rekha v. State of Tamil Through Government [(2011) 5 SCC 244.] , as well as on the judgment of the Hon'ble Supreme Court in the case of Vijay Narain Singh v. State of Bihar [(1984) 3 SCC 14.] . The Hon'ble Supreme Court therein have held that subjective satisfaction can be arrived at only if the detaining authority considers all the material that is placed before it. If the order of bail or of acquittal are not produced before the detaining authority, the detention order would be invaild. In so reasoning, the Hon'ble Supreme Court also held that it is not possible to attempt or to assess in what manner or to what extent, the consideration of order granting bail would have 16 effected the satisfaction of the detaining authority. It is sufficient to hold that non-placing the relevant material before the detaining authority would render the detention order as invalid."

19. Hence, on persual of the above judgment passed by the Co-ordinate Bench of this Court, it is clear that the Detaining Authority is duty bound to peruse the judicial pronouncements in respect of the cases pertaining to the detenue relied by the concerned Authority/Police.

20. The Hon'ble Apex Court in the case of Nenavath Bujji v. State of Telangana and Others reported in 2024 SCC OnLine SC 367 while dealing with the cases of illegal detention, in paragraph 43, held as under: "ii. Summary of the Findings. 43. We summarize our conclusion as under:- (1) The Detaining Authority should take into consideration only relevant and vital material to arrive at the requisite subjective satisfaction, (ii) It is an unwritten law, constitutional and administrative, that wherever a decision-making function is entrusted to the subjective satisfaction of the statutory functionary, there is an implicit duty to apply his mind to the pertinent and proximate matters and eschew those which are irrelevant & remote, (iii) There can be no dispute about the settled proposition that the detention order requires 17 subjective satisfaction of the detaining authority which, ordinarily, cannot be questioned by the court for insufficiency of material. Nonetheless, if the detaining authority does not consider relevant circumstances or considers wholly unnecessary, immaterial and irrelevant circumstances, then such subjective satisfaction would be vitiated, (iv) In quashing the order of detention, the Court does not sit in judgment over the correctness of the subjective satisfaction. The anxiety of the Court should be to ascertain as to whether the decision-making process subjective satisfaction is based on objective facts or influenced by any caprice, malice or irrelevant considerations or non-application of mind, reaching (v) While making a detention order, the authority should arrive at a proper satisfaction which should be reflected clearly, and in categorical terms, in the order of detention, (vi) The satisfaction cannot be Inferred by mere statement in the order that "it was necessary to prevent the detenu from acting in a manner prejudicial to the maintenance of public order". Rather the detaining authority will have to justify the detention order from the material that existed before him and the process of considering the said material should be reflected in the order of detention while expressing its satisfaction, (vil) Inability on the part of the state's police machinery to tackle the law and order situation should not be an excuse to Invoke the jurisdiction of preventive detention, (viii) Justification for such an order should exist in the ground(s) furnished to the detenu to reinforce the order of detention. It cannot be explained by reason(s)/grounds(s) not furnished to the detenu. The decision of the authority must be the natural 18 culmination of the application of mind to the relevant and material facts available on the record, and first examine (ix) To arrive at a proper satisfaction warranting an order of preventive detention, the detaining authority must, the material adduced against the prospective detenu to satisfy itself whether his conduct or antecedent(s) reflect that he has been acting in a manner prejudicial to the maintenance of public order and, second, if the aforesaid satisfaction is arrived at, it must further consider whether it is likely that the said person would act in a manner prejudicial to the public order in near future unless he is prevented from doing so by passing an order of detention. For passing a detention order based on subjective satisfaction, the answer of the aforesaid aspects and points must be against the prospective detenu. The absence of application of mind to the pertinent and proximate material and vital matters would show lack of statutory satisfaction on the part of the detaining authority."

21. The Hon'ble Apex Court in the case of Ameena Begum (supra) has also drawn a distinction between ‘Public Disorder’ and ‘Law and Order’. The Hon'ble Apex Court by distinguishing the above two terms held that, in order to detain any person under the Act, his/her illegal activities must affect the community or public at large and a mere disturbance of law and order leading to disorder is thus not necessarily sufficient to invoke the provision of the Act. Additionally, for an act to qualify as a disturbance to public 19 order, the specific activity must have an impact on broader community or the general public, evoking feelings or fear, panic, or insecurity. Not every case of a general disturbance to public tranquillity affects the public order.

22. On consideration of the above settled legal position, we are not inclined to appreciate the submission made by learned SPP in this regard for the reason that since the cases pending against the detenue except one for the offence under Section 302 of IPC, the other cases are punishable for the offence under NDPS Act for maxmium period of 6 months or fine or both, those cases may not pass the test of the law laid down by the Hon'ble Apex Court in the above two judgments.

23. The respondent-Police Authorities are duty bound and at liberty to expend appropriate legal action against the detenue for his alleged illegal activities beside to file application for cancellation of bail granted to the detenue. As a matter of fact, the trial Court while granting bail to the detenue in Crime No.9/2021 and Crime No.112/2023 had given liberty to the police to seek cancellation of bail on 20 violation of bail conditions i.e., if he involved in any other offences. Having been failed to exhaust such remedy, invoking the provisions of the Goonda Act and keeping the detenue under illegal detention violates the Fundamental Rights of the detenue enshrined under the Constitution. There is no proper justification or rationale is forthcoming from the order of detention or the subsequent orders. Hence, we answer the point raised above in the negative and proceed to pass the following: ORDER a) Writ petition is allowed. b) The order of detention dated 19.03.2024 passed by respondent No.2 bearing No.MAG- 1/3/MGC/2024, subsequent approval order dated 26.03.2024 bearing No.HD 129 SST 2024 confirmation

22.04.2024 bearing No.HD 129 SST 2024 passed by respondent No.1 stand quashed. c) Consequently, the respondents are directed to set the detenue at liberty, forthwith. d) However, Registry is directed to communicate this order to the respondents as well as the 21 Jail Authorities release the detenue forthwith, in case, he is not needed in any other cases. No order as to Costs. Sd/- (V KAMESWAR RAO) JUDGE Sd/- (RAJESH RAI K) JUDGE VM