Dismissed

Varalakshmi M S v. Commissioner of Police Bengaluru

Karnataka HC26 Jun 2023WPHC/23/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a habeas corpus petition filed by the mother of a detenue. The court held there was no unjustified delay in deciding the detenue's representation and affirmed that preventive detention is valid even if the person is in custody, provided the authority anticipates they will engage in anti-social activities upon release if set free.

What the court decided

AI extract

Varalakshmi M S Vs Commissioner of Police… — Pension and Retirement Benefits | Karnataka HC (2023)

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NC: 2023:KHC:22050-DB WPHC No.23 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 26^TH DAY OF JUNE, 2023

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PRESENT

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THE HON'BLE MR. JUSTICE ALOK ARADHE

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AND

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THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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W.P.H.C. NO.23 OF 2023

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BETWEEN:

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Digitally signed by RUPA V Location: High Court of Karnataka

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VARALAKSHMI M.S. AGED ABOUT 45 YEARS W/O LOKESH KUMAR B P R/AT NO 222, 4TH CROSS, MARUTHI NAGAR VRUSHABHAVATHI NAGAR KAMAKSHIPALYA, BANGALORE 560079 AADHAR CARD NUMBER 9401 2938 0255.

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…PETITIONER

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(BY SRI. ROHAN VEERANNA TIGADI, ADV.,)

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AND:

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COMMISSIONER OF POLICE BENGALURU, NO.1, INFANTRY ROAD BENGALURU 560001.

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STATE OF KARNATAKA VIDHANA SOUDHA, AMBEDKAR VEEDHI SAMPANGI NAGARA, BENGALURU KARNATAKA 560001 (REPRESENTED BY SECRETARY-LAW AND ORDER).

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SENIOR SUPERINTENDENT CENTRAL PRISON, BENGALURU BENGALURU 560001.

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…RESPONDENTS

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(BY SRI. V.S. HEGDE, SPP-II A/W SRI. THEJESH P, HCGP)

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THIS WPHC IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF HABEAS CORPUS DECLARING THE DETENTION OF SAGAR @ VEERU (CENTRAL PRISON DETENUE NO.1908 OF 2022 AND UTP NO.8789/2022) IS ILLEGAL AND SET HIM AT LIBERTY FORTHWITH AFTER QUASHING THE ORDER BEARING REFERENCE NUMBER 18/CRM(4)DTN/2022 DATED 29.9.2022 (ANNEXURE-A) PASSED BY THE 1ST RESPONDENT UNDER SECTION 3(1) OF THE GOONDA ACT, THE ORDER BEARING REFERENCE NUMBER HD 574 SST 2022 DATED 6.10.2022 (ANNEXURE-B) PASSED BY THE 2ND RESPONDENT UNDER SECTION 3(3) OF THE GOONDA ACT AND ORDER BEARING REFERENCE NUMBER HD 574 SST 2022 DATED 5/11/2022 (ANNEXURE-C) PASSED BY THE 2ND RESPONDENT UNDER SECTION 13 OF THE GOONDA ACT & ETC.

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THIS PETITION COMING ON FOR FINAL HEARING, THIS DAY, ALOK ARADHE J., MADE THE FOLLOWING:

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ORDER

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In this petition under Article 226 of the

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Consitution of India., the petitioner who is the mother of the detenue viz., Sagar has assailed the validity of the order of detention dated 29.09.2022 as well as the order dated 06.10.2022 passed under the provisions of Karnataka Prevention of Dangerous Activities of Bootleggers, Drug offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum

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Grabbers and also Video and Audio Pirates Act, 1985 (hereinafter referred to as 'the Act' for short).

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Facts giving rise to filing of this petition

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briefly stated are that the petitioner is the mother of the detenue viz., Sagar. The detenue was arrested on 01.09.2022 by Girinagar Police Station in connection with crime No.253/22 for the offences punishable under Sections 307, 504, 506 read with Section 34 of the Indian Penal Code, 1860 and Section 251(B) of the Arms Act, 1959. Admittedly, 7 other cases are pending against the detenue, which

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are as under:

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Sl. No	Police Station	Case No. /Crime No.	Section of the Act	Present Stage
1	Amruthuru, Tumakuru District	218/2017	143, 341, 323, 363, 384, 120B, 188, 201 r/w 149 of IPC	Pending in court
2.	RajaRajeshwari Nagar	42/2018	395, 397 r/w 149	Pending in

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NC: 2023:KHC:22050-DB WPHC No.23 of 2023

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			of IPC	Court
3.	RMC Yard	146/2019	506, 504, 143, 147, 148, 307 r/w 149 of IPC	Pending in Court
4.	Hanumantha Nagar	234/2020	143, 144, 146, 147, 148, 307 r/w 149 of IPC	Pending in Court
5.	Hanumantha Nagar	152/2021	143, 158 r/w 149 of IPC and Section 20(B)(II)(b) NDPS Act and 27(2) Arms Act, 1959	Pending in Court
6.	Sanjay Nagar	56/2022	307, 364 r/w 149 of IPC	Pending in Court
7.	Hulimavu	58/2022	143,144, 147, 148, 341, 323, 324, 326, 504, 506, 427 r/w 149 of IPC	Pending in Court

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The report was submitted to the Commissioner of Police. Thereupon an order of detention under Section 3(1) of the Act was passed on 29.09.2022. The aforesaid order was forwarded by Commissioner of Police Bangalore to the State Government for confirmation. The State Government by an order dated 06.10.2022 passed under Section 3(3) of the Act confirmed the order

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passed by the Commissioner of Police. The Advisory Board on 02.01.2022 recommended that there are sufficient grounds for detention of the detenue under the Act. Thereafter, by an order dated 05.11.2022, the State Government confirmed the detention of the son of the petitioner under Section 13 of the Act.

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The detenue submitted a representation on 10.02.2023 to the State Government, which was received by the State Government on 13.02.2023. The petitioner filed this writ petition on 07.03.2023. The representation was rejected by an order dated 09.03.2023. In the aforesaid factual background, this petition has been filed.

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Learned counsel for the petitioner has

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assailed the validity of the order of detention on the following two grounds. (i) There is a delay in considering the representation of the detenue which vitiates the order of detention; (ii) That the detenue was already in custody when the order of detention was passed and the satisfaction that the detenue is likely to be released from jail is based on no material and the order is liable to be quashed.

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On the other hand, learned SPP II has submitted that there is no unreasonable delay in deciding the representation of the detenue which vitiates the order of detention. It is also urged that

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the detaining authority was conscious of the fact that the detenue was in custody and had formed an opinion that he is likely to be released on bail and

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shall engage himself in the activities prejudicial to the public order. In support of aforesaid submissions, reliance has been placed on decision of Hon'ble Supreme Court in 'KAMARUNNISSA VS. UNION OF INDIA', (1991) 1 SCC 128.

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We have considered the submissions made

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on both sides and have perused the record. The Act

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was enacted with an object to ensure that the maintenance of public order in the State is not adversely affected by the activities of known antisocial elements. The legislature also took note of the

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fact while enacting the Act that the activities of antisocial elements like bootleggers, drug offenders, gamblers, immoral traffic offenders and slum grabbers and also video and audio pirates, have caused a feeling of insecurity among the public and

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even tempo of life especially in urban areas has frequently been disrupted because of such persons. Section 2(g) of the Act defines the expression 'goonda' who either by himself or as a member of or leader of a gang, habitually commits or attempts to commit or abets the commission of offences punishable (under Chapter VIII, Chapter XV, Chapter XVI), Chapter XVII or Chapter XXII of the Indian Penal Code (Central Act XLV of 1860). Section 3 provides that the State Government on being satisfied that with a view to prevent a person from acting in any manner prejudicial to maintenance of public order, it is necessary so to do, it may pass an order of detention. The order of detention has to be approved by the State Government under Section 3(3) of the Act. Section 8

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confers a right on the detenue to submit a

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representation to the State Government.

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It is well settled in law that preventive

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detention is not punitive but is a precautionary

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measure and its object is not to punish a person but

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to prevent him from doing any illegal activity which

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may be prejudicial to maintenance of public order.

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The power of preventive detention is invoked as an anticipatory measure and the same does not relate

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to an offence in respect of which criminal proceeding

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is pending to punish a person for the offence committed by him. It is equally well settled legal proposition that action of the authority in detaining

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a person being only precautionary, the matter has to be necessarily left to the discretion of the authority. However, since preventive detention essentially deals

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with curtailment of person's liberty, therefore, the procedural safeguard laid down by the statute have to be strictly complied with. (See: 'UOI Vs. PAUL MANICKAM' AIR 2003 SC 4622, 'GIMIK PIOTR Vs. STATE OF TAMIL NADU' (2010) 1 SCC 609).

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representation on 10.02.2023, which was received by the State Government on 13.02.2023. The aforesaid representation was decided by an order dated 09.03.2023. The question of delay in deciding the representation is to be determined the facts and circumstances of the case. In the facts of this case, in our considered opinion, there was no such delay in deciding the representation which would vitiate the order of detention. Therefore, the contention that on account of delay in deciding the representation

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submitted by the detenue, the order of detention is vitiated does not deserve acceptance.

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The Hon'ble Supreme Court in ' UNION OF INDIA AND ANR. VS. DIMPLE HAPPY DHAKAD', 2019 SCC ONLINE 875 while reiterating the principles laid down by it in 'KAMARUNNISSA VS. UNION OF INDIA', (1991) 1 SCC 128 has held that even if the detenue is in custody an order of detention can be passed provided that the detaining authority is satisfied that if the detenue is released

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from the custody, he is likely to indulge in the activities, which are prejudicial to the maintenance of public order. From perusal of the order of detention, it is evident that the detaining authority was conscious of the fact that the detenue was in custody and the nature of activities of the detenue indicate that if he is released on bail, he is likely to

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indulge in the activities, which are prejudicial to the maintenance of public order. Thus, the aforesaid detention has been recorded by the detaining authority. Therefore, the contention by the detenue that since he was in custody, therefore, the order of detention could not have been passed does not deserve acceptance.

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Admittedly, the detenue at the time of passing of the order of detention was in custody in connection with Crime No.252/23 for the offences punishable under Sections 307, 504, 506 read with Section 34 of the Indian Penal Code, 1860 and Section 251(B) of the Arms Act, 1959.

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For the aforementioned reasons, in our considered opinion, the order of detention which has

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been affirmed by the State Government does not suffer from any jurisdictional infirmity warranting interference of this court in exercise of powers under Article 226 of the Constitution of India.

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For the aforementioned reasons, the writ

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petition fails and is hereby dismissed.

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Sd/JUDGE

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Sd/JUDGE

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Varalakshmi M S v. Commissioner of Police Bengaluru

Case brief

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Varalakshmi M S v. Commissioner of Police Bengaluru

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