Smt. Nandini Vs the D.G. and I.G.P. of Police

THIS WPHC IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO A) ISSUE A WRIT IN THE NATURE OF HABEAS CORPOUS COMMANDING THE RESPONDENTS FOR THE PRODUCTION OF THE BODY OF THE HUSBAND OF THE PETITIONER MR.SHARATH @ SHARATH KUMAR S/O MUNIYA IN THE COURT AND SET HIM AT LIBERTY AND B) QUASH THE IMPUGNED ORDER AT ANNEXURE-A HAVING BEARING NO.MAG(2)CR/L & O/(G)/01/2024-25 DATED 04.04.2024 AND ORDER OF CONFIRMATION OF DETENTION BEARING NO.HD 160 SST 2024 AT ANNEXURE-D DATED 03.05.2024 PASSED BY THE RESPONDENT NO.2 AS ILLEGAL AND VOID AB INITIO.

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THIS WPHC HAVING BEEN HEARD AND RESERVED FOR ORDER, THIS DAY, KRISHNA S. DIXIT.J., PRONOUNCED THE FOLLOWING:

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ORDER

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Petitioner happens to be the wife of one Mr. Sharath @ Sharath Kumar, who has suffered the Detention Order dated 04.04.2024 made by the 4^th Respondent – Deputy Commissioner under Section 3(2) of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas (Immoral Traffic Offencers, Slum-Grabbers and Video or Audio Pirates) Act, 1985. She has also called in question, the Government order dated 03.05.2024 issued under Section 3(3) of the Act

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whereby the Detention Order has been confirmed for a period of one year.

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Learned counsel appearing for the Petitioner

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sought for the invalidation of these orders essentially arguing that: the detenue does not know reading & writing Kannada & English, although he knows speaking Kannada; that being the position, all the papers on which the impugned orders are framed ought to have been translated to Tamil which he knows reading & writing; the Detention Order refers to several bail orders secured by the detenue and copies thereof were not made available to him; the detenue has not been given legible copies of the orders/papers on which the Detention Order is structured; there is no allegation of the detenue violating the bail conditions in any of the matters and if there is violation, it is open to the concerned to seek rescinding of the bail; that being the position, the Detention Order is not justifiable. There is no contiguity/proximity between the alleged offences and the grounds projected in support of the Detention Order. In support of his submissions, he

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pressed into services certain Rulings of Apex Court and of a Coordinate Bench.

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Learned SPP appearing for the Respondents vehemently opposed the Petition controverting the submission made by the Petitioner’s counsel. He contended that the detenue knows all the three languages namely Tamil, Kannada & English; he was furnished with copies of all the documents that were fully legible and that

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he has understood the same; an avalanche of grave offences are pending trial before various courts; even a case relating to abduction/kidnapping of his first wife is also pending against him; the detenue had participated in the proceedings held by the Advisory Board and never he raised any such complaints; full particulars of bail orders are furnished and that these orders are secured by himself; his detention is eminently justified in the interest of law & order and public order; the detenue has been rowdy sheeted in Andersonpet Police Station, KGF on 15.11.2013 and he has not challenged the same. Learned SPP made available the proceedings of the Advisory Board

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with a request that the same are exclusively meant for eyes of the Court.

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Having heard the learned counsel for the parties and having perused the Petition Papers, we decline indulgence in the matter for the following reasons:

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(A) A THUMBNAIL DESCRIPTION OF 1985 ACT:

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a) This statute is a State Legislation. Its Preamble says that this Act intends ‘…to provide for preventive detention of bootleggers, drug-offenders, gamblers, goondas, [Immoral Traffic Offenders, Slum-Grabbers and Video or Audio pirates] for preventing their dangerous activities prejudicial to the maintenance of public order ’. Thrice it has been amended: Amending Act 22 of 1987, Amending Act 16 of 2001 and Amending Act 61 of 2013. Section 2 is the Dictionary Clause of the Act. The building block of the Act namely ‘ acting in any manner prejudicial to the maintenance of public order ’ is defined very extensively under clause (a). It has an Explanation for ‘ disruption of public order’ which includes an Act inter alia generating the feeling of insecurity among the general public or any section thereof. Clause (b) defines ‘bootlegger’ in a extensive way. Clause (e) defines ‘drug offender’; clause (f) defines ‘gambler’; clause (g) defines ‘goonda’; clause (h) defines Immoral Traffic Offender; clause (i) defines ‘slum grabber’ extensively; and clause

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(k) defines ‘video or audio pirate’. Other definitions are not significant to the case at hand.

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b) Section 3 vests power to make Detention Orders. Apparently, it is preventive detention and not punitive. Sub-section (1) vests that power in the State Government. Sub-section (2) vests the power to direct detention in the District Magistrate or Commissioner of Police. Proviso to sub-section (2) prescribes the initial period of detention which shall not exceed three months; however, State may extend it to one year ‘at any one time’. When District Magistrate or Commissioner of Police orders detention under sub-section (2), he has to report the same to the State Government forthwith along with the grounds on which such order is made. Such order shall remain in force for a period of twelve days unless the same is approved by the State Government.

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c) Section 4 provides for the execution of Detention Orders as if they are warrants of arrest issued under Cr.P.C., 1973. Section 5 vests power in the State Government to regulate certain aspects as to detention by making general or special order in the name of Delegated Legislation. Clause (a) says that such regulation may be as to place & conditions of detention. These conditions may include maintenance, discipline and punishment for breach of discipline. Clause (b) empowers the State Government to remove the detenue from one place to another. Section 6 is the sanctifying clause which immunes the Detention

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Orders made by the District Magistrate & Commissioner of Police from challenge only on the ground that the potential detenue or the place of his detention is outside the limits of their territorial jurisdiction. Section 6A is also a sanctifying clause which immunes challenge on the ground of vagueness, non-existent/not relevant facts, etc. Subclause (v) of clause (a) of this Section employs a strange provision that order of detention shall not be ‘invalid for any other reason whatsoever’. Such absolute immunity runs counter to the idea of Welfare State and constitutional freedoms. The draftsman appears to have erred here.

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d) Section 7 again reads Detention Orders as the arrest warrants when the potential detenue is absconding or concealing. The authority making the Detention Order will have powers under sections 82 to 86 of Cr.P.C. qua such absconders/concealers. Thus, proclamation, attachment, and auctioning of properties of such persons may be undertaken by the authority. It also provides for an appeal against such coercive measures when application for recalling the same is rejected. The Court of Session is the Appellate Authority. Sub-section (2) of this section also provides for coercive measures to be taken for securing the presence of the potential detenue. Where such measures are defeated/violated because of culpable act attributable to such person, he can be tried for the said offence and punished with imprisonment that may extend

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to one year or with fine or with both. This offence is made a cognizable offence under clause (c) of sub-section (2). Section 8 mandates disclosure of grounds of detention to the detenue within an outer limit of five days and provide him an opportunity of making a representation to the Government against the proposed action.

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e) Section 9 provides for constitution of Advisory Board by the Chief Justice of the High Court of Karnataka. It shall consist of a Sitting Judge of this Court as the Chairman and two serving or retired Judges of any High Court. The Board is accordingly constituted and all the three Judges are the serving Judges of this Court. Section 10 provides for reference to Advisory Board, within three weeks from the date the person is treated in terms of Detention Order. The reference should be accompanied by the grounds of detention, representation of the detenue if any and the report of the detaining authority. Section 11 prescribes the procedure & functions of the Board reads as under:

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“ Procedure of Advisory Board .-

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(1) The Advisory Board shall after considering the materials placed before it and, after calling for such further information as it may deem necessary from the State Government or from any person called for the purpose through the State Government or from the person concerned, and if, in any particular case, the Advisory Board considers it essential so to do or if the person concerned desire to be heard, after hearing him in person, submit its report to

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the State Government, within seven weeks from the date of detention of the person concerned.

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(2) The report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned.

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(3) When there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board.

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(4) The proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential.

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(5) Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter connected with the reference to the Advisory Board.”

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After the exercise, the Board shall report to the State Government within seven weeks of detention specifying its opinion as to there being sufficient cause for the detention. There is no indication in this provision that no personal hearing shall be given to the detenue despite request, however Sub-Section (5) excludes appearance of lawyers as a matter of right. The proceedings of the Board, its report accepting opinion are made confidential under Sub-Section (4).

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(f) Section 12 deals with the action to be taken upon report of Advisory Board. It vests discretion in the

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Government to confirm Detention Order and continue the detention. If the Board finds detention unjustifiable, the Government has no discretion to disobey the Board’s recommendation and therefore it has to revoke the same. That is how Sec.12 has been structured. Sec.13 prescribes maximum period of detention as confirmed by the Advisory Board u/s.12 shall not exceed 12 months reckoned from the date of detention. Section 14 vests power in the Government even otherwise to revoke or modify the Detention Order. It also provides for issuance of fresh Detention Orders. Even when no fresh facts have arisen after the revocation or expiry of the earlier Detention Order, another Detention Order can be issued for a period not exceeding twelve months reckoned from the date of detention made under the earlier Detention Order.

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(g) Section 15 provides for temporary release of the detenue by the State Government for any specified period subject to conditions. If these conditions are breached, such release may be rescinded. Furnishing of a bond with or without sureties can also be stipulated. Breach of conditions results into forfeiture of bond and payment of penalty. The released detenue shall revert to detention immediately after the expiry of release period. SubSection (4) makes the releasee liable to prosecution for the offence punishable with imprisonment upto two years, or with fine, or with both, when he does not revert.

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Section 16 enacts good faith protection to the Government & its officials. Section 17 pre-empts invocation of National Security Act, 1980 if detention order can be made under the 1985 Act. Section 18 provides for repeal of the Karnataka Ordinance 16 of 1984 which preceded the 1985 Act, and protects the action taken under the said Ordinance.

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B. COMPARATIVE LAW: PREVENTIVE DETENTION IN FOREIGN JURISDICTIONS:

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(a) Thomas Paine (1737-1809) a great British thinker in his famous work ‘Common Sense’ (1776) wrote:

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‘ Society is produced by our wants, and government by wickedness; the former promotes our happiness positively by uniting our affections, the latter negatively by restraining our vices. The one encourages intercourse, the other creates distinctions. The first is a patron, the last a punisher’.

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When the acts of wickedness of the unscrupulous few poses a potential threat to the peace & tranquility of the community, it becomes duty of the State constitutionally wedded to Welfare to devise preventive measures, lest others should suffer. In any civilized jurisdiction, private interest of an individual should yield to the public good. Absolute rights & privileges are unknown to matured jurisdictions. So also, absolute power of the Governments. As of necessity, statutes are enacted inter alia to take preventive measures by way of detention or the like so that the process thereunder becomes normative

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and that minimizes the abuse potential of authorities. It hardly needs to be mentioned that even preventive measures too have some amount of punitive elements.

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(b) Preventive Detention Laws of the kind do obtain even in matured foreign jurisdictions although in varying forms & substance:

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(i) American law eschews it except where legislatures and courts deem it necessary to prevent grave public harms. The law then tends to unapologetically countenance detention, but only to the extent necessary for preventing those harms. The American Supreme Court in HILTON vs BRAUNSKILL, 481 U.S. 770 (1987) has ruled that the Federal Courts have authority to stay the enlargement of a successful Habeas Corpus Petitioner where the presumption of releasability is overcome by showing the potential danger to the public that may be occasioned by such release. In a series of cases decided over the past four decades, the US Supreme Court has consistently held that laws providing for preventive detention do not violate constitutional guarantees, vide UNITED STATE vs SALERNO, 481 U.S. 739.

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(ii) In Australia, ordinarily individuals cannot be subjected to preventive detention beyond a particular period. However, many exceptions are recognized by the High Court of Australia which is apex court of the country vide FARDONA vs ATTORNEY GENERAL (QLd)-(2004)

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HCA46- 223 CLR 575 . The list of such exceptions is not treated as exhaustive.

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(iii) In 2001, Canada enacted Immigration and Refugee Protection Act which permits preventive detention on the ground of threat to national security. The Supreme Court of Canada in CHARCHARKAOUI vs CANADA, 2007 SCC 9 (Can) frowned on this. In response, Canadian Parliament has revised this statute.

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(iv) In United Kingdoms, under Section 226A of the Criminal Justice Act, 2003, the Secretary of State can continue detention of a person subject to reference & decision of the Parole Board. In the landmark case of SECRETARY OF THE STATE FOR THE HOME DEPARTMENT vs. E & ANOTHER , (2007) UKHL 47, House of Lords highlighted the limits of Governmental powers in relation to national security and human rights protection.

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(v) The Malaysian Constitution is to a great extent modeled on the lines of Constitution of India, although it does not have Directive Principles of State Policy. Malaysian Advocate of great repute, Mr. Gunaseelan writes that at least, there are three important legislations which provide for preventive detention viz, Prevention of Crime Act, 1959; Security Offences (Special Measures) Act, 2012; Prevention of Terrorism Act, 2015 and that the Federal Court of Malaysian in ROVIN JOTY a/I

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KODEESWARAN vs LEMBEAGA PENCEGAHAN

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JENAYAH, (2021) 2 MALAYAN LAW JOURNAL 822 , has upheld the validity of the prevention of Crime Act, 1959 which inter alia provides for preventive detention of persons engaged in terrorist activities, drug & human trafficking, smuggling & unlawful gaining, etc., These specified activities are the subject matter of 1985 Act of Karnataka.

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C. EXAMINATION & CONSIDERATION OF CONTENTIONS OF THE PARTIES:

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a) The first submission of Petitioner’s counsel that the detenue does not know reading & writing Kannada & English, cannot be accepted; reasons for this are not far to seek: his counsel on 30.05.2024 has filed a voluminous Paper Book running into 935 pages in support of his case. The Transfer Certificate (TC) dated 3.8.2021 specifically states that the Petitioner has studied Tamil & Kannada as optional subjects till 7^th std, although medium of instruction was Tamil. Secondly, the detenue in his own handwriting had addressed the letter dated 3.8.2021 for the grant of Transfer Certificate and this is in chaste English. Even his signature is also in English. It is not his case that some other person has scripted it in his name. Thirdly, when he participated in the Advisory Board proceedings, he never uttered one single word about the same; had he uttered any, the Committee Report would have mentioned about the same. Therefore, he knows

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reading & writing all the three languages namely Tamil, Kannada & English which figure in VIII Schedule to the Constitution of India. In any event, it was open to the detenue to seek the Tamil version of all the documents and the Order of Detention, which he did not do for reasons best known to him. Therefore, the Apex Court decision in POWANAMMAL vs. STATE OF TAMIL NADU , AIR 1999 SC 618, paras 10 & 15 and the Coordinate Bench decision in WPHC No.102/2018 between JAYAMMA vs. COMMISSIONER OF POLICE , disposed off on 8.3.2019, does not come to his aid.

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b) The second submission that the detenue was not furnished with legible copies of the documents and therefore, he is not in a position to fully comprehend the circumstances that led to making of the impugned orders, again is unsustainable. There is no reason to doubt the version of the Respondent-Authorities that detenue was supplied with legible copies of all the documents. In fact, the subject Paper Book filed by the Petitioner contains copies of the documents that are plainly legible. Despite turning the pages, learned counsel appearing for the Petitioner was not in a position to demonstrate which copies were illegible. Added, such a grievance was not raised before the Advisory Board when the detenue admittedly participated in the proceedings. Assuming these documents were illegible, what prevented him from seeking legible copies at the hands of Respondents is also

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not forthcoming. Therefore, this contention appears to have been taken only as an after thought and as a ritualistic ground sans any substantiation. In view of that, no milk can be drawn from the observations of the Coordinate Bench in JAYAMMA supra.

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c) The next submission of the Petitioner that the Respondents failed to furnish to the detenue the copies of bail orders secured by the detenue and that has prejudiced his case in structuring the defense at the stage of making the Detention Order, again does not merit acceptance. The Detention Order dated 4.4.2024 makes a reference to several bail orders giving full particulars of the case, such as, Courts which granted the bail, the dates of bail orders and the cases in which they are made. The detenue has not and could not dispute these orders inasmuch as, it is he who has secured them. Learned SPP is more than justified in his vehement submission that all these bail orders are only referred to in the Detention Order, as a part of chronology of events; they are not made the basis on which the Detention Order is founded. Added, despite repetitive submissions, the learned counsel appearing for the Petitioner could not demonstrate his assertion as to how non-furnishment of copies of bail orders has prejudiced the interest of the detenue. The requirement of furnishing the foundational material of the Detention Order arises under the principles of natural justice. In the absence of demonstrable prejudice, the arguable breach of

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these principles does not provide a justiceable ground vide S L KAPOOR vs. JAGMOHAN , AIR 1981 SC 136 .

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d) The reliance of Petitioner’s counsel on Apex Court decision in RUSHIKESH TANAJI BHOITE vs. STATE OF MAHARASHTRA, (2012) 2 SCC 72, does not come to the aid of detenue. In the said case, the authorities were under a wrong impression that the bail applications of the detenue therein were still pending when they were already allowed and he was admitted to regular bail with certain conditions. It is in that context, the Apex Court observed as under:

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“…the detaining authority was not even aware whether a bail application of the accused was pending when he passed the detention order, rather the detaining authority passed the detention order under the impression that no bail application of the accused was pending but in similar cases bail had been granted by the courts. We have already stated above that no details of the alleged similar cases has been given. Hence, the detention order in question cannot be sustained…"

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Apparently, what weighed with the court was the rank non-application of mind to a relevant factor when constitutional right to liberty of a citizen was at stake. It is a specific case of Respondents that the detenue has already been admitted to bail and those bail orders have been just referred to in the body of the Detention Order. Twice we asked the learned counsel for the Petitioner as to how the non-furnishing of these orders came in the way of

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he structuring the representation to the Government against the Order of Detention. Except repeating the above observation of the Apex Court, he did not utter one single word in answer. It hardly needs to be stated that a decision is an authority for a proposition laid down in the particular fact matrix of a case and not for all that which would logically follow from what has been so laid down vide QUINN vs. LEATHEM, (1901) A.C.495. Rulings cannot be cited like mantras, regardless of their applicability to the case. For the same reason, the Coordinate Bench decision in R.LATHA vs. T.MADIYAL , 2000 (5) Kar.L.J. 304 (DB) would not come to the assistance of the Petitioner.

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(e) The next submission of Petitioner’s counsel that the detenue has secured bails in all the pending criminal cases subject to stringent conditions and therefore, the Detention Order could not have been made, is liable to be rejected for more than one reason: firstly, as many as 45 criminal cases are pending against the detenue; he is acquitted in a murder case giving benefit of doubt, is also true; it is not the case of Petitioner that it was honorable acquittal. There was one case of kidnapping/abduction in Crime No.29/2011 filed by none other than his first wife Smt.V.Bhanupriya and the detenue has been acquitted. Here again, it is not a case of honorable acquittal. There are two attempt to murder cases, one robbery case, 32 theft cases, one case of attack on public servant & 4 cases

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of hurt. All they are spread over between 2008 and 2024. Andersonpet Police Station (KGF), Marikuppan Police Station (KGF), Bangarpet Police Station (KGF), Kotthanur Police Station (Bengaluru), Avalahalli Police Station (Bengaluru) & K.R.Puram Police Station (Bengaluru), have been investigating/prosecuting these cases. Full particulars are given in the Statement of Objections. It is also true that there were other cases in which he has been acquitted. None of them is shown to be of honorable acquittal.

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f) It is the primary duty of State as the guardian to protect the lives & liberties of the subjects; this duty has become onerous nowadays, cannot be disputed. Crime rate is shooting up as the official statistics furnished by the National Crime Records Bureau, Bengaluru, show. Women & children and aged & ailing have become the vulnerable sections at the hands of hooligans. The fear of law is diminishing; sensible sections of society live in anxiety & insecurity. Higher level of vigilance by the Administration has become inevitable. As of necessity, a larger leverage has to be conceded to it for ensuring peace & tranquility in the society. Measures like preventive detention are aimed at this. The criminal antecedents of detenue galore on record and they lend credence to the contention of learned SPP that his detention is inevitably ordered after exploring all alternatives. The authorities, who have field knowledge, form the opinion as to whether detention of the kind is

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warranted, keeping in view a host of factors. The Detention Order has been examined by the State Government. Even the Advisory Board comprising of three serving Judges of this Court having looked into the matter, has chosen not to recommend for the revocation of Detention Order. Essentially, matters like this belong to the domain of Statutory Authorities, and Courts cannot run a race of opinions with the Executive in due deference to the doctrine of separation of powers which is recognized as a Basic Feature of the Constitution, vide KESAVANANDA BHARATI vs. STATE OF KERALA , AIR 1973 SC 1461 .

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g) The last contention of the Petitioner’s counsel that in all the pending matters, the detenue has been admitted to bail subject to complying with conditions and there is no complaint of violation of bail conditions and therefore the Detention Order is not explicable, appears to be too farfetched an argument. As already mentioned above, the criminal antecedents of the detenue abound on record. The number of criminal cases, the nature of criminality, the kind of victims chosen by the detenue all would leave no reasonable mind unbaffled. Admittedly he is a Rowdy Sheeter. None other than his first was kidnapped/abducted by him. He is facing a plethora of criminal cases, is not in dispute. Due to mounting arrears, the investigation/trial/disposal of criminal cases would take years if not decades. Such has become the Administration of Criminal Justice. Less said is better. Ordinarily, for

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offences for which prescribed punishment is not death, nor life imprisonment, offenders secure bail by raising the slogan “ bail is a rule and jail is an exception ” vide STATE OF RAJASTHAN vs. BALCHAND @ BALIAY , AIR 1977 SC 2447 . Social conditions have undergone catastrophic change and people are living in different times. The principles & maxims of law are not immutable; they have elements of relativity; their relevance is ‘ time & circumstance bound ’. Therefore, the same cannot be invoked mindlessly for granting reprieve disregarding its consequences on the larger interest of the community.

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h) Added to the above, the considerations for grant of bail are much different from those for making orders of preventive detention, although in both the cases; the constitutional guarantees figure as a dominant factor in favour of the citizen. But no guarantee is absolute. The Apex Court in VIJAY NARAIN SINGH vs. STATE OF BIHAR, (1984) 3 SCC 14 observed:

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“ …When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinizing the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court… ”

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These observations also lend support to the view that the Court has to exercise some restraint while undertaking the scrutiny of preventive detention orders made under the 1985 Act. If it were to be a punitive order, different

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considerations would have weighed with the Court. The immunity clause enacted in Section 6A of the Act which masks certain arguable irregularities in the Orders of Detention also supports this stand, in the absence of any challenge to the same. In a system governed by rule of law, there cannot be an island of immunity from judicial scrutiny, is also true.

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i) Detention orders of the kind put the citizen to prejudice, cannot be much disputed. However, they are an exceptional price which a citizen pays for being a member of civilized society, for conditions applicable to him and not applicable to the rest. The avalanche of criminal cases which are still pending, many after investigation and the rest in pre-Charge Sheet stage repel the contention that the detenue is absolutely innocuous. After all, it is not a case of indefinite detention. The Act itself prescribes a maximum period of one year as is specified in the impugned orders. Section 14 provides for the revocation or modification of the Detention Order by the State Government. The detenue can tap this provision. He can also seek temporary release from detention or for the curtailment of the period of detention as provided under Section 15, if grounds do exist therefor.

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In the above circumstances, this Petition being devoid of merits, is liable to be and accordingly dismissed, costs having been made easy.

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