Allowed

Syed Mansoor v. Commissioner of Police

Karnataka HC5 Sept 2024WPHC/73/2024

Case brief

AI extract

What is this about?

Habeas corpus challenge to a preventive detention order under the Goonda Act passed against the petitioner's son. The Court found an unexplained delay in disposing of the detenue's representation, absence of cogent reasons for detaining him despite no realistic prospect of bail, and failure to show impact on public order.

What did the court decide?

Detention order dated 08.11.2023, confirmation order dated 17.11.2023 and extension order dated 18.12.2023 quashed; respondents directed to set the detenue at liberty forthwith.

Syed Mansoor Vs Commissioner of Police — Constitutional and Fundamental Rights | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^TH DAY OF SEPTEMBER, 2024

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PRESENT

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THE HON'BLE MR JUSTICE V KAMESWAR RAO

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AND

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THE HON'BLE MR JUSTICE RAJESH RAI K

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WPHC NO. 73 OF 2024

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BETWEEN

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SYED MANSOOR AGED ABOUT 60 YEARS, SON OF SYED GHOUSE PEER, RESIDING AT NO.104, 1^ST FLOOR, ALPINE SQUARE, DODDANAGAMANGALA, ELECTRONICS CITY, POST OFFICE, ELECTRONICS CITY, KARNATAKA-560 100.

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...PETITIONER

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(BY SRI. ROHAN VEERANNA TIGADI, ADVOCATE)

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AND

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1 . COMMISSIONER OF POLICE BENGALURU, NO.1, INFANTRY ROAD, BENGALURU 560 001.

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2 . STATE OF KARNATAKA VIDHANA SOUDHA, AMBEDKAR VEEDHI, SAMPANGI NAGARA, BENGALURU,

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KARNATAKA-560 001. (REPRESENTED BY SECRETARY LAW & ORDER) DEPARTMENT OF HOME ADMINISTRATION.

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3 . SENIOR SUPERINTENDENT CENTRAL PRISON, BENGALURU, BENGALURU-560 001.

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…RESPONDENTS

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(BY SRI. B.A.BELLIAPPA, SPP-1 FOR SRI. ANOOP KUMAR, 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 SYED SHABEER IS ILLEGAL AND SET HIM AT LIBERTY FORTHWITH AFTER QUASHING THE ORDER BEARING REFERENCE NO.12/CRM(4)/DTN/2023 DATED 08.11.2023 (ANNEXURE-A) PASSED BY THE 1ST RESPONDENT UNDER SECTION 3(1) OF THE GOONDA ACT, THE ORDER BEARING REFERENCE NUMBER HD 487 SST 2023 DATED 17.11.2023 (ANNEXURE-B) PASSED BY THE 2ND RESPONDENT UNDER SECTION 3(3) OF THE GOONDA ACT AND ORDER BEARING REFERENCE NUMBER HD 487 SST 2023 DATED 18.12.2023 (ANNEXURE-C) PASSED BY THE 2ND RESPONDENT UNDER SECTION 13 OF THE GOONDA ACT.

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THIS WPHC HAVING BEEN RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, RAJESH RAI.K, J., MADE THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE V KAMESWAR RAO and HON'BLE MR JUSTICE RAJESH RAI K

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CAV ORDER

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(PER: HON'BLE MR JUSTICE RAJESH RAI K)

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This writ petition takes exception to the order of detention dated 08.11.2023 passed by respondent No.1 bearing No.12/CRM (4)/DTN/2023, subsequent confirmation order dated 17.11.2023 bearing No.HD 487 SST 2023 and extension order dated 18.12.2023 bearing No.HD 487 SST 2023 passed by respondent No.2.

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2. Petitioner, who is the father of detenue Sri Syed

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Shabeer, is knocking the doors of the writ Court, seeking relief in the nature of Habeas corpus, aggrieved by the orders referred supra.

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The facts-in-brief that are apposite for consideration

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of the case on hand, as borne out from the pleadings are as follows:-

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The son of the petitioner namely Sri Syed Shabeer is alleged to be a habitual offender and involved in criminal activities in and around Bengaluru City since 2017 and against whom, a rowdy sheet was also opened vide order dated

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27.09.2017 in Koramangala Police Station; he allegedly committed 15 criminal cases from the year 2017 to 2023 and he was declared threat to the society. As such, the Commissioner of Police, Bengaluru i.e., respondent No.1, based on the information gathered by the concerned police, passed an order of detention bearing No.12/CRM(4)/DTN/2023 against the detenue on 08.11.2023 under Section 3(1) of the Karnataka Prevention of Dangerous Activities of Bootleggers, DrugOffenders, Gamblers, Goondas, [Immoral Traffic Offenders, Slum-Grabbers And Video Or Audio Pirates] Act, 1985 (for short ‘Goonda Act’). The order of detention came to be executed and communicated to the detenue on the same day i.e., 08.11.2023 at the Central Prison, Bengaluru since the detenue was in judicial custody at Central prison, Bengaluru in connection with some criminal cases. Pursuantly, the said order was forwarded to respondent No.2 i.e., the State Government for confirmation and the State Government, after considering the materials provided, was pleased to confirm the detention order vide order bearing No.HD 487 SST 2023 dated 17.11.2023 under Section 3(3) of the Goonda Act. Subsequently, the confirmation order was

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communicated to the detenue on the same day. Being aggrieved by the detention order and confirmation order, the detenue submitted a representation to the Advisory Board on 21.11.2023 through the Jail Authority, which was received by respondent No.2 on 24.11.2023. Pending consideration of the said representation, the detention order and the confirmation order were placed before the Advisory Board on 28.11.2023 along with the representation of the detenue. Hearing was fixed before the Advisory Board on 07.12.2023 and the detenue was produced before the Advisory Board and the Advisory Board, after hearing both the detenue and respondent-State, was pleased to reject the representation filed by the deteneu and uphold the detention order stating that there are sufficient grounds for detention of the detenue under the Goonda Act. Thereafter, respondent No.2 also rejected the representation of the detenue dated 21.11.2023 vide order dated 07.12.2023. Subsequently, based on the recommendation of the Advisory Board, respondent No.2 passed the order bearing No.HD 487 SST 2023 dated 18.12.2023 by extending the detention order of the detenue for a period of one year from 08.11.2023. The said order also

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communicated to the detenue on the same day. It is in this background, pleading, violation of fundamental rights enshrined under Article 22(5) of the Constitution of India, the petitioner has approached this Court.

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We have heard Sri Rohan Veeranna Tigadi, learned counsel for the petitioner and Sri B.A.Belliappa, learned SPP-I for Sri Anoop Kumar, learned HCGP for the respondents.

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It is the primary contention of the learned counsel

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for the petitioner that the State Government/respondent No.2 has failed to consider and communicate the outcome of the representation submitted by the detenue dated 21.11.2023, at the earliest point of time. According to the counsel, the representation of the detenue was received by respondent No.2 on 24.11.2023. However, the same was considered only on 07.12.2023. There is an inordinate and unexplained delay of 16 days in considering the representation of the detenue by respondent No.2. Nevertheless, there is no reason set out for such delay in transmission of the representation of the detenue dated 21.11.2023 to respondent No.2 till 24.11.2023 by the

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police. Even after receiving the representation, respondent No.2 failed to consider the same for a period of 15 days. As such, any inordinate and unexplained delay in considering the representation vitiates the detention.

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In this regard, learned counsel for the petitioner by relying on the judgments passed by the Hon'ble Apex Court in the case of Rashid Kapadia v. Medha Gadgil and others reported in (2012) 11 SCC 745, Rajammal vs. State of Tamil Nadu and another reported in (1999) 1 SCC 417 and Sumaiya vs. The Secretary to Government reported in 2007 SCC OnLine Madras 700 would submit that the delay of even three to four days in considering the representation of the detenue shall be considered in a very serious manner since the life and liberty of the detenue is involved as he was under illegal detention. In other words, he would submit that the reason for the inordinate delay has to be explained by the Authority properly on day to day basis. But in the case on hand, on perusal of the endorsement issued by respondent No.2 dated 07.12.2023, there is no such reason assigned by respondent

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No.2 for the inordinate delay in considering the representation. Hence, he would submit that the detention order is liable to be quashed on this ground alone.

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7. He further vehemence his submission that the detention order passed by respondent No.1 is bad-in-law for the reason that the subjective satisfaction attained by the Authority while passing the detention order that the actions of the detenue are likely to adversely affect the public order are based on no material on record. According to learned counsel, the Authorities totally erred in stating that the detenue is likely to be released from jail in the cases pending against him. As a matter of fact, there is no possibility of detenue being released in the cases pending against him, since out of three cases pending against the detenue, though in Cr.No.5/2023, he applied for bail in Crl.Misc.9061/2023 before the Sessions Court, the same was dismissed and against which, he had approached this Court in Crl.P.No.10324/2023 and the same was withdrawn by the detenue. Besides, the detenue was yet to be enlarged on bail in Cr.No.306/2023 and Cr.No.262/2022. Such being the position,

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there is no possibility of detenue being released on bail. He would further contend that the Detaining Authority, in the order of detention, should disclose the cogent materials based on which he has reached subjective satisfaction that the detenue is

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likely to be released on bail and on such release, in all probability, he will indulge in the acts prejudicial to the public order. In the detention order, absolutely no such reasoning or narration is forthcoming.

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8. Learned counsel for the petitioner, by relying on law laid down by the Hon'ble Apex Court in the cases of Kamrunnissa vs. Union of India reported in 1999 (1) SCC 128 and Union of India and another vs. Dimple Happy Dhakad reported in (2019) 20 SCC 609, would submit that, if the Detaining Authority failed to explain the cogent reasons, in such eventuality, the detention order vitiates. He would also submit that in the case of A meena Begum v. State of Telangana reported in (2023) 9 SCC 587 , the law is very much settled that there is a difference between the 'public order' and 'law and order' while considering the cases filed against the

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detenue. On perusal of the alleged acts committed by the detenue relied in the detention order, the same does not amount to public order as held in A meena Begum's case. As such, on this count also, the detention order has to be set aside. With these submissions, he prays to allow the writ petition.

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9 . Refuting the above submission, learned SPP-I Sri B.A.Belliappa for the respondents has filed his statement of objection, 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 is involved in offences like murder, attempt to murder, dacoit, theft, offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 etc., Further, the police have already opened a rowdy sheet against him as early as in the year 2017. The acts of the detenue totally amount to effecting the public order. Hence, the impugned detention order has been passed and the same has withstood the test of legality before the Advisory Board.

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Learned SPP would also contend that there is no

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such inordinate delay in considering the representation of the detenue. However, if any such delay was caused, the same is explained by the respondent-Authority that the detenue submitted his representation to the Advisory Board on 21.11.2023 through the Jail Superintendent and the same was forwarded to Advisory Board on 22.11.2023. Further, on 24.11.2023, the said representation was forwarded to respondent No.2. On 28.11.2023, the Government forwarded the representation to the Advisory Board. In the meantime, the Government sought the details i.e., the remarks and reports pertaining to the antecedents of the detenue from Koramangala Police. The said Police sent the report on 29.11.2023, which was received by the Government on 30.11.2023. Thereafter, the Government also sought explanation from the Deputy Commissioner of Police, South-East Division which was received on 06.12.2023. Considering all those reports, the Government rejected the representation of the detenue on 07.12.2023. As such, the delay is caused while processing the report pertaining to the detenue. Even otherwise, there is no such specific

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provision or law which contemplates that the Government should consider the representation of the detenue within a stipulated time.

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By relying on the judgment passed by the Hon'ble Apex Court in the case of D.M.Nagaraj vs. Government of Karnataka reported in (2011) 10 SCC 215 , learned SPP would submit that the Hon'ble Apex Court in the above judgment by relying the dictum in the case of K.M.Abdulla Kunhi vs. Union of India reported in (1991) 1 SCC 476 in paragraph No.11 held that the Authority has no constitutional duty to consider the representation made by the detenue before the detention order of the confirmation order. In other words, the Competent Authority can consider the representation only after the order of confirmation and as such, the contention raised by the petitioner as if there was delay in consideration of the representation is baseless and liable to be rejected.

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Learned SPP would also contend that the second limb

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of the argument advanced by the learned counsel for the petitioner also does not holds good for the reason that the

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detenue has a notorious rowdy history and he is a menace to Bengaluru City and his criminal activities cannot be curtailed expect the action under the Goonda Act. The Authorities have rightly reached the subjective satisfaction that there is every possibility if the detenue being released on bail, he would continue his illegal activities. Though the detenue has not approached the trial Court or this Court for grant of bail in connection with three criminal cases pending against him, the same is for the reason that he is under detention in view of the impugned order challenged in this writ petition. According to learned SPP, on careful perusal of the antecedents of the detenue, absolutely there is no such possibility of reformative measure from his side and hence, the Authorities have rightly reached the subjective satisfaction of invoking the Goonda Act against him.

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By emphasizing the judgment passed by the Hon'ble Apex Court in the case of Dimple Happy Dhakad 's case referred supra, he would submit that in the detention order, if the Detaining Authority has not specifically recorded that 'the

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detenue is likely to be released', the same itself cannot be construed as the Detaining Authority has not applied its mind. Per contra , once the Detaining Authority has clearly recorded the antecedents of the detenue, the same can be considered as a subjective satisfaction of the Authority that in case of release of the detenue, he would continue to indulge in prejudicial activities.

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Learned SPP would also draw our attention to the law laid down by the Hon'ble Apex Court in the case of Alijan Mian vs. District Magistrate, Dhanbad and others reported in (1983) 4 SCC 301 that the detention order would not become invalid merely because the detenue was in jail at the time of passing the order. Pendency of criminal proceedings against the detenue is not a bar to pass detention order on the basis of proper subjective satisfaction of Detaining Authority. With these submissions, he prays to dismiss the writ petition.

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Having heard the learned counsel for the parties, the only point that would arise for our consideration is:

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"Whether the detention order passed by respondent No.1 dated 08.11.2023 bearing No.12/CRM(4)/DTN/2023 and the confirmation order dated 17.11.2023 passed by respondent No.2 bearing No.HD 487 SST 2023 and the subsequent extension order passed by respondent No.2 dated 18.12.2023 in No.HD 487 SST 2023 under the provisions of Sections 3(1), 3(3) and 13 of the Goonda Act are sustainable under law?"

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In the present case, the order of detention was passed on 08.11.2023 by respondent No.1, which came to be confirmed by respondent No.2 on 17.11.2023. The documents detailing the grounds for detention was communicated to the detenue on 08.11.2023 itself. The detenue makes a representation to the Government and the Advisory Board on 21.11.2023. The said representation was rejected by respondent No.2 on 07.12.2023.

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Now to address the first limb of argument of the learned counsel for the petitioner that there was an inordinate delay in considering the representation filed by the detenue, we find it relevant to refer the law laid down by the Co-ordinate

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Bench of this Court in Ashok Kumar vs. State of Karnataka

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reported in 1983 SCC OnLine Kar 37, wherein in paragraph No.6 held as under:-

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“6. One of the twin rights under Article 22(5) of the Constitution of the person sought to be detained is the right to be enabled to make, at the earliest opportunity, a representation against the order of detention. As concomitant of this right, the detenu has, by necessary implication, the right to have his representation considered and disposed of most expeditiously. The detaining authority is under a corresponding constitutional obligation to consider and dispose of the representation at the earliest. Any unreasonable or unexplained delay violates the constitutional pledge and by itself, without more, vitiates the order of the detention.”

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(Emphasis supplied by us)

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Further, another Co-ordinate Bench of this Court headed by then Chief Justice, in Kenneth Jideofor vs. Union

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of India reported in 2020 SCC OnLine Kar 525 , wherein, paragraph 19 it held as under:-

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“19. Thus, the only conclusion which can be drawn is that there is an inordinate delay in considering the representations made by the petitioner to the Specially Empowered Officer as 13 well as to the Central Government. In fact, there are no efforts made to explain the reasons for such inordinate delay. Hence, there is a complete violation of rights of the petitioner under Article 22 of the Constitution of India and in particular Clause (5) thereof. On account of the inordinate delay in

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deciding the representations made by the petitioner, the continuation of impugned order of preventive detention is vitiated and therefore the impugned order of detention will have to be set-aside.”

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(Emphasis supplied by us)

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The co-ordinate Bench of this Court in Rizwan

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Pasha vs. Commissioner of Police and others, reported in 2021 SCC OnLine Kar 15707 , wherein, paragraph Nos.46 and 47 of the Order speaks as under:-

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“46. Although, the aforesaid observations are in the context of considering a representation of a detenue prior to the matter being considered by the Advisory Board, nevertheless, the import of the said observations would even apply to a representation made by a detenue post confirmation order mutatis mutandis. This would mean that the State, in exercise of its power coupled with duty, under Section 14 of the Act, must consider the representation expeditiously and independently of the report of the Advisory Board in order to ascertain, whether, there is any changed circumstances or a reason which has emerged subsequent to the confirmatory order which would call for the detention order to be revoked or modified.

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47. Any delay in disposing of the representation of the detenue would vitiate further detention despite the order of detention being confirmed as per Section 12 read with Section 13 of the Act. We say so because there is an obligation on the part of the State to consider the representation made post-confirmation of the detention, in light of Section 14 of the Act. Thus, any delay in doing so,

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must be adequately explained as the obligation/duty cast on the State Government under Section 14 of the Act is couched in the context of Article 21 of the Constitution. Therefore, such a representation must also receive immediate attention and the same must be considered as expeditiously as possible or otherwise the delay would cause prejudice to the detenue. Even though the Section 14 does not prescribe any time limit to consider and dispose of the representation, it must be done at the earliest possible time so as to avoid any prejudice being caused to the detenue, which would be an infraction of Article 21 of the Constitution.”

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(Emphasis supplied by us)

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20. Further, the Hon'ble Apex Court in the case of

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Rashid Kapadia referred supra, held in paragraph 13 as under:

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"13. It is well settled that the right of a person, who is preventively detained, to make a representation and have it considered by the authority concerned as expeditiously as possible, is a constitutional right under Article 22(5). Any unreasonable and unexplainable delay in considering the representation is held to be fatal to the continued detention of the detenu. The proposition is too well settled in a long line of decisions of this Court. We do not think it necessary to examine the authorities on this aspect, except to take note of a couple of judgments where the principle is discussed in detail. They are: Mohinuddin v. District Magistrate, Beed and Harshala Santosh Patil v. State of Maharashtra. "

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The Hon'ble Apex Court even in the case of

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Rajammal referred supra also held that if there is a delay in disposal of the representation by the appropriate Authority/Government, it is an obligation on the part of the Authority concerned to explain the delay by offering justifiable reasons. Failing which, it is a ground to quash the detention order.

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From the perusal of the above cited decisions, it is now settled that the representation made by the detenue against the detention order has to be considered by the Authority without any delay and if such delay is caused, then the same shall be explained with cogent reasons. In case of failure to do so, then the detention order passed would be in the teeth of constitutional mandate as enshrined under Articles 21 and 22 of Constitution of India.

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In the case on hand, as stated supra, respondent No.2 rejected the representation of the detenue on 07.12.2023 i.e., after lapse of 15 days. The reason assigned by respondent No.2 for the said inordinate delay was, they obtained clarification

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and report from the jurisdictional police so also from the Deputy Commissioner of Police and during that process, the delay was caused. Since we are dealing with the aspect of right and liberty of the detenue enshrined under Articles 21 and 22 of Constitution of India, it is the bounden duty of the respondentAuthority to consider the representation of the detenue on top priority without there being any delay. The report from the concerned police station or from the Deputy Commissioner of Police could have been obtained within a reasonable time since both the offices have situated within the jurisdiction of Bengaluru city. Even otherwise, those information could be gathered through online. In such circumstances, we are unable to accept the contention raised by the learned SPP for the delay while considering the representation.

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Learned SPP alternatively submitted that there is no

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such provision under the Goonda Act which mandates the respondents to consider the representation within a time bound manner and there is no constitutional mandate under Clause (5) of Article 22, much less any statutory requirement to consider

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the representation before confirming the order of the detention, and in the case on hand, the representation of the detenue was considered by the Government after consideration of the representation by the Advisory Board.

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However, the Hon'ble Apex Court in the case of Smt. Gracy vs. State of Kerala and another reported in (1991) 2 SCC 1 held that the obligation of the Government to consider the representation is different and the same is in addition to the obligation of the Advisory Board to consider it and at the time of hearing the reference before giving its opinion to the Government, consideration of the representation by the Government has to be uninfluenced by the view of the Advisory Board. Otherwise, the detenue's right to have the representation considered by the government under Article 22(5) is independent of consideration of the detenue's case and his representation by the Advisory Board.

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Thus, the submission of learned SPP may not be proper that the delay in considering the representation of the detenue was caused for the reason that the entire file/record

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pertaining to the detention order was before the Advisory Board and the representation of the detenue was also before the Advisory Board. As a matter of fact, respondent No.2 rejected the representation of the deteneu on 07.12.2023 and the Advisory Board confirmed the order of detention on 08.12.2023. Thus, it is clear that respondent No.2 considered the representation of the detenue independently and the delay was not caused for the reason that the records were before the Advisory Board.

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With the above discussion, we are constrained to hold the first limb of the argument advanced by the learned counsel for the petitioner in favour of the detenue.

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In address to the second limb of the arguments advanced by the learned counsel for the petitioner that the satisfaction of the Detaining Authority that the detenue is likely to be released from jail is concerned, it is settled law that an order of detention can validly be passed against the person if,

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(1) Detaining authority is aware of the fact that the detenue is in custody;

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(2) Detaining authority has reason to believe on the basis of reliable material placed before him that there is a 'real possibility' of the person being released on bail;

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1. On being so released, the detenue in all probability indulge in acts prejudicial to the public order.

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In the case on hand, the detenue was in judicial custody at the time of invoking the Goonda Act by the respondent-Authority. He is in custody in connection with three criminal cases i.e., in Cr.Nos.5/2023, 306/2023 and 262/2023. In all these cases, he has not been granted bail. Nevertheless, in Cr.No.5/2023, his bail application was rejected by the Sessions Court in Crl.Misc.No.9061/2023. Against which, he has approached this Court in Crl.P.No.10324/2023 and later, the same was withdrawn. As far as the other two crimes are concerned, the detenue has not filed any bail application either before the Sessions Court or before this Court. Such being the scenario, there was no such possibility of detenue being released on bail at the time of passing the detention order. As a matter

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of fact, as on today i.e., after lapse of ten months from the date of detention order, still the detenue is not enlarged on bail in connection with the above three criminal cases, which are pending against him. The proximity of the offence committed by the detenue and the detention order was about 3 months i.e., the last offence committed by the detenue was on 17.08.2023 and the detention order was passed on 08.11.2023. Hence, on this count also, it cannot be presumed that, in case, the detenue enlarged on bail, then in all probability, he will indulge in the acts prejudicial to the public order. Hence, in our considered view, the subjective satisfaction of the Authority to invoke the provision of Goonda Act is not satisfactorily explained in the case on hand.

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30. The Hon'ble Apex Court in the case of Kamrunnissa

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referred supra, in paragraph 13, held as under:

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"13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that

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on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher court. What this Court stated in the case of Ramesh Yadav [(1985) 4 SCC 232 : 1985 SCC (Cri) 514] was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. "

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Further, the Hon'ble Apex Court in the case of

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Dimple Happy Dhakad referred supra, in paragraph 33, held as under:

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"33. It is well settled that the order of detention can be validly passed against a person in custody and for that purpose, it is necessary that the grounds of detention must show that the detaining authority was aware of the fact that the detenu was already in custody. The detaining authority must be further satisfied that the detenu is likely to be released from custody and the nature of activities of the detenu 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.

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On careful perusal of the law laid down by the

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Hon'ble Apex Court in the above judgments, it is clear that the

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subjective satisfaction of the Authority while passing the detention order must be with cogent reasons that in all probability, if the detenue is released, then he would indulge in the acts prejudicial to the public order. A detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essential criminal case and under the ordinary law.

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However, in the case on hand, on meticulous reading of the detention order, respondent No.1 failed to explain any cogent reasons for the subjective satisfaction of the Authorities as argued by learned SPP. Hence, we are also constrained to hold the second limb of the argument advanced by the learned counsel for the petitioner in favour of the detenue.

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Nevertheless, the Hon'ble Apex Court in the case of Ameena Begum referred supra 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

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and order leading to disorder is thus not necessarily sufficient to invoke the provision of the Act. Further, for an act to qualify as a disturbance to public 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.

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Applying these principles to the facts and circumstances of the case on hand, though the detenue involved in 15 criminal cases from the year 2017 to 2023, on perusal of the summary of those cases mentioned in the detention order, there is no such activity of the detentue impacted the broader community at large.

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Having assumed the primary and secondary contentions of the learned counsel for the petitioner in favour of the detenue and on overall consideration of the facts and circumstances of the case, we are of the opinion that in view of the delay in considering the representation by respondent No.2 so also lack of cogent reasons in the detention order for the subjective satisfaction of the Authorities to invoke Goonda Act

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against the detenue and finally the detention order does not pass the test of guidelines issued by the Hon'ble Apex Court in the case of Ameena Begum referred supra, the detention order invoked against the detenue under Goonda Act on 08.11.2023

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and the subsequent orders are liable to be quashed. 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. 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 hold the above raised point in favour of the detenue i.e., in negative and proceed to pass the following:

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ORDER

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i. The Writ Petition is allowed .

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ii. Impugned detention order passed by respondent No.1 bearing

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No.12/CRM(4)/DTN/2023 dated 08.11.2023, consequent confirmation order bearing No.HD 487 SST 2023 dated 17.11.2023 and subsequent extension order passed by respondent No.2 bearing No.HD 487 SST 2023 dated 18.12.2023 stand quashed. Consequently, the respondents are directed to set the detenue at liberty, forthwith.

¶144

iii. However, Registry is directed to communicate this Order to the respondents as well as the Jail Authorities to release the detenue forthwith, in case, he is not required in any other cases.

¶145

No order as to Costs.

¶146

Sd/(V KAMESWAR RAO) JUDGE

¶147

Sd/(RAJESH RAI K) JUDGE

¶148

Syed Mansoor v. Commissioner of Police

Case brief

What is this about?

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Syed Mansoor v. Commissioner of Police

Case brief

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