(Prayer: This Writ Petition(HC) is filed under Articles 226 and 227 of the Constitution of India praying to issue a Writ in the Nature of Habeas Corpus declaring the detention of Giddappa @ Lambu Giddappa S/o Late Mahadevappa by Orders Dated 15.07.2016 (Annexures A and B in English and Kannada) passed by Respondent No.3 in No.MAG(1).CR.24/16-17/58952 and the Order of approval Dated 20.07.2016 (Annexure-E) passed by Respondent No.2 in No.HD 278 SST 2016 and the order of Confirmation Dated 17.08.2016 (Annexure-F) passed by Respondent No.2 in No.HD 278 SST 2016 as illegal and Void Ab-Initio and to issue a Writ in the Nature of Mandamus directing the Respondents to release the detenu by name Giddappa @ Lambu Giddappa S/o late Mahadevappa.)
H.G. Ramesh, J.
1. Whether a second order of detention passed under 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 ('the Act' for short), by relying on fresh grounds arising out of facts that happened subsequent to quashing of an earlier order of detention and also by relying on the grounds relied on for passing the earlier order of detention, is sustainable in law? This is the question that requires to be determined in this writ petition.
2. In this petition, petitioner, who is the mother of one Giddappa @ Lambu Giddappa ('the detenu'), is challenging two preliminary orders of detention dated 15.07.2016 (Annexure-A) and 20.07.2016 (Annexure-E) passed under Section 3 of the Act, and the order of confirmation dated 17.08.2016 (Annexure-F) passed under Sections 12(1) and 13 of the Act whereby the aforesaid order of detention dated 15.07.2016 is confirmed and detention of the detenu is continued in Central Prison, Bellary, for a period of twelve months from 15.07.2016. The aforesaid order of confirmation dated 17.08.2016 was passed after receiving the report of the Advisory Board which stated that there was sufficient cause for detention of the detenu.
Hereinafter, the aforesaid three orders of detention are referred to as 'the impugned order of detention'.
3. It is relevant to state that the Act provides 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.
4. The aforesaid detention orders are made in exercise of the powers under the provisions of the Act, to prevent the detenu, who is stated to be a gambler, from acting in any manner prejudicial to the maintenance of public order.
5. We have heard Sri K.N.Jayaprakash, learned counsel appearing for the petitioner and Sri D.Nagaraj, learned Additional Government Advocate appearing for the respondents and perused the record.
6. The State has resisted this petition by filing statement of objections dated 20.09.2016. An affidavit dated 04.10.2016 is also filed stating that the detenu's representation dated 27.07.2016 has been considered by the Advisory Board. The case of the State is that the detenu is a gambler as defined under Section 2(f) of the Act and he is the main organizer of "Matka" gambling in Shikaripura Town and surrounding areas, which is affecting poor people who indulge in "Matka" with the hope of getting prize money. It is difficult to prevent his "Matka" gambling activities under normal laws. Hence, his preventive detention.
7. It is relevant to state that this Court by order dated 07.05.2015 in W.P.(HC) No.64/2015 had earlier quashed two preliminary orders of detention dated 11.04.2015 and 20.04.2015 passed against the detenu on the sole ground that the detenu was denied of the right of representation to the detaining authority. Hereinafter, these two earlier orders are referred to as 'the earlier order of detention'.
8. Learned counsel for the petitioner contended that the impugned order of detention being a second order of detention is not permissible under the Act. According to the learned Counsel, a second detention order is violative of Section 3 of the Act. He submitted that Section 3 of the Act contemplates passing of 'an order' which means only one order. Further, he contended that the impugned order is violative of Section 14(2) of the Act. In support of the writ petition, he relied on the following decisions of the Supreme Court:
i) Ibrahim Bachu Bafan v. State of Gujarat [AIR 1985 SC 697]
ii) C.B.Kahar v. N.L.Kalna [AIR 1989 SC 1234]
iii) Jahangirkhan v. Police Commr., Ahmedabad [AIR 1989 SC 1812]
iv) Abdul Latif v. B.K.Jha [AIR 1987 SC 725]
v) Hadibandhu Das v. Dist. Magistrate, Cuttack [AIR 1969 SC 43]
vi) Ramesh v. State of Gujarat [AIR 1989 SC 1881]
9. Learned counsel for the petitioner, by relying on the aforesaid decisions, submitted that as an earlier order of detention passed under the Act against the detenu was quashed by this Court on 07.05.2015 in W.P.(HC) No.64/2015, the provisions of the Act do not permit the detaining authority to make another order of detention under the Act either by relying on fresh grounds and/or on the grounds relied on to pass the earlier order of detention.
10. Learned Additional Government Advocate, by relying on ground Nos.7, 8 and 9 in the 'grounds for detention' dated 15.07.2016, submitted that after quashing of an earlier order of detention by this Court, the detenu continued to indulge in gambling activities which warranted passing of a second order of detention which is impugned in this petition.
He submitted that the impugned order of detention is sustainable in law on the basis of the three fresh grounds stated in the 'grounds for detention' dated 15.07.2016. In this context, he referred to Section 6A of the Act and a Nine Judge Bench decision of the Supreme Court in Attorney General for India v. Amratlal Prajivandas (AIR 1994 SC 2179).
11. It is relevant to refer to the impugned detention order dated 15.07.2016 at Annexure-A, which reads as follows:
LANGUAGE
OFFICE OF THE DEPUTY COMMISSIONER and DISTRICT MAGISTRATE, SHIVAMOGGA DISTRICT, SHIVAMOGGA
No.MAG(1).CR.24/16-17/58952 DATED:15/07/2016
DETENTION ORDER:
WHERE AS, I, V.P.Ikkeri, I.A.S., District Magistrate Shivamogga District, am satisfied that with a view to prevent the person known as Giddappa @ Lambu Giddappa S/o Mahadevappa, 37 years, R/o Kanuru Hosakeri, Shikaripura Town, Shimoga District who is habitually indulged in matka gambling, and other illegal activities disturbing to public peace and order. Such activities and offences which are endangering public peace and tranquility as defined under Sec.2(g) of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-Grabbers, Video or Audio piracy activity Act, 1985 (Karnataka Act No.12 of 1985). On Perusal of records and criminal cases registered against the above accused, I am convinced that it is necessary to make an order directing him to be detained as per the Sec.3(2) of the above said act.
NOW, therefore, in exercise of the powers conferred by section (2)(f) and section 3(2) of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-Grabbers, Video or Audio piracy activity Act, 1985(Karnataka Act No.12 of 1985) read with Government order No.HD.174/SST/2016, dated:- 27/05/2016 I hereby direct that the said Giddappa @ Lambu Giddappa S/o Mahadevappa, 37 years, R/o Kanuru Hosakeri, Shikaripura Town, Shimoga District be detained in the Central Prison, Bellary District.
Sd/-
(V.P.Ikkeri)
District Magistrate
Shivamogga District
To:
Giddappa @ Lambu Giddappa S/o. Mahadevappa, 37 years R/o Kanuru Hosakeri, Shikaripura Town, Shimoga District
Copy to: 1.Superintendent of Police, Shivamogga District, Shivamogga along with grounds for detention and copies of documents with a direction to serve and execute on the person and to return to this office after taking the signature of the person on the duplicate along with the name, designation of the Officer serving the warrant including the date and time of service.
2. Superintendent of Jail, Central Prison, Bellary District."
(Emphasis supplied)
12. It is also relevant to refer to the 'Grounds for Detention' dated 15.07.2016 at Annexure-C, which reads as follows:
LANGUAGE
OFFICE OF THE DEPUTY COMMISSIONER and DISTRICT MAGISTRATE, SHIVAMOGGA DISTRICT, SHIVAMOGGA
No.MAG(1).CR.24/16-17/58952 DATED:15/07/2016
To,
Sri Giddappa @ Lambu Giddappa
S/o Mahadevappa
37 years, R/o Kanuru Hosakeri
Shikaripura Town
Shimoga District
GROUNDS FOR DETENTION
Sub:- Detention of Giddappa @ Lambu Giddappa S/o Mahadevappa, 37 years, r/o Kanuru Hosakeri, Shikaripura Town, Shimoga District, under section 3(2) of Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-Grabbers, Video or Audio piracy activity Act 1985 (Karnataka Act 12 of 1985)
Ref:- Report of the Superintendent of Police, Shivamogga District, Shivamogga. No.C/277/DCRB/2016. Date: 11-07-2016.
~~*~~
You, Giddappa @ Lambu Giddappa S/o Mahadevappa, 37 years, R/o Kanuru Hoskeri, Shikaripura Town, Shimoga District, You have studied upto 10th standard, by virtue of which you know to read and write in Kannada. You are staying in a rented house with wife vasantha and 3 Children.
In pursuance of Section 8 of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-Grabbers, Video or Audio piracy activity Act, 1985 (Karnataka Act 12 of 1985) (Herein after referred to as the Act), you are hereby informed that the grounds on which the detention order has been passed, are as follows:-
You are in these illegal activities by writing matka chits since 2003 and you employed poor people for matka gambling in the Shikaripura Town and Rural areas by collecting money and matka chits from various parts of the Shikaripura Town and Rural areas. You are the main organizer of matka gambling in the Shikaripura Taluk. Criminal cases have been booked against you and your followers for organizing matka gambling at various places. Despite booking cases you did not stop your illegal running activity. Your illegal activity has affected the economy of poor people belonging to lower strata of the society, who are indulging in matka gambling on your incitement of getting more money. It has become a public menace in this area mainly because of you. This has affected public order and peace in society.
I have personally perused all the documents submitted against you. You had criminal history since 2003, 21 criminal cases were registered against you and considered following 9 criminal cases for initiation of this Detention Order. Following are the details of cases registered against you in various police station of Shikaripura Town.
1. Shikaripura Town police: Cr.No.36/2011 U/s 78 Clause 03 of Karnataka Police Act.:-
On 26-04-2011 at about 11.00 a.m., the reliable information was received by the complainant Sri N.M.Gururaj, P.S.I. (Law and Order), Shikaripur Town Police, Shikaripura. On receiving information it is learnt that one person was involved in gambling near Mayamba Canteen near Malthesha talkies, S.S.Road, Shikaripura Town. The P.S.I. along with his staff and Panchas have visited the spot and arrested A-1 Ibrahim S/o Kalandar Sab, R/o Raghavendra Extension, Shikaripura Town. On enquiry he revealed that, he was recovering Rupee 1 with false assurance of giving back Rs.80/-. We have recovered and seized before Panchas one ball pen, chits meant for writing gambling numbers and Rs.110/- cash. On enquiry the amount so collected with gambling chits were given to A-2 Giddappa @ Lambu Giddappa S/o Mahadevappa, Kunuru, Kadekeri, Shikaripura Town and further revealed that, he used to act gambling agent to A-2. The accused collecting money from the public, playing with lucky numbers, giving written gambling chits to the public. In this way the accused used to cheat the public. Hence, the above case is registered against the accused.
You are accused No.02 in this case. Convicted in CC No.420/11 with Hon'ble CJ and JMFC court, Shikaripura imposed Rs.100/- fine to both accused. However, you have continued to indulge in illegal activities.
2. Shikaripura Town police, Shikaripura Cr.No.89/2011 U/s 78 Clause 03 of Karnataka Police Act R/w Section 420 of I.P.C.:-
On 27-09-2011 at about 1.40 p.m., the P.S.I. Sri N.M.Gururaj (Law and Order), Shikaripura has received reliable information regarding a person involved in gambling near Kanuru Durgamma temple, Shikaripura. The P.S.I. along with his staff and Panchas have visited the spot and found that one person was involved in gambling by receiving rupee 1 from the public with false assurance of giving Rs. 80/- in the return. On enquiry, a, R/o Kanuru Kadekeri, Shikaripura Town. On his arrest he told that, he was involved in gambling by collecting money from the public. We have recovered before Panchas Rs. 4007/- from the said person, 2 gambling chits, 1 note book, 1 ball pen, 1 mobile handset and 1 Hero Honda Ambition Bike.
You are accused No.01 in this case, and convicted in CC No.1207/11 on 07-09-2012 Hon'ble CJ and JMFC court, Shikaripura imposed Rs.300/- fine to accused. However, you have continued to indulge in illegal activities.
3. Shikaripura Town police, Shikaripura Cr.No.21/2012 U/s 78 Clause 03 of Karnataka Police Act.:-
On 23-02-2012 at about 11.15 a.m. the N.M.Gururaj, P.S.I. (Law and order) Shikaripura Town Police, Shikaripura has received a reliable information that, one person was involved in gambling near Mandakki Batti, Jayanagara Madarasa, Shikaripura Town. On receiving information the P.S.I. with his staff and Panchas have visited the spot and ambushed against the person who was involved in gambling by collecting Rupee 1 with false assurance of giving back Rs. 80/-. On an enquiry he revealed that, A-1 Rizwan S/o Gafoor Sab R/o Kulumekeri, Shikaripura Town. He was arrested and made an enquiry with regard to collecting rupee 1 from the public with assurance of giving Rs.80/-. 1 ball pen, 1 gambling Number chit and Rs.7012/- have been seized before the Panchas from the accused. On further enquiry he revealed that, the amount so collected from the public and gambling chits were given to A-2 Giddappa @ Lambu Giddappa S/o Mahadevappa, R/o Kanuru Kadekeri, Shikaripura Town. A-1 Rizwan used to act as a gambling agent. The accused collecting money from the public, playing with lucky numbers, giving written gambling chits to the public. In this way the accused used to cheat the public. Hence, the above case is registered against the accused.
You are accused No.02 in this case and convicted CC No.547/12 on 08-05-2012 Hon'ble CJ and JMFC court, Shikaripura imposed Rs. 100/- fine to both accused. However, you have continued to indulge in illegal activities.
4. Shikaripura Town police, Shikaripura Cr.No.23/2012 U/s 78 Clause 03 of Karnataka Police Act.
On 18-02-2013 while C.P.C. 1573 and 824 were on beat they received information regarding gambling near Front gate of Basavappa, Shikaripura Town. On receiving the information they visited the spot at about 12.00 noon with Panchas and arrested A-1 and on enquiry he revealed that, he used to supply OC sheets to A-2. From him 1) one sheet containing OC numbers 2) one ball pen, 3) Rs.6060/- cash were recovered before the Panchas and on returning to the station self complaint is prepared and F.I.R. is made.
You are accused No.02 in this case and convicted CC No.549/13 on 16-08-2013 Hon'ble CJ and JMFC court, Shikaripura imposed Rs.300/- fine to both accused. However, you have continued to indulge in illegal activities.
5. Shikaripura Town police, Shikaripura Cr.No.106/2014 U/s 78 Clause 03 of Karnataka Police Act.:-
On 07-08-2014 at about 6.30 p.m. the complainant has received reliable information that, a OC gambling and betting have been going on near Ambedkar Bhavan, Ambedkar Nagar, Shikaripura Town on receiving information the station staff with Panchas visited the spot at 6.55 p.m. The accused was playing O.C. gambling and betting with the public and collecting money from the public. In respect of gambling 01) one sheet paper containing O.C. numbers 02) Rs.210/- used for gambling 03) one ball pen used for O.C. number writing were seized with Panchaname. OC list used to supply on commission to A-2 Giddappa @ Lambu Giddappa. On this information the accused and the articles seized were taken to police station and on self complaint F.I.R. was registered.
This case is pending trial in Hon'ble CJ and JMFC court, Shikaripura in CC No: 1207/15 and next date of hearing is 16/07/2016. However, you have continued to indulge in illegal activities.
6. Shikaripura Town police, Shikaripura Cr. No.163/2014 U/s 78 clause 03 of Karnataka Police Act.:-
On 19-12-2014 at 5.00 p.m. the complainant C.P.I. Shikaripura has received information that, near Marikamba temple, Shikaripura Town OC, gambling and betting was going on and on his direction and information the complainant and C.P.C 1091 at about 5.30 p.m. with panchas visited the spot and found that, the accused playing, OC gambling in the public and was collecting money from the public for the purpose of gambling. In this respect 01) one sheet paper containing O.C. numbers 02) Rs.1080/- used for gambling 03) one ball pen used for O.C. number writing were seized with Panchaname. On confirmation the seized articles and the accused were taken to station, since the case is non-cognizable one, the permission of the court is obtained and F.I.R. is filed.
In this case charge sheet was filed before the Hon'ble Civil Judge and J.M.F.C., Shikaripura in C.C.No.90/2015 and next date of hearing is 08/09/2016. However, you have continued to indulge in illegal activities.
7. Shikaripura Town police, Shikaripura Cr.No.92/2015 U/s 78 Clause 03 of Karnataka Police Act.:-
On 05-09-2015 at about 2.10 p.m. the complainant D.Y.S.P. Shikaripura Sub Division, Shikaripura was in rounds at Doddakeri Giddaiah Temple, Shikaripura Town has received information regarding gambling, OC and betting. The complainant with his staff at about 3.00 p.m. with panchas visited the spot and found that the accused was playing gambling, OC and betting with the public and collect the money from the public. In respect of gambling 01) one sheet paper containing O.C numbers 02) Rs.3500/- used for gambling 03) one ball pen used for O.C. number writing were seized with Panchaname. The accused No.1 the amount so collected in gambling used to give A-2 Giddappa @ Lambu Giddappa. On confirmation the seized articles and the accused were taken to police station, since the case is non-cognizable one, the permission of the court is obtained and F.I.R. is filed.
In this case charge sheet was filed before the Hon'ble Civil judge and J.M.F.C., Shikaripura in C.C.No.1585/2015 and next date of hearing is 28/07/2016. However, you have continued to indulge in illegal activities.
8. Shikaripura Town police, Shikaripura Cr.No.353/2015 U/s 78 Clause 03 of Karnataka Police Act.:-
On 22-12-2015 at about 12.00 p.m. D.Y.S.P. Shikaripura Sub Division, Shikaripura while in his office received information from a informant regarding OC, gambling and betting near Petty shop of Shekarappa situated near Veterinary Hospital. The complainant with his staff proceeded to Hitla Village wherein stag and panchas watching from little distance the petty shop of Shekarappa at about 12.30 p.m. the accused Veeramma W/o Late Shekarappa, aged about 60 years, Lingayaths, Kiran Shop, Hitla village, Shikaripura Taluk was collecting rupee 1 from the public with false assurance of giving back Rs.80/- without having any license etc. by that time the staff and the panchas ambushed the accused and OC chits, ball pen and cash of Rs.460/- in the hands of the accused were seized with Panchaname at about 12.30 p.m. to 1.30 p.m. and the accused was arrested and on an enquiry the accused revealed that, the amount so collected by way of OC used to supply to OC bidder Giddappa S/o Mahadeappa, Shikaripura Town. The above accused Veeramma W/o Late Shekarappa is brought to Shikaripura Rural police Station at about 2.00 p.m. The articles seized at the time of Panchaname were produced and a computer generated complaint is given and on that basis F.I.R. is filed.
The case is under investigation. However, you have continued to indulge in illegal activities.
9. Shikaripura Town police, Shikaripura Cr.No.354/2015 U/s 78 Clause 03 of Karnataka Police Act.:-
On 22-12-2015 at about 2.15 p.m. the D.Y.S.P. Shikaripura Sub Division, Shikaripura while in his office has received information regarding OC, Gambling and Betting near petty shop of Basavarajappa situated near Tank bund of Hitla village. On receiving the information the staff visited Hitla village and information provided to the panchas who were in the circle and requested him to cooperate at the time of ambush. With panchas the staff went to a place which is little far away from the petty shop of Basavarajappa situated near Tank Bund of Hitla village at about 2.45 p.m. and were watching. While so watching we found a person was standing in the oni beside petty shop of Basavarajappa and inviting the public who were passing over the road to participate in Bombay OC, Gambling and betting and falsely promising them to pay Rs.80/- for Rs.1/- in playing lucky number and he was giving numbers and writing and collecting money from the public. Immediately the complainant with his staff surrounded the person before panchas and enquired his name and he said that, he was Basavarajappa G. S/o Eshwarappa, 60 years, Lingayath by caste, Kirani shop, R/o Hitla village, Shikaripura Taluk. On verification of a person he found Rs.1250/- collected from the public, one chit meant for writing OC numbers, one ball pen. Thereafter we enquired with that person whether he has any license etc. to run betting, gambling and OC he said no. He revealed that, the amount so collected and OC chits used to supply to betting Giddappa S/o Mahadevappa Siddapura town. The OC chit, Ball pen were seized and panchaname was prepared before the Panchas from 3.00 p.m. to 3.45 p.m. The accused and the seized articles were brought to the police station at 4.15 p.m. and computer generated complaint was given for taking action against the accused.
The case is under investigation. However, you have continued to indulge in illegal activities.
Since 2003 till date total 21 cases have been registered against you in Shikaripura Rural and Town Police Stations Out of 21 cases complete records in 9 important cases have been attached with this report. These cases clearly establish serious nature of allegations against you. During the course of trial of these cases you plead guilty and continued to indulge in anti-social activities there by becoming a nuisance to the society.
All the above cases have been examined in detail. It is confirmed that you have continued your illegal activities of matka gambling activities in Shikaripura and adjoining area. It is also learnt that rowdy sheet is opened against you in Shikaripura Town Police Station on 01/03/2014. Inspite of the fact that you have convicted in many cases and you plead guilty in the court of Law and agreed that you are a habitual offender and has get your mind to continue with it in you have been kept under close watch by the Police Department along with registration of the cases against you quite oftenly, you have not changed your attitude, and continued with your anti social activities. You are considered as dangerous person by the people of Shikaripura Town. Your attitude has caused alarm with likelihood of disturbance of peace and tranquility of people of Shivamogga city. Hence, I have decided to take action against you, under Section 3(2) of "Karnataka Prevention of Dangerous Activities of Bootlegger, Drug-offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum-Grabbers and Video or Audio, Pirates Act 1985 (Karnataka Act 12 of 1985)., that
1. On perusal of your activities, I am of the confirmed view that your acts are anti-social in nature leading to breach of peace amongst the citizen of Shivamogga which can only be contained by detaining you under order of detention under Section 2(f) of Goonda Act.
2. The nature of offences that you have been booked against you clearly shows that your acts are prejudicial to society causing calculated alarm leading to breach of peace and order.
3. The offences which have been booked against you suggest that you are habitual and mischievous offender, falling within the ambit of the term "Gambler". Your unminding attitude, have created a situation under which the residents of Shivamogga are forced to lead a life with fear, which is condemnable act in the life of the civil society.
4. The regularity with which you have been committing offences noted above further proves that you are not amenable to the ordinary laws of the land and you have been acting in a manner prejudicial to the maintenance of public order.
You are a habitual offender involved OC/Matka in gambling and on 08/04/2015 a proposal by Superintendent of Police Office in No:C/103/DCRB/15 Dt: 08/04/2015 recommending to initiate action against you under Goonda Act is submitted. On the grounds of offences committed by you, Detention order was passed in No:MAG(1)CR/17/35666/14-15 dt: 11/04/2015. On 13/04/2015 you were detained at Central Jail, Bellary. Later on your sister Smt. Kusuma filed on application to Hon'ble High Court, Bangalore requesting cancellation of detention order. The same was considered by the Hon'ble High Court, Bangalore in Writ Petition No: 64/15 and on 07/05/2016 ordered to release due to technical reason. On releasing from Jail, you have been continuing in gambling and other illegal activities and involved in 03 matka gambling cases in Shikaripura town and Rural PS.
As a result it becomes necessary for me to keep you under detention outside the district to curb your illegal activities. Hence you are being detained in Bellary Central Jail in order to put an end to your anti-social activities.
You are informed that the State Government shall within 3 weeks from the date of your detention, make a reference to and place the requisite materials before the Advisory Board, constituted under section 9 of the Karnataka Prevention of Dangerous Activities of Bootlegger, Drug-offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum-grabbers, and Video or audio, pirates Act, 1985, to enable the Advisory Board to make report whether in its opinion there is sufficient cause for your detention. The Advisory Board is required to make a report aforesaid within 7 weeks from the date of your detention.
You are further informed that you shall be heard in person by the Advisory Board in due course, if the Board considers it essential to do so or if you so desire. If you desire to be heard in person by the Advisory Board, you may intimate your desire to the Government through Senior Superintendent, Central Prison, where you are detained so that the advisory board may be intimated about it and arrangements may be made to produce you before the advisory board on the date fixed by it for the purpose. If you desire to be represented through a friend or an agent before the advisory board, you may intimate his name to the under signed through the Superintendent, Central Prison to place the same before the advisory board. You may also keep your friend ready to appear before the advisory board on the date to be notified to you later, your friend or agent should not be a legal practitioner or a comrade in the trade.
You are hereby informed that you have got constitutional rights to appeal against your detention. Therefore you are at liberty to submit your representation, before this Authority.
OR
You are hereby further informed that you are also at liberty to submit your representation to State Government,
OR
You are hereby further informed that you are also at liberty to submit your representation to Advisory Board. So that your representation would be send through Superintendent of Jail, Central Prison Bellary District. Your representation will be considered according to law.
The Report of Superintendent of Police, Shivamogga, documents related to cases registered against you and other relevant documents are here with enclosed for information.
Sd/-
(V.P.IKKERI)
District Magistrate
Shivamogga"
(Emphasis supplied)
13. To examine the contentions raised, it is necessary to refer to Sections 3, 6A, 12, 13 and 14 of the Act; they read as follows:
"3. Power to make orders detaining certain persons.-(1) The State Government may, if satisfied with respect to any bootlegger or drug-offender or gambler or goonda or immoral traffic offender or slum- grabber or Video or Audio Pirate that with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such persons be detained.
(2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing direct that during such periods as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (1), exercise the powers conferred by the sub-section:
Provided that the period specified in the order made by the State Government under this sub-Section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do amend, such order to extend such period from time to time by any period not exceeding three months at any one time.
(3) When any order is made under this Section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government.
6A. Grounds of detention severable.- Where a person has been detained in pursuance of an order of detention under sub-section (1) or sub-section (2) of section 3, which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds, and accordingly,-
(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are,-
(i) vague;
(ii) non-existent;
(iii) not-relevant;
(iv) not connected or not proximately connected with such person; or
(v) invalid for any other reason whatsoever; and it is not, therefore, possible to hold that the Government or the officer making such order would have been satisfied as provided in sub-section (1) of section 3 with reference to the remaining ground or grounds and made the order of detention;
(b) the Government or the officer making the order of detention shall be deemed to have made the order of detention under the said sub-section (1) or sub- section (2), after being satisfied as provided in sub- section (1) with reference to the remaining ground or grounds.
12. Action upon report of Advisory Board.- (1) In any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the State Government may confirm the detention order and continue the detention of the person concerned for such period, not exceeding the maximum period specified in section 13, as they think fit.
(2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of the person concerned, the State Government shall revoke the detention order and cause the person to be released forthwith.
13. Maximum period of detention.- The maximum period for which any person may be detained, in pursuance of any detention order made under this Act which has been confirmed under section 12 shall be twelve months from the date of detention.
14. Revocation of detention orders.- (1) Without prejudice to the provisions of Section 21 of the Karnataka General Clauses Act, 1899, a detention order may, at any time, be revoked or modified by the State Government, notwithstanding that the order has been made by an officer mentioned in sub-section (2) of Section 3.
(2) The revocation or expiry of a detention order (hereinafter in this sub-section referred to as the earlier detention order) shall not, whether such earlier detention order has been made before or after the commencement of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Goondas, Immoral traffic Offenders and Slum-Grabbers (Amendment) Act, 1987, bar the making of another detention order (hereinafter in this sub-section referred to as the subsequent detention order) under section 3 against the same person:
Provided that in a case where no fresh facts have arisen after the revocation or expiry of the earlier detention order made against such person, the maximum period for which such person may be detained in pursuance of the subsequent detention order shall in no case, extend beyond the expiry of a period of twelve months, from the date of detention under the earlier detention order."
14. We have examined the above referred contentions of the learned counsel in the light of the provisions of the Act and the law laid down in the decisions referred to above.
15. A conjoint reading of Sections 3 and 14(2) of the Act indicate that the words 'an order' stated in Section 3(1) of the Act cannot be construed as permitting making of only one order against a person. Section 14(2) of the Act, expressly permits making of any number of preventive detention orders against the same person, after revocation or expiry of an earlier order of detention, provided such a subsequent order conforms to the requirement stated in the said sub-Section. The contention to the contrary is opposed to the provisions of the Act.
16. In view of the decision of the Supreme Court in Ibrahim Bachu Bafan v. State of Gujarat [AIR 1985 SC 697] interpreting the word 'revocation', a second or a subsequent order of detention, after quashing of an earlier order of detention by Court, is permissible under the Act on fresh grounds but not on the same grounds relied on to pass the earlier order of detention. In this context, it is relevant to refer to the following observations made by the Supreme Court in Ibrahim Bachu Bafan v. State of Gujarat [AIR 1985 SC 697]:
"9. The power conferred under clauses (a) and (b) of sub-s.(1) of S.11 is in fact extension of the power recognised under S.21 of the General Clauses Act and while under the General Clauses Act, the power is exercisable by the authority making the order, the named authorities under clauses (a) and (b) of S.11(1) of the Act are also entitled to exercise the power of revocation. When the High Court exercises jurisdiction under Article 226 of the Constitution it does not make an order of revocation. By issuing a High prerogative writ like habeas corpus or certioraris it quashes the order impugned before it and by declaring the order to be void and striking down the same it nullifies the order. The ultimate effect of cancellation of an order by revocation and quashing of the same in exercise of the high prerogative jurisdiction vested in the High Court may be the same but the manner in which the situation is obtained is patently different and while one process is covered by S.11(1) of the Act, the order is not known to the statute and is exercised by an authority beyond the purview of sub-section (1) of S.11 of the Act. It is, therefore, our clear opinion that in a situation where the order of detention has been quashed by the High Court, sub-s.(2) of S.11 is not applicable and the detaining authority is not entitled to make another order under S.3 of the Act on the same grounds.' (Emphasis supplied)
The above observations show that another order of detention, after quashing of an earlier order of detention by Court, is permissible, but not on the same grounds.
17. In view of Section 14(2) of the Act and the decision of the Supreme Court in Ibrahim Bachu Bafan v. State of Gujarat [AIR 1985 SC 697], there is no bar for making a second or another order of detention under the Act against the same person on the basis of fresh facts that have arisen, after revocation, expiry or quashing of an earlier order of detention. However, in case of revocation or expiry of an earlier order of detention, where no fresh facts have arisen after revocation or expiry of an earlier order of detention, a second or another order of detention though permissible in view of Section 14(2) of the Act, but it shall in no case extend beyond the expiry of the period of twelve months from the date of detention under the earlier order.
18. It is relevant to state that where an order of detention has been made on two or more grounds, Section 6A of the Act creates a legal fiction namely, that it shall be deemed that there are as many orders of detention as there are grounds which means that each of such orders is an independent order. In this context, it is relevant to refer to the following observations made by the Supreme Court in State of Gujarat v. Chamanlal Manjibhai Soni [(1981) 2 SCC 24] while interpreting a similar provision in Section 5A of the COFEPOSA Act, 1974:
"2.............................................................................................. What the Act (Section 5A) provides is that where there are a number of grounds of detention covering various activities of the detenu spreading over a period or periods, each activity is a separate ground by itself and if one of the grounds is irrelevant, vague or unspecific, then that will not vitiate the order of detention. The reason for enacting Section 5-A was the fact that several High Courts took the view that where several grounds are mentioned in an order of detention and one of them is found to be either vague or irrelevant then the entire order is vitiated because it cannot be predicated to what extent the subjective satisfaction of the authority could have been influenced by the vague or irrelevant ground. It was to displace the basis of these decisions that the Parliament enacted Section 5-A in order to make it clear that even if one of the grounds is irrelevant but the other grounds are clear and specific that by itself would not vitiate the order of detention. ................................."
19. Further, the following observations made by a Nine Judge Bench of the Supreme Court in Attorney General for India v. Amratlal Prajivandas [AIR 1994 SC 2179] while examining the validity of Section 5A of the COFEPOSA Act, 1974 which is similar to Section 6A of the Act also require to be noticed:
"48. Now, take a case, where three orders of detention are made against the same person under COFEPOSA. Each of the orders is based upon only one ground which is supplied to the detenu. It is found that the ground of detention in support of two of such orders is either vague or irrelevant. But the ground in support of the third order is relevant, definite and proximate. In such a case, while the first two orders would be quashed, the third order would stand. This is precisely what the first part (the main part) of Section 5-A seeks to do. Where the order of detention is based on more than one ground, the section creates a legal fiction, viz., it must be deemed that there are as many orders of detention as there are grounds which means that each of such orders is an independent order. The result is the same as the one in the illustration given by us hereinabove. The second part of it is merely clarificatory and explanatory, which is evident from the fact that it begins with the word "accordingly" --apart from the fact that it is joined to the first part by the word "and". In such a situation, we are unable to see how can the section be characterised as inconsistent with Article 22(5). Had there been no first part, and had the section consisted only of the second part, one can understand the contention that the section is in the teeth of Article 22(5) as interpreted by this Court -- this was indeed the situation in K.Yadigiri Reddy v. The Commissioner of Police ILR (1972) Andh Pra 1025 as we shall presently indicate. It is difficult to conceive any inconsistency or conflict between Article 22(5) and the first -- the main part of Section 5-A. The Parliament is competent to create a legal fiction and it did so in this case. Article 22(5) does not in terms or otherwise prohibit making of more than one order simultaneously against the same person, on different grounds. No decision saying so has been brought to our notice. Be that as it may, we do not see why the Parliament is not competent to say, by creating a legal fiction, that where an order of detention is made on more than one ground, it must be deemed that there are as many orders of detention as there are grounds. If this creation of a legal fiction is competent, then no question of any inconsistency between the section and Article 22(5) can arise." (Underlining supplied)
20. Ground Nos.1 to 6 stated in the present 'grounds for detention' are the same grounds which were relied on to pass the earlier order of detention. However, ground Nos.7, 8 and 9 are fresh grounds based on fresh facts that have happened after quashing of the earlier order of detention by this Court on 07.05.2015. In view of the fresh grounds, relying also on the earlier grounds which were relied on to pass the earlier order of detention has not vitiated the impugned order of detention; this is in view of Section 6A of the Act, which creates a legal fiction, namely that it shall be deemed that there are as many orders of detention as there are grounds which means that each of such orders is an independent order. Therefore, the impugned order of detention, though not sustainable on the basis of the earlier grounds relied on to pass the earlier order of detention, but is sustainable on the basis of the three fresh grounds referred to above. Accordingly, in our opinion, the impugned order of detention is sustainable in law on the basis of fresh grounds stated at Sl.Nos.7, 8 and 9 in the 'grounds for detention' dated 15.07.2016 as they are based on fresh facts that have happened after 07.05.2015, the date of quashing of the earlier order of detention by this Court.
21. It is a settled law that Courts cannot enquire into sufficiency of the grounds to justify the detention. However, as could be seen from the fresh grounds at ground Nos.7, 8 and 9 of the 'grounds for detention' dated 15.07.2016 which are extracted above, it cannot be said that the said grounds do not warrant detention under the Act. There is also proximity between the acts of the detenu referred to in the aforesaid grounds and the order of detention.
22. None of the decisions relied on by the learned counsel for the petitioner were rendered on considering a provision similar to that of Section 6A of the Act. Hence, they have no bearing on the applicability of Section 6A of the Act to this case.
23. In view of the above, the contentions urged by the learned Counsel for the petitioner are rejected. We hold that the impugned order of detention is not violative of the provisions of the Act and is sustainable in law in view of Section 6A of the Act. Consequently, the writ petition fails and is hereby dismissed.
Petition dismissed.