- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE29h DAY OF JUNE, 2015 R PRESENT THE HON’BLE MR.JUSTICE MOHAN M. SHANTANAGOUDAR AND THE HON’BLE MR.JUSTICE BUDIHAL R.B. WRIT PETITION (HABEAS CORPUS) NO.76/2015 BETWEEN : Yashoda W/o Jaya Poojary Aged about Major R/o No.10-126 Near Someshwara Railway Station Someshwara Village Mangalore Taluk Dakshina Kannada-575022 Detenu: Keshava Poojari @ Choni (By Sri Aruna Shyam, Adv.,) AND : ..Petitioner 1. Secretary (Home Department) Vidhana Soudha Bangalore-560001 - 2 - 2. Police Commissioner Mangalore City Mangalore 3. Senior Superintendent of Prisons Bellary Central Prisons Bellary ..Respondents (By Sri D.Nagaraj, Addl. Government Advocate.,) This Writ Petition (Habeas Corpus) under Article 226 of the Constitution of India is filed by the advocate for the petitioner praying that this Hon’ble Court be pleased to issue a writ in the nature of Habeas Corpus or any writ order or direction declaring the detention of Keshava Poojary @ Choni S/o Jaya Poojary by quashing the order of detention bearing No.MAG/03/MGC/2014 dated 29.10.2014 (Annexure-A) and order No.HD508SST2014dated 06.11.2014, 08.12.2014 and 28.01.2015 (Annexure-C, C1, C2) as illegal and void ab initio and writ in the nature of mandamus directing the respondent No.3 to release the detenu forthwith. This Petition coming on for orders, this day, MOHAN M. SHANTANAGOUDAR, J., made the following:- ORDER
This petition is filed praying for a direction to declare that the order of preventive detention passed against Keshava Poojary @ Choni, S/o.Jaya Poojary is bad in the eyes of law and for quashing the order of detention dated 29.10.2014 (Annexure-A), and the - 3 - orders Annexure-C, dated 6.11.2014, Annexure-C1, dated 8.12.2014 and Annexure-C2, dated 28.1.2015 as illegal and void abinitio.
2. Facts leading to this matter are as under:- The order of detention is passed as per Annexure-A by Commissioner of Police, Mangalore City (respondent No.2) on 29.10.2014 in exercise of powers conferred under Section 3(1) r/w. Section 3(2) of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug- Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1985 (‘Act’ for short) r/w. the Government Order bearing No.HD/72/SST/2013, dated 4.9.2014. The said order is approved by the first respondent by its order dated 6.11.2014 (Annexure-C) under Section 3(3) of the Act. The order of detention is confirmed by the Government and the time of detention is extended on 8.12.2014 (Annexure-C1) under Section 13 of the Act for a period of twelve months subsequent - 4 - to the affirmative opinion of the Advisory Board. Another order passed on 28.1.2015 (Annexure-C2) is similar to the order at Annexure-C1. All those orders are called in question in this writ petition.
3. The questions to be decided in this writ petition i) Whether the initial preventive detention order passed by the delegate, i.e., by the District Magistrate or the Commissioner of Police in exercise of powers conferred on him under Section 3(2) r/w. Section 3(1) of the Act can be for a period of twelve months at a stretch?. ii) Whether it is necessary to mention period of detention in the initial order of preventive detention passed by the delegate under Section 3(2) r/w. Section 3(1) of the Act?. are:- - 5 - 4. Under Section 3(2) of the Act, the Commissioner of Police may be delegated with powers of passing the preventive detention order as provided under sub- Section (1) of Section 3 of the Act and such delegation may extend for a period of three months at one time. Under sub-Section (3) of Section 3 of the Act, the order of detention passed by the Commissioner of Police under Section 3(2) r/w. Section 3(1) of the Act needs to be approved by the State Government within twelve days. In the matter on hand, the order at Annexure-A, dated 29.10.2014 passed under sub-Section (2) of Section 3 r/w. sub-Section (1) of Section 3 of the Act by the delegate discloses that the period of detention would be for twelve months from the date of arrest. The said order passed by the Commissioner of Police is confirmed by the State Government as per Annexure-C, dated 6.11.2014 under Section 12 of the Act; which means that the order passed by the Police Commissioner, Mangalore, detaining the detenue for a period of twelve months is - 6 - confirmed by the State Government by virtue of the order dated 6.11.2014 at Annexure-C. It is needless to observe that before confirming the order of detention, the papers were placed before the Advisory Board which has opined that there are sufficient grounds for detention of the detenue.
5. Learned advocate for the petitioner argued that the initial order of detention passed by the Commissioner of Police is arbitrary and illegal and hence the orders subsequently passed are also illegal and therefore all such orders are liable to be quashed.
6. Before proceeding further, it is beneficial to note the provisions of Section 3 of the Act which read thus:- “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- - 7 - grabber 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 period 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 - 8 - 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. Section 3(1) of the Act confers the power on the State Government to detain a bootlegger or drug- offender or gambler or goonda or immoral traffic offender or slum-grabber with a view to prevent him from acting in any manner prejudicial to the maintenance of public order.-. 9 - Section 3(2) of the Act empowers the State Government to delegate its power as conferred under Section 3(1) of the Act to the District Magistrate or the Commissioner of Police if it is satisfied that it is necessary so to do having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of the concerned District Magistrate or the Commissioner of Police as the case may be. It further provides that the order of delegation shall be in writing. It shall also specify the period during which the District Magistrate or the Commissioner of Police should exercise powers of the State Government under Section 3(1) of the Act. The proviso to sub-Section (2) of Section 3 of the Act lays down that such delegation should not be for a period of more than three months. If the State Government is satisfied that it is necessary to extend the power of detention, it may amend its order for the - 10 - purpose of extending such period from time to time. But at no time the extension shall be for a period of more than three months. If the State Government’s power as contained in Section 3(1) of the Act is delegated to the District Magistrate or the Police Commissioner, they are authorized to exercise that power on the grounds specified in Section 3(1) of the Act. Section 3(3) of the Act requires that where the detention is made by the District Magistrate or the Commissioner of Police (i.e., the delegate of the State Government), they should report the fact to the State Government together with the grounds on which the order has been made and such other particulars as having a bearing on the matter. The detention order so made by the delegate does not remain in force more than twelve days after making thereof, unless, in the meantime the order of detention has been approved by the State Government.-. 11 - It is also relevant to note that Section 8 of the Act requires the detaining authority to communicate the detenue, grounds on which the order is made, as soon as may be, but not later than five days from the date of detention. It also mandates that the detenue shall be afforded the earlier opportunity by making representation against the order to the State Government. Section 10 of the Act requires the State Government to place the detention order and the grounds on which such order may have been made along with the representation made by the detenue as well as the report of the officers made under Section 3(3) of the Act before the Advisory Board, within three weeks from the date of detention. Section 11 of the Act specifies the procedure to be followed by the Advisory Board. The said provision requires the Advisory Board to consider the materials - 12 - placed before it and after hearing the detenue, to submit its report to the State Government within seven weeks from the date of detention of the person concerned. In case where the Advisory Board forms opinion that there is no sufficient cause for detention of the detenue, the State Government shall revoke the detention order. But, if the Advisory Board opines that sufficient cause is made out, the State Government may confirm the detention order and continue the detention of the person concerned under Section 12 of the Act. Section 13 of the Act provides the maximum period of detention for which the person can be detained in pursuance of any detention order made under the Act which has been confirmed under Section 12 of the Act. According to this provision, maximum period shall be not exceeding twelve months from the date of detention. The order of detention may be revoked or modified by - 13 - the State Government in exercise of its power under Section 14 of the Act.
7. From the aforementioned scheme of the Act, it is clear that the aforementioned provisions are inbuilt safeguards against the delays that may be caused in official transactions. The Legislature has taken care to entrust the power of detention to the State Government. As the detention of a person without trial is a serious encroachment on the fundamental right of a citizen, it has further taken care to avoid a blanket delegation of power to subordinate authorities for an indefinite period by providing that the delegation in the initial instance will not exceed for a period of three months and it shall specify the period in the order of delegation. But if the State Government on consideration of the situation finds it necessary, it may again delegate the power of detention to the District Magistrate or the Commissioner of Police from time to time but at no time, the delegation - 14 - shall be for a period more than three months. Neither sub-Section (1) nor sub-Section (2) of Section 3 of the Act requires the detaining authority to specify the period of detention for which a detenue is kept under detention. The period as mentioned in Section 3(2) of the Act refers to the period of delegation and it has no relevance at all to the period for which a person may be detained.
8. As has been held by the Apex Court in the case of T.Devaki Vs. Government of Tamil Nadu & others, reported in (1990)2 SCC456(Bench consisting of three Hon’ble Judges), the Act does not require the detaining authority to specify the period under which a detenue is required to be detained. Thus, if the order of detention passed by the detaining authority fails to specify the period for which a detenue is required to be detained, the order of detention is not rendered invalid or illegal in the absence of such specification. Hence, we are of the opinion that, since the delegation that can be - 15 - in favour of the District Magistrate or the Commissioner of Police to a maximum period of three months, it is not open to the District Magistrate or the Commissioner of Police to pass an order of detention for a period of twelve months at a stretch. The initial order of detention passed by the delegate of the State Government, i.e., District Magistrate or the Commissioner of Police will virtually in existence for twelve days unless it is approved by the Government under Section 3(3) of the Act in the meanwhile. Hence, it is not open for the delegate to fix the time of detention upto twelve months in its initial order. If the period of detention is fixed for twelve months, etc., the same would be in violation of the order of delegation passed by the State Government confirmed under Section 3(2) of the Act. It is also contrary to Section 13 of the Act. The delegate cannot exercise the powers of the State Government under Section 13 of the Act by passing the order of detention under Section 3(1) - 16 - r/w. Section 3(2) of the Act initially for a period of twelve months.
9. It is therefore, plain that it is only after the Advisory Board to which the case has been referred, reports that the detention is justified, the Government should determine what period of detention should be and not before it. Thus, fixing of period of detention at twelve months in the initial order passed under Section 3(1) of the Act r/w. Section 3(2) of the Act by the detaining authority/Commissioner of Police in the present case was therefore, contrary to the scheme of the Act and cannot be sustained.
10. For the aforesaid decision, we are supported by the observations of the Apex Court in the case of Makhan Singh Tarsikka Vs. State of Punjab, reported in AIR1952SC27 which read thus:- - 17 - “It is, therefore, plain that it is only after the Advisory Board, to which the case had been referred, reports that the detention is justified, the Government should determine what period of detention should be and not before. The fixing of the period of detention in the initial order itself in the present case was, therefore, contrary to the scheme of the Act and cannot be supported.” 11. Learned advocate for the petitioner has relied upon a decision of the Apex Court (Bench consisting of two Hon’ble Judges) in the case of Cherukuri Mani Vs. The Chief Secretary, Government of Andhra Pradesh & others (Criminal Appeal No.1133/2014 arising out of SLP.(Crl)No.2531/2014, decided on 8.5.2014). In Cherukuri Mani’s Case, the Apex Court has ruled that the detention order to be passed by the Government under Section 3(1) of the Act shall not be - 18 - more than three months at a time, in view of Article 22(4) of the Constitution of India. The Apex Court in the said matter while saying so, was deciding the case relating to order passed under Section 3(1) r/w. Section 3(2) of the Act and not under Section 13 of the Act. In that matter also, it seems, the initial detention order passed by the delegate under Section 3(2) r/w. Section 3(1) of the Act and the order passed by the Government under Section 3(3) of the Act approving the order passed by the delegate were for a period of twelve months at a stretch. In that context, the Apex Court has ruled that passing of order under Section 3(2) r/w. Section 3(1) of the Act by the delegate and the order of approval under Section 3(3) of the Act by the Government are bad in the eye of law. Passing of order under Section 13 of the Act upto the period of twelve months is always after affirmative opinion rendered by the Advisory Board and not before.-. 19 - The judgment delivered by three Judges’ Bench in Devaki’s Case (cited supra) was not brought to the notice of the Apex Court while deciding Cherukuri Mani’s Case (mentioned supra).
12. Be that as it may, in Devaki’s Case (cited supra) three Judges’ Bench of the Apex Court has clearly ruled that the period as mentioned in Section 3(2) of the Act refers to the power of delegation and it has no relevance at all to the period for which a person may be detained. Neither sub-Section (1) or sub-Section(2) of Section 3 of the Act requires that the detaining authority should specify the period of detention for which a detenue is to be kept under detention. It is also specifically ruled that at no time, the delegation in favour of the District Magistrate and Collector/Commissioner of Police shall be for a period of more than three months. Thus, it is not open for the Commissioner of Police, Mangalore to pass illegally the detention order under - 20 - Section 3(2) r/w. Section 3(1) of the Act for a period of twelve months.
13. It is also relevant to note at this stage itself that Article 22(4) of the Constitution of India mandates that no law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless there is affirmative opinion of the Advisory Board within the said period of three months. However, the same would be subject to Article 22(7) of the Constitution of India. Since this is the constitutional mandate it is not open for the Commissioner of Police being the delegate, to pass initial order for a period twelve months. Sections 3(2) and 13 of the Act contain the provisions governing the preventive detention at two different stages. Under Section 3(2) r/w. Section 3(1) of the Act, it is not open for the Commissioner of Police to pass an order of detention for a period upto twelve months at a stretch.-. 21 - However, it is open for the Government to pass order of detention upto the period of twelve months under Section 13 of the Act if the Advisory Board has granted the affirmative opinion in favour of the order of detention. As mentioned supra, the fixing of period of detention in the initial order, as made in the present case, is therefore contrary to the provisions of the Act and cannot be sustained.
14. Since there cannot be any delegation by the State Government in favour of the Commissioner of Police or the District Magistrate for more than three months for the purpose of detaining the person, the initial order passed by the Commissioner of Police, Mangalore, directing the detention of the detenue for a period of twelve months is illegal and arbitrary. Strangely, such order at Annexure-A dated 29.10.2014 passed by the Commissioner of Police ordering detention - 22 - of the detenue for a period of twelve months is mechanically approved by the State Government on 6.11.2014 under Section 3(3) of the Act.
15. As the initial order of detention passed by the Commissioner of Police under Section 3(2) r/w. Section 3(1) of the Act as well as the order passed by the Government approving the order of detention under Section 3(3) of the Act are opposed to law and arbitrary, subsequent proceedings pursuant thereto are illegal. Since the basic foundation in the form of orders passed under Section 3(1) r/w. Section 3(2) and under Section 3(3) of the Act, cannot be sustained, the detention proceedings pursuant thereto are liable to be quashed, inasmuch as such orders act prejudicial to the interest of detenue. The delegate as well as Government while exercising jurisdiction under Section 3 of the Act have prejudged and predetermined the issue relating to detention, even prior to placing the records before the - 23 - Advisory Board. The Commissioner of Police being delegate cannot predetermine that the Government will approve the order under Section 3(3) of the Act and the Advisory Board will opine positively in favour of the detention order. Hence, the orders at Annexures-A and C are arbitrary inasmuch as the detenue would not be in a position to make his representation before the concerned effectively. Consequently the subsequent orders at Annexures-C1 and C2 are also liable to be quashed. The Legislature consciously has given the mandate that the State Government, if satisfied, may delegate the power to pass an order of detention under the Act to the District Magistrate or the Commissioner of Police, as the case may be, for a maximum period of three months. The Commissioner of Police cannot assume the power of the State Government to pass an order of detention for a - 24 - period of twelve months initially. Therefore, the impugned orders are arbitrary and bad in the eye of law. Thus, we answer the aforementioned questions as under:- i) Initial order of preventive detention passed by the delegate, i.e., the District Magistrate or the Commissioner of Police in exercise of powers conferred on him under Section 3(2) r/w. Section 3(1) of the Act shall not be for a period of twelve months. It is not necessary to mention any period of detention in the initial preventive detention order passed by the delegate under Section 3(2) r/w. Section 3(1) of the Act. ii) Hence, impugned orders at Annexure-A, dated 29.10.2014, Annexure-C, dated 6.11.2014, - 25 - Annexure-C1, dated 8.12.2014 and Annexure-C2, dated 28.1.2015 stand quashed. Writ petition is allowed accordingly. The concerned prison authorities shall release the detenue forthwith if similar order of detention is not passed by any other authorities. Copy of this order shall be furnished to the concerned prison authorities for appropriate action. Sd/- JUDGE Sd/- JUDGE *ck/-