1 R IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH ON THE25H DAY OF APRIL, 2015 PRESENT THE HON’BLE MR.JUSTICE RAVI MALIMATH AND THE HON’BLE MR.JUSTICE BUDIHAL R.B. WRIT PETITION (HC) NO.200007/2015 BETWEEN: Shankara Gouda S/o Malkendra Gouda Balaganur, Age:
51. years, Occ: Grama Panchayath Member (Hutti) Represented through his son-in-law Nagareddy S/o Basanna, Age:
36. years, Occ: Agriculture, R/o Hutti village, Tq. Lingasuguru, Dist. Raichur 584 115. (By Sri Avinash A.Uploankar, Advocate) AND:
1. The State of Karnataka Represented by its Under Secretary, (Law & Order), Home Department, …Petitioner 2 Vidhan Soudha, Bangalore – 01.
2. 3. The Deputy Commissioner And District Magistrate, Raichur 584101. Superintendent of Police Raichur-584101. . (By Sri P. Vilas Kumar Govt. Advocate) …Respondents This WPHC is filed under Articles 226 and 227 of the Constitution of India, praying to issue direction or order in the nature of certiorari the order of respondent No.2 bearing No.JIRA/MAG/GUMNIKA/66/2014-15 dated 27.02.2015 under section 3 of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gambles, Goondas, Immoral Traffic offenders and Slum Grabbers Act 1985 (Karnataka Act No.12/1985) and same is considered and confirmed by the State Advisory Committee bearing order No.HD114SST2015dated 9.4.2015, which are at Annexure-A, B, and C. This petition coming on for orders, this day, RAVI MALIMATH J., made the following: ORDER
The petitioner is the detenue represented through his father in law. The 2nd Respondent being satisfied that the detenue is a 3 gambler as defined under section 2(f) of Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gambles, Goondas, Immoral Traffic offenders and Slum Grabbers Act 1985 (in short referred as an Act) and he is habitual offender actively involved in matka offences and has therefore become a threat to the prevailing public peace, passed the order of preventive detention under section 3(1) of the said Act vide Annexure-A. A representation was submitted which was placed before the Advisory Board which confirmed the order of detention and thereafter the Government has passed the order of preventive detention. These orders of detention are challenged by the petitioner herein.
2. Learned counsel for the petitioner contends that the order of detention lacks subjective satisfaction. That the relevant material necessary in order to arrive at subjective satisfaction has not been placed before the detaining authority. That the material which would prejudicially affect the subjective satisfaction has not been placed for consideration before the detaining authority. 4 3. In support of his case, he placed reliance on the judgment reported in AIR (2012) 2 SCC72in the case of Rushikesh Tanaji Bhoite Vs. State of Maharashtra and Ors. to contend that if the relevant material of the detenue being released on bail or acquitted are not placed before the detaining authority or not considered by the detaining authority, the same would vitiate the detention order. Hence, he pleads that the detenue be released forthwith.
4. On the other hand, learned counsel for the respondents submits that there is no error in the detention order passed by the detaining Authority. He placed reliance on the objections filed by him to the petition and contends that there is subjective satisfaction arrived at by the detaining authority. That only because the bail orders etc. have not been placed before the detaining authority, it cannot be said that the order of detention is vitiated. That all the materials have been taken into consideration while passing the detention order. That is only after arriving at a subjective satisfaction that the order of detention has been passed. That the detenue is involved in a number criminal cases and all have been 5 considered. Apart from that, other materials also have been taken into consideration.
5. In support of his case, he placed reliance on the unreported judgment of this Court dated 02.12.2012 passed in W.P.No.206009/2014 (GM-RES) with specific reference to paras 44 an d 45 to contend that the reasonableness or propriety of the of the said satisfaction cannot be challenged before the Courts. That the Courts cannot be called upon to undertake an investigation into sufficiency of the materials on the basis of which the detention order is passed. That subjective satisfaction excludes the judicial enquiry into the sufficiency of the grounds to justify the detention. Hence, it is pleaded that the petition be dismissed.
6. Heard learned counsels.
7. Learned counsel for the petitioner has filed in Court today a memo along with the copies of the judgments in various Courts pertaining to the detenue. The same is taken on record. 6 8. The Detaining Authority while passing the order of detention, relied upon as many as 21 cases in which the detenue was involved. Particulars of each one of the cases have been narrated in the grounds of detention. It is herein that the contention of the petitioner comes into play. Learned counsel for the petitioner submits that the relevant material to arrive at subjective satisfaction has not been placed before the detaining authority.
9. Sl.No.4 mentioned in the grounds of detention is with reference to Crime No.82/2005 for the offence punishable under Section 78(3) of the Karnataka Police Act. The detenue is arrayed as accused No.2. It is shown that he is absconding. Learned counsel for the petitioner has produced the order passed by the J.M.F.C. Court, Lingasugur dated 14.10.2005 with reference to Crime No.82/2005 registered as C.C.No.453/2005 which would show that the accused are on police bail, having been enlarged on bail on 25.1.2006. 7 10. Sl.No.7 in the grounds of detention is with reference to Crime No.13/2007 for the offence punishable under Section 78(3) of the Karnataka Police Act. The detenue is arrayed as accused No.2. It is shown that he is absconding. Learned counsel for the petitioner has produced the order passed by the J.M.F.C. Court, Lingasugur in C.C.No.347/2007 dated 11.10.2007 with reference to Crime No.13/2007 which would show that the accused is on bail.
11. Sl.No.8 in the grounds of detention is with reference to Crime No.159/2007 for the offence punishable under Section 78(3) of the Karnataka Police Act. The detenue is arrayed as accused No.2. It is shown that the accused Nos. 1 to 3 were arrested on 23.1.2007 and sent to judicial custody. The order sheet of the J.M.F.C. Court, Lingasugur in C.C.No.96/2008 with reference to Crime No.159/2007 would show that the accused was granted bail by the order of the Court dated 25.8.2007.
12. Sl.No.9 in the grounds of detention is with reference to Crime No.12/2007 for the offence punishable under Section 78(3) 8 of the Karnataka Police Act. The detenue is arrayed as accused No.2. It is shown that he is absconding. The order-sheet of the J.M.F.C. Court, Lingasugur in C.C.No.673/2009 would show that the accused Nos. 1 and 2 are on bail.
13. Sl.No.10 in the grounds of detention is with reference to Crime No.7/2010 for the offence punishable under Section 78(3) of the Karnataka Police Act. The detenue is arrayed as accused No.2. It is shown in the detention order that he is absconding. The order sheet of the J.M.F.C. Court, Lingasugur in C.C.No.194/2010 for Crime No.7/2010 would show that the accused No.2 was granted bail by the order dated 20.1.2010.
14. These material would apparently indicate that notwithstanding the judicial orders with regard to the detenue being on bail or having been acquitted have not been placed for consideration before the detaining authority. The material placed before the detaining authority are not the true state of affairs. They run contrary to the judicial orders as referred to herein above. It is 9 not in one case, but in 5 cases that the error has occurred. It is in this regard that the Hon’ble Supreme Court in the judgment reported in Rushikesh’s case cited supra held at para Nos.8 and 10 as follows: “8. It would be, thus, seen that the order releasing the detenu on bail in the crime registered on August 14, 2010 and the order relaxing the bail condition were passed by the Judicial Magistrate, 1st Class, Dharangaon much before the issuance of detention order dated January 10, 2011. However, the detention order or the grounds supplied to the detenu do not show that the detaining authority was aware of the bail order granted in favour of the dentenu on August 15, 2010.
9. xxxxxxxxxx 10. In the present case, since the order of bail dated August 15, 2010 was neither placed before the detaining authority at the time of passing the order of detention nor the detaining authority was aware of the order of bail, in our view, the detention order is rendered invalid. We cannot attempt to asses in what manner and to what extent consideration of the order granting bail to the detenu would have effected the satisfaction of the detaining authority but suffice it to say that 10 non-placing and non-consideration of the material as vital as the bail order has vitiated the subjective decision of the detaining authority”.
15. Therein, reliance was also placed on three Judge Bench judgment of the Hon’ble Supreme Court in the case of Rekha v. State of Tamil Nadu Through Secretary to Government and Anr., reported in (2011) 5 SCC244 as well as on the judgment of the Hon’ble Supreme Court in the case of Vijay Narain Singh v. State of Bihar and Others reported in (1984) 3 SCC14 The Hon’ble Supreme Court therein have held that subjective satisfaction can be arrived at only if the detaining authority considers all the material that is placed before it. If the order of bail or of acquittal are not produced before the detaining authority, the detention order would be invaild. In so reasoning, the Hon’ble Supreme Court also held that it is not possible to attempt or to assess in what manner or to what extent, the consideration of order granting bail would have effected the satisfaction of the detaining authority. It is sufficient to hold that non-placing the relevant material before the detaining authority would render the detention order as invalid. 11 16. The Hon’ble Supreme Court in the judgment reported in (1989) 2 SCC370in the case of DHARAMDAS SHAMLAL AGARWAL vs. POLICE COMMISSIONER AND ANOTHER held at para 12 as follows: “12. From the above decisions it emerges that the requisite subjective satisfaction, the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influenced his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order. It is clear to our mind that in the case on hand, at the time when the detaining authority passed the detention order this vital fact, namely, the acquittals of the detenu in case numbers mentioned at serial Nos. 2 and 3 have not been brought to his notice and on the other hand they were withheld and the detaining authority was given to understand that the trial of 12 those cases were pending. The explanation given by the learned counsel for the respondents, as we have already pointed out, cannot be accepted for a moment. The result is that the non- placing of the material fact – namely the acquittal of detenu in the abovesaid two cases resulting in non-application of minds of the detaining authority to the said fact has vitiated the requisite subjective satisfaction, rendering the impugned detention order invalid”.
17. The judgment relied upon by the respondents with referene to para Nos.44 and 45 in the case of Smt. Sangeeta is concerned, would not be applicable herein. The Division Bench therein held that it is not possible to undertake an investigation into sufficiency of the materials. That whether the material is quality material to order a detention cannot be gone into by the Court. We do not dispute such a principle. However, what the Hon’ble Supreme Court has held is not with reference to the quality of the material or the adequacy of the subjective satisfaction, but, as to 13 whether non-placing the relevant material would render the detention order as being invalid. The point for consideration is therefore not covered by the judgment in Smt. Sangeeta’s case.
18. In the aforesaid judgments it was held that non-placing and non-consideration of relevant material would render the detention order as invalid.
19. The material on record would clearly show that the orders of bail and orders of acquittal were not placed before the detaining authority. The subjective satisfaction therefore arrived at by the detaining authority is faulty. It cannot be relied upon. The detention order consequently becomes invalid. For the aforesaid reasons, the petition is allowed. The detenue Shankara Gouda S/o Malakendra Gouda Balaganur is directed to be released from custody forthwith, if he is not required in any other cases. 14 The Registry to transmit the operative portion of this Order forthwith to the Central Prison at Raichur. Sd/- JUDGE Sd/- JUDGE *MK