IN THE HIGH COURT OF KARNATAKA BENCH AT DHARWAD

DATED THIS THE 04TH DAY OF SEPTEMBER 2014

PRESENT

THE HON'BLE MR. JUSTICE RAM MOHAN REDDY

AND

THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY

WPHC NO.100003 OF 2014 C/W WPHC NO.100005 OF 2014, WPHC NO.100006 OF 2014, WPHC NO.100008 OF 2014 AND WPHC NO.100013 OF 2014

WPHC No.100003 of 2014

Jayashree W/o Sahadev Hirekerur Age 42 years Occ: Household R/o Ramalingeshwar Nagar Gokul Road, Hubli District: Dharwad

…Petitioner

(by Shri Kiran S. Javali, Sr. Adv and Shri Chandrashekara K., Advocate)

And:

1. The State of Karnataka Represented by its Secretary Department of Home Law and Order Vidhana Soudha

Bangalore - 1

• 2. The Commissioner of Police and Additional District Magistrate Hubli-Dharwad Navanagar Hubli
• 3. The Superintendent of Central Prison Bellary Central Prison Bellary
• 4. The Police Inspector Vidya Nagar Police Station Hubli

…Respondents

(by Shri V.M. Banakar, Addl. S.P.P.)

This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to direct respondents No.1 to 4 to produce immediately the detenu (Son of the petitioner namely Chetan S/o Sahadev Hirekerur), quash the impugned order of detantion dated 12.12.2013 bearing No. COP/HD/MAG/1/Detention/2013 passed by the respondent No.2 as per Annexure-A; and etc.

WPHC No. 100005 of 2014

Between:

Shri Mohammed Gafoor S/o Shaik Mohammed @ Mehamood Aged 24 years Resident of Gavisiddeshwara Nagar Hospet Taluk Bellary District

…Petitioner

(by Shri Kiran S. Jawali, Sr. Advocate and Shri Chandrashekar K, Advocate)

And:

• 1. Deputy Commissioner and District Magistrate Bellary District Bellary – 583 101 By Shri Amlan Aditya Biswas
• 2. State of Karnataka By Secretary Home and Transport Department Vidhana Soudha Bangalore – 560 001
• 3. Senior Superintendent Central Prison Gulbarga

…Respondents

(by Shri V.M. Banakar, Addl. S.P.P.)

This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to declare the detention of Shaik Mohammed @ Mehamood S/o Sabjansab by order No.MAG/GA/DTN/05/2013-14 dated 15.03.2014 (Annexure-A and B) passed by respondent No.1 and all consequential action of approval by the respondent No.2 as illegal and void ab initio; and etc.

WPHC No. 100006 of 2014

Between:

Smt. Shaeen Major W/o Sri Dadu @ Dadapeera @ Sheik Dadapere Resident of Millerpet Bellary

…Petitioner

(by Shri Kiran S. Jawali, Sr. Advocate and

Shri Chandrashekar K, Advocate)

And:

• 1. Deputy Commissioner and District Magistrate Bellary District Bellary – 583 101 By Shri Amlan Aditya Biswas
• 2. State of Karnataka By Secretary Home and Transport Department Vidhana Soudha Bangalore – 560 001
• 3. Senior Superintendent Central Prison Bijapur

…Respondents

(by Shri C.S. Patil, Government. Adv)

This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to declare the detention of Sri Dadu @ Dadapeera @ Sheik Dadapere, S/o Nabi Rasool by order No.MAG/GA/DTN/04/2013-14 dated 15.03.2014 (Annexure-A and B) passed by respondent No.1 and all consequential action of approval by the respondent No.2 in order bearing No.HD 194 SST 2014 dt. 24.03.2014 (Annexure-E) as illegal and void ab initio; and etc.

WPHC No. 100008 of 2014

Between:

P. Mohamed Ghouse S/o Shashavali P Aged 28 years "Ghouse Manzil", S.R. Nagar Hospet Taluk

Bellary District

…Petitioner

(by Shri Kiran S. Jawali, Sr. Advocate and Shri Chandrashekar K, Advocate)

And:

• 1. Deputy Commissioner and District Magistrate Bellary District Bellary – 583 101 By Shri Amlan Aditya Biswas
• 2. State of Karnataka By Under Secretary Home Department (Law and Order) Vidhana Soudha Bangalore – 560 001
• 3. Senior Superintendent Central Prison Belgaum

…Respondents

(by Shri C.S. Patil, Government Advocate)

This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to declare the detention of Sri Shashavali S/o Khaja Hussain by order bearing No.MAG/GA/DTN/02/2013-14 dated 15.03.2014 (Annexure-A and B) passed by respondent No.1 and all consequential action of approval by the respondent No.2 as illegal and void ab initio; and etc.

WPHC No. 100013 of 2014

Between:

Smt. Shivamma W/o Kaniveppa Age 27 years

Occ: Housewife R/o 33rd Ward near Huligamma Temple Myasakere Taluk: Hospet District: Bellary

…Petitioner

(by Shri Srinivasa B. Naik, Advocate)

And:

• 1. The Superintendent of Police Bellary Division Bellary – 583 101
• 2. The Deputy Commissioner and District Magistrate Bellary Sub-Division Bellary – 583 101
• 3. The State of Karnataka Represented by its Secretary Department of Home, Law and Order Vidhana Soudha Bangalore

…Respondents

(by Shri C.S. Patil, Government Advocate)

This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to declare the detention of Sri Kaniveppa @ Ginji Kaniveppa S/o late Bheemappa as illegal detention by quashing the order dated 25.04.2014 passed by 3rd respondent bearing No.HD 197 SST 2014 (Annexure-C) and all consequential action of the respondent No.3 as illegal and void ab initio; and etc.

These petitions coming on for preliminary hearing, this day, RAM MOHAN REDDY J, delivered the following:

O R D E R

Since common questions of fact and that of law arise for decision making, with the consent of the learned counsel for the parties, these petitions are clubbed together, finally heard and disposed of by this common order.

2. In all these petitions it is contended that the orders of detention are in violation of Section 3(2) of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drugoffenders, Gambles, Goondas, Immoral Traffic Offenders and slum-Grabbers Act, 1985 (for short 'Act') on the premise that they are for a period of twelve months at one stretch.

3. According to the learned counsel for the petitioners, Sub-Section (2) of Section 3 of the Act and the proviso therein empowers the authority to pass an order of detention at the first instance for a period not exceeding three months and thereafter the State Government, if satisfied, may amend such order to the extent of period from time to time not exceeding three months at any one time. Learned counsel for the petitioners relies upon

the decision of the Apex Court in CHERUKURI MANI W/O NARENDRA CHOWDARI v. CHIEF SECRETARY, GOVERNMENT OF ANDHRA PRADESH AND OTHERS (2014 CRL.L.J. 2748), whereunder, in the case of Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, providing for preventive detention under Section 3 which is (pari materia with that of Section 3 of the Act) it is held that Section 3 mandates the authority to pass an order of detention at one time for a period not exceeding three months only and therefore the Government Order directing detention for a period of twelve months, at a stretch, is in clear violation of the prescribed manner and contrary to the provisions of law. The learned counsel further submits that applying the very same observation and having regard to the proviso to Sub-section (2) of Section 3 of the Act, the order impugned directing detention for a period of twelve months, at a stretch, is in clear violation of the provisions of law and the manner prescribed therein.

4. The learned Government Advocate and the Additional State Public Prosecutor submit that although the proviso to sub-section (2) of Section 3 of the Act invests a jurisdiction in State Government to pass an order of detention, but may do so in excess of three months, and therefore, the orders of detention are fully justified. According to the learned counsel, one of the detenue is an offender charged with the offence under Section 307 of the Indian Penal Code while the other offenders are charged with offence under Section 78(3) of the Karnataka Police Act, 1963 and in the light of the dangerous activities indulged, no lenience must be shown to them. In addition, the learned Government Advocate submits that the detenues are habitual offenders and if let lose would create pandemonium and a threat to public security.

5. Having heard the learned counsel and regard being had to the proviso to sub-section (2) of Section 3 of the Act, there can be no more doubt that the State Government, may pass an order of detention for a period of three months, at a time, and may extend such period from time to time not exceeding three months at a time. The Apex Court too in CHERUKURI MANI's case (supra) though under the Andhra Pradesh Act, observed that Section 3 mandates the authorities to pass an order of detention for one time not exceeding the period of three months. In the instant cases, such Section 3 of the Andhra Act is para materia with Section 3 of the Act, the orders of detention exceeds is for a period of twelve months, being the maximum period, and therefore, are in violation of proviso to sub-section (2) of Section 3 of the Act.

6. It is no doubt true that the Apex Court in ICCHU DEVI CHORARIA v. UNION OF INDIA (AIR 1980 SC 1983) while dealing with a case under COFEPOSA Act, 1974 observed that the Act, enacted for the purpose of eradicating the evil of smuggling, eating into the vitals of the nation like a cancerous growth and eroding the economic stability of the country, an order passed by the Court releasing a person detained under the Act, it is quite possible that the effect of the order may be to let loose on the society, a smuggler who might in all probability, resume his nefarious activities causing incalculable mischief and

harm to the economy of the nation. Their Lordships, at the same time, observed that the power of preventive detention is a draconian power justified only in the interest of public security and order and it is tolerated in a free society only as a necessary evil, while the power to detail without trial is an extraordinary power constituting encroachment on personal liberty and it is the solemn duty of the Courts to ensure that this power is exercised strictly in accordance with the requirements of the Constitution and the laws. It was further observed that the Court should always lean in favour of upholding personal liberty, for it is one of the most cherished values of mankind without which life would not be worth living, a pillar of free democratic society.

7. Keeping in mind the aforesaid observations of the Apex Court, undoubtedly the exercise of power by the authority and the State Government under Section 3 of the Act must be strictly in accordance with the said Act. The power of preventive detention though vests in the authorities in the State but the Act provides for procedural safeguard with a view to protect citizens from arbitrary and unjustified invasion of personal liberty, which

the Courts have zealously tried to uphold and safeguard and therefore the orders impugned call for interference.

8. The learned Additional State Public Prosecutor submits that the detenu in Writ Petition No.100003 of 2014 is a rowdy-sheeter and that under Clause 1063(1) of the Karnataka Police Manual detenues should be informally watched by the Police or VDP Dalapathi and that necessary instructions would be issued to the police to exercise such power in respect of the said detenu.

9. In the result, these petitions are allowed in part. Orders passed by the State Government directing detention for a period of twelve months are quashed.

10. The Registry to communicate this order to the Jail authorities forthwith for release of the detenues.

SD/- JUDGE

SD/- JUDGE

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