IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 22ND DAY OF MARCH, 2017 PRESENT THE HON'BLE MR. JUSTICE B.S. PATIL AND THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA W.P.(HC) No.108/2016 BETWEEN:
FATHIMA ZOHRA W/O H. MOHAMMED IQBAL, AGED ABOUT 29 YEARS, R/A 2/123, TAVAKKAL MANZIL, SHANTHINAGAR, KAVOOR POST, MANGALORE TALUK, D.K. DISTRICT – 575 015. ... PETITIONER (BY SRI: B. LETHIF, ADVOCATE) AND:
1. THE STATE OF KARNATAKA BY ITS UNDER SECRETARY. DEPARTMENT OF HOME, VIDHANA SOUDHA, BANGALORE – 560 001.
2. THE COMMISSIONER OF POLICE, MANGALORE CITY, D.K. DISTRICT – 575 001.
3. THE SUPERINTENDENT OF PRISON, DHARWAD CENTRAL PRISON, DHARWAD – 580 001. ... RESPONDENTS (BY SRI: I. THARANATH POOJARY, ADDL. GOVT. ADVOCATE FOR R-1 TO R-3) ***** THIS W.P.(HC) IS UNDER ARTICLE 226 AND 227 OF INDIAN CONSTITUTION IS FILED BY THE ADVOCATE FOR THE PETITIONER PRAYS THAT THE HON'BLE HIGH COURT BE PLEASED TO ISSUE A WRIT IN THE NATURE OF HABEAS CORPUS BY QUASHING OF THE ORDER OF DETENTION DATED 20.05.2016 PASSED BY RESPONDENT NO.2 IN NO.MAG/141/MGC/2016 PRODUCED AT ANNEXURE-A AND ANNEXURE-A1 AND ETC.
THE JUDGMENT IN THIS PETITION HAVING BEEN RESERVED ON 20/03/2017 AND IT BEING LISTED FOR PRONOUNCEMENT TODAY, NAGARATHNA J., PRONOUNCED THE FOLLOWING:
O R D E R The petitioner is the wife of the detenue, H.Mohammed Iqbal, son of Hasanabba who has been detained under Karnataka Prevention of Dangerous Activities of Bootleggers, Drugs Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1985 (hereinafter referred to as “the Act” for the sake of brevity).
2. The second respondent-Commissioner of Police, Mangalore City, has passed the order of detention dated 20/05/2016 and the said order along with its Kannada translation are at Annexures-A and A-1 respectively. Copy of the documents served along with the grounds of detention is at Annexure-C. Thereafter, on 27/05/2016, the State Government has approved the order of detention vide Annexure-D.
3. It is alleged in the grounds of detention that, the detenue is involved in the four grave cases, i.e., murder, robbery, dacoity etc., and that the Kavoor Police Station has opened a rowdy sheet in his name on 24/03/2016. That his anti-social activities have created problems for law abiding citizens and therefore, it has become difficult to control his activities under the ordinary laws. Hence, the provisions of the Act have been invoked. It is further stated that the detenue has been involved in Cr.No.19/2009, Cr.No.118/2011, Cr.No.295/2014 and Cr.No.25/2016. Therefore, his activities and his conduct of habitually indulging in criminal offences has made respondent No.2 to invoke Section 2(g) of the Act. That in two out of the four cases charge sheets have been filed and two cases are under investigation. That on 11/10/2014, the detenue was taken to custody in Cr.no.295/2014, but he obtained bail and was released and continued his criminal activities. It is further averred that the detenue was lodged at the Dharwad Prison and the order of detention was approved by the State Government on 27/05/2016. The detenue made a representation to the State Advisory Board through the Superintendent of Prison, which opined that the detention was legal. Thereafter, the State Government has confirmed the detention order for a period of twelve months from 27/06/2016 (Annexure-F). Being aggrieved by the order of detention, grounds of detention, the approval order as well as the confirmatory order, this writ petition has been preferred.
4. We have heard learned counsel for the petitioner and learned Additional Government Advocate for the respondents, who has also filed statement of objections on behalf of the State, as well as perused the material on record.
5. It is noted that Cr.No.118/2011 is a bailable offence. That in Cr.No.295/2014, the first information report (FIR) is against unknown persons and the name of the detenue does not find a place therein. That in respect of that case, charge sheet has not yet been filed. Further, in Cr.No.25/2016 the Mangalore City Kavoor Police have registered a suo motu complaint against the detenue and that the complaint is not filed by any person against the detenue. The charge sheet is not filed in respect of that case also. There is also no voluntary statement forthcoming. He is on bail in all the aforesaid cases. It is further noted that the detention order is dated 20/05/2016, whereas the grounds of detention refer to crime numbers of the years 2009, 2011 and 2014. Hence, we are of the view that there is no proximity between the order of detention and the grounds on which the detention has been made, particularly with regard to Cr.Nos.19/2009, 118/2011 and 295/2014, that too when in respect of the above cases the detenue is on bail.
6. Section 3 enables an order of detention being passed against any bootlegger, drug-offender, gambler, goonda, immoral traffic offender or slum grabber with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. In the instant case, the detention order states that the detenue is a “goonda” within the meaning of Section 2(g) of the Act. The expression “goonda” means a person who either by himself or as a member of or leader of a gang, habitually commits or attempts to commit or abets the commission of offences punishable under Chapter VIII, Chapter XV, Chapter XVI, Chapter XVII or Chapter XXII of the Indian Penal Code (Central Act XLV of 1860). We however, find that the offences as stated in the grounds of detention do not fall within the aforesaid chapters in the instant case and hence, do not come within the purview of Section 3 of the Act completely, but only partially.
7. In the circumstances, we find that the detention order is illegal and vitiated. Hence, Annexure- A order of detention dated 20/05/2016 and all further orders passed and action taken pursuant to that order are quashed including Annexures-A1 and F.
8. We direct that the detenue be released forthwith. We are informed that the detenue is presently at Dharwad Jail. The Registry is directed to communicate this order to the Superintendent, Dharwad Jail so as to release him forthwith, if not required in any other case.
9. Writ petition is allowed in the aforesaid terms.
Operative portion of this order also to be communicated forthwith.
Sd/- JUDGE Sd/- JUDGE S* BSPJ/BVNJ: W.P.(HC) NO.108/2016 22/03/2017 OPERATIVE PORTION OF THE ORDER In the circumstances, we find that the detention order is illegal and vitiated. Hence, Annexure-A order of detention dated 20/05/2016 and all further orders passed and action taken pursuant to that order are quashed including Annexures-A1 and F.
We direct that the detenue be released forthwith. We are informed that the detenue is presently at Dharwad Jail. The Registry is directed to communicate this order to the Superintendent, Dharwad Jail so as to release him forthwith, if not required in any other case.
Writ petition is allowed in the aforesaid terms.
Sd/- JUDGE Sd/- JUDGE S*