IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 29TH DAY OF JUNE, 2017 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA WP (HC).NO.41 OF 2017 BETWEEN:
HAJJI T.P.ADBUL AZEEZ S/O T.P.AHAMED, AGED ABOUT 86 YEARS, OCC:BUSINESS, R/O NO.10/14/644, NEAR CPC COMPOUND, ANSARI ROAD, BUNDER, MANGALURU – 575 001. ... PETITIONER (BY SRI DINESH KUMAR K.RAO, ADVOCATE FOR SRI R.B.DESHPANDE, ADVOCATE) AND:
1. THE STATE OF KARNATAKA BY ITS SECRETARY, DEPARTMENT OF HOME, (LAW AND ORDER), VIDHANA SOUDHA, BENGALURU – 565 001.
2. COMMISSIONER OF POLICE MANGALURU CITY, MANGALURU, D.K. – 575 001.
3. THE JAILOR BALLARI CENTRAL PRISON, BALLARI DISTRICT, BALLARI – 583 101. ... RESPONDENTS (BY SRI E.S.INDIRESH, AGA) ***** THIS WP(HC) IS FILED UNDER ARTICLE 226 AND 227 OF INDIAN CONSTITUTION PRAYING TO, ISSUE A WRIT IN THE NATURE OF HABEAS CORPUS BY QUASHING OF THE ORDER OF DETENTION DATED 01.10.2016 PASSED BY THE RESPONDENT NO.2 IN NO.MAG/212/MGC/2016 PRODUCED AT ANNEXURE-A. A WRIT IN THE NATURE OF HABEAS CORPUS BY QUASHING OF THE CONFIRMATION ORDER OF DETENTION DATED 02.11.2016 PASSED BY RESPONDENT NO.1 IN NO.HD 375 SST 2016 PRODUCED AT ANNXURE-F. A WRIT OF DIRECTION DIRECTING THE RESPONDENT NO.3 TO RELEASE THE DETENUE T.P.ABDUL RAHEEM @ T.P.RAHIM @ RAHEEM @ GOODS RAHIM @ KANDI RAHEEM, S/O T.P.ABDUL AZEEZ FORTHWITH.
THIS WP(HC) COMING ON FOR FINAL HEARING THIS DAY, RAVI MALIMATH J., MADE THE FOLLOWING:
ORDER The petitioner is the father of the Detenue. The second respondent has passed the detention order on 01.10.2016, in terms of Annexure – A, by exercising the powers conferred under Section – 3(2) of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum Grabbers, 1985 (Karnataka Act No.12 of 1985) (hereinafter referred to as ‘Goonda Act’ for short) and thereby detaining the Detenue Shri.T.P.Abdul Raheem @ T.P.Rahim @ Raheem @ Goods Rahim @ Kandi Raheem.
2. In the grounds of detention, a reference has been made to eight pending cases against the Detenue. Primarily, they are for offence punishable under Narcotic Drugs Psychotropic Substances Act, 1985. The Detenue is on bail in all the cases and the matters are pending trial. Therefore, the Detenue having indulged himself in various crimes, his preventive detention is necessary in order to prevent him from committing any future offences.
3. The second respondent – Commissioner of Police passed the detention order dated 01.10.2016 against the Detenue. The said order was forwarded to the State Government for approval. The State Government passed an approval order on 06.10.2016. Thereafter, the Detenue was produced before the Advisory Board. On the basis of the opinion received from the Advisory Board, the State Government passed a confirmatory order dated 02.11.2016, confirming the order of detention and extending the period of detention of the Detenue to twelve months from the date of detention order.
4. The learned counsel for the petitioner contends that the order of detention is illegal. His first contention is that in the grounds for detention, the reference made to the eight cases therein would not stand attracted by the definition of ‘drug offender’ as defined under Section– 2(e) of the Goonda Act.
5. On the other hand, the learned Government Advocate places reliance on the judgment of this Court dated 17.07.2015, passed by the Division Bench in W.P.(HC) No.94 of 2015, on the very same question that has been raised herein. The Division Bench of this Court, on referring to the definition of a ‘drug offender’ in terms of Section–2(e) of the Goonda Act, came to the conclusion that the acts of the Detenue comes under the definition of a ‘drug offender’ as referred under Section-2(e) of the Goonda Act. Hence, following the aforesaid judgment, the first contention of the learned counsel for the petitioner cannot be accepted.
6. The second contention urged by the learned counsel for the petitioner is that the material furnished to the Detenue did not contain the translated copies of the same. That even though the grounds for detention has been furnished in Kannada and English, the relevant material in support of the same has been furnished only in English. The learned counsel places reliance on the judgment of the Hon'ble Supreme Court reported in AIR 1982 SC 1500, in the case of IBRAHIM AHMAD BATTI VS.
STATE OF GUJARAT AND OTHERS, with reference to para – 10, wherein it was held that all the documents, statements and other materials which have influenced the minds of the detaining authority in arriving at the requisite subjective satisfaction, must be furnished to the Detenue in a language known to him. That the Detenue herein does not know the English language. Therefore, the same would constitute as a breach under Article -22(5) of the Constitution Of India.
7. The learned Government Advocate relying on the statement of objections contends that the documents are not relevant. That the Detenue has studied upto Vth standard and therefore he is deemed to know the English language. We are unable to accept such a contention.
8. The plea of the State that the Detenue has studied upto Vth standard and therefore he is deemed to be conversant with the English language cannot be accepted. That is only a presumption drawn by the respondent. The specific plea of the learned counsel for the petitioner is that the Detenue does not know the English language. Therefore, he does not know the material relied by the detaining authority, while passing the detention order.
9. In view of the contention urged and following the judgment of the Hon'ble Supreme Court as referred to hereinabove, we hold that there is a failure by the State in furnishing the translated copies of the relevant material to the Detenue. Therefore, the continued detention of the Detenue is illegal. The respondent-State is unable to satisfy this Court that the absence of furnishing of the translated copies does not affect the fundamental rights of the Detenue.
10. Under these circumstances, the petition is allowed. The order of detention dated 01.10.2016, vide Annexure-A and the order dated 02.11.2016, in terms of Annexure-F are quashed. The Detenue shall be released forthwith, if not required in any other cases.
SD/- SD/-
JUDGE JUDGE JJ