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Mala v/s The State of Karnataka, By its Secretary, Department of Home, (Law & Order) & Others

    W.P.H.C. No. 150 of 2017

    Decided On, 13 March 2018

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE R.B. BUDIHAL & THE HONOURABLE MRS. JUSTICE K.S. MUDAGAL

    For the Petitioner: Dinesh Kumar K. Rao, Advocate. For the Respondents: A.M. Suresh Reddy, AGA.



Judgment Text

(Prayer: This WPHC is filed under Articles 226 and 227 of the Constitution of India praying to issue (a) A writ in the nature of Habeas Corpus by quashing of the order of detention dated 20.06.2017 passed by Respondent No.2 in No.CRM(4)DTN10/2017 produced at Annexure-A. (b) A writ in the nature of habeas corpus by quashing of the confirmation order of detention dated 30.06.2017 passed by Respondent No.1 bearing No. HD 285 SST 2017 produced at Annexure-E. (c) A writ of direction directing the Respondent no.3 to release the detenu Mani @ Manikanta @ Dikka S/o Natesan forthwith.)

R.B. Budihal, J.

1. The mother of the detenu has filed this petition praying the Court to issue writ for quashing Annexure-A the detention order dated 20.06.2017, passed by respondent No.2 in No. CRM(4)/DTN/10/2017, Annexure-E the confirmation order dated 30.06.2017, passed by the first respondent in No. HD 285 SST 2017, and a writ of Habeas Corpus against the third respondent for release of the detenu Mani @ Manikanta @ Dikka S/o Natesan forthwith, in the interest of justice.

2. The petitioner contends that, since the detenu is unable to approach this Court challenging the illegal detention, she being the mother filed the present writ petition.

3. Detenu is taken into custody on 20.06.2017. Respondent No.2 passed the detention order dated 20.06.2017. The grounds for detention along with the detention order in English with translation were furnished. The translation copy of certain docume

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nts which are in English is not furnished to detenu in the language known to him i.e., Kannada, as he is not familiar with English. It is further case that, though the detenu never acted nor committed breach of peace and public tranquility, he never threatened the witnesses pertaining to the cases pending against him. He is not in any anti-social activities so as to detain him under the said Act. Crime No.187/2013 resulted in acquittal and other cases are pending. In so far as Crime No.227/2016 of Srirampura Police Station, detenu was taken to custody under body warrant and in respect of Crime No.45/2017 of the said police station, it is stated that body warrant is executed against detenu. This prima facie shows that the petitioner is in judicial custody. It is stated that activities of the detenu is not creating disturbances and breach of harmony. So far as detention order passed on 20.06.2017 by respondent No.2 and was forwarded for confirmation to the State Government and State Government placed the detention order dated 20.06.2017 in NO.CRM (4)/DTN/10/2017. Detenu was produced before the Advisory Board. After detenu was produced before the Advisory Board, till date he has not received any intimation from the State Government as to whether the order of detention has been confirmed. He has submitted his representation dated 26.10.2017 seeking opinion/steps taken by the State Government after being produced before the Advisory Board. Hence, the petitioner challenged the order of detention and the confirmation order on the grounds as averred in the grounds in paragraph nos.6 to 18.

4. The respondents opposed the petition by filing the objection statement. It is contended by the respondents that there is no illegality committed by the respondents in detaining the detenu. It is also contended by them that the order for detention and grounds for detention were sent to detenu and they were served on him. The acknowledgment bears his signature. The detention order and the grounds of detention were not only in English language they were also in Kannada language which is known to the detenu. Hence it is contended by the respondents in the objections statement that there is no illegality committed by the respondents in passing the detention order so also the confirmation order. There is no merit in the petition. Hence it is to be rejected.

5. Heard the learned counsel appearing for the petitioner and also learned AGA for the respondent.

6. Learned counsel for the petitioner made the submission that in Crime No.227/2016 bail order was passed on 25.3.2017, which is much before the passing of the order of detention and also the confirmation order. But this was not placed either before the Detaining Authority or before the Advisory Board. Learned counsel further made the submission that even pertaining to another Crime No.83/2017, bail order was granted on 17.05.2017. This is also prior to the passing of the detention order and the same was not placed before the Detaining Authority and the Advisory Board. Authorities are not in a position to consider them. In all such claim, detenu, already granted with bail order from the concerned Court. Therefore, this has misled the detenu to make his representation before the Detaining Authority and as well as before the Confirmation Authority. Hence, it is the contention of the learned counsel that it is violation of the fundamental principles enunciated in Article 22 Clause (5) of the Constitution of India.

7. Learned Counsel in support of his contention submitted that, when the bail order was not considered by either the Detaining Authority or by the Advisory Board, it is the ground for allowing the petition and issuing writ as prayed in the petition. In this connection, learned counsel for the petitioner relies upon the Judgment of Hon'ble Apex Court in Rushikesh Tanaji Bhoite vs.State of Maharashtra and Ors, AIR 2012 SC 890. The learned counsel also relies upon the order of Division Bench of this Court dated 7.07.2014 in W.P (HC).No. 33/2014. Hence, learned counsel submitted that in view of these grounds, petition be allowed and the writ in the nature of Habeas Corpus as prayed for in the petition be issued.

8. Learned AGA made his submission that the confirmation order was passed on 21.07.2017 and the same was served on the detenu on 23.07.2017. It is the further contention of the learned AGA that regarding the bail orders and non-consideration of the bail order, it is not the case made out by the petitioner before any of these authorities and for the first time, they have raised such contention before this Court. He made the submission that the detention order and the grounds for detention order were not known to the detenu, therefore he was misled and he was not in a position to make representation before the Detaining Authority as well as before the Advisory Board.

9. Per contra, the learned AGA made his submission that material clearly goes to show that the Detaining Authority and the Confirmation Authority have strictly passed the order in accordance with the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug- offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-Grabbers and Video or Audio Pirates Act, 1985 ('Goonda Act' for short) and no such illegality is committed by the said authorities. So far as the non-consideration of bail order is concerned, learned AGA made the submission that it is not the only ground for detention order, but there are many other grounds as mentioned in the detention order, even if the ground raised regarding non- consideration of the bail orders is accepted, that itself is not sufficient to quash the entire order.

10. In this connection, learned AGA drew our attention to Section 6A of the Goonda Act and relies upon the judgment of the Hon'ble Apex Court in Gautam Jain vs. Union of India & Another (2017) 3 SCC 133 wherein it is held, if detention order is based on several, even of one ground fails and other grounds sustain, that itself is not a ground for allowing the petition. Hence, the learned AGA made the submission that there is no merit in the petition and the same is to be rejected.

11. We have perused the grounds urged in the petition and also the detention order, the confirmation order and also the order passed by the Advisory Board. Regarding the contention that the documents are not in the language known to the detenu, Prosecution has placed the material to show that the translated copies in English as well as in Kannada with which the detenu is familiar were furnished. Therefore the contention raised in the writ petition that the Kannada version of the documents were not supplied to the detenu has no force.

12. The contention of non-consideration of the bail order; it is true, in Crime No.227/2016 bail order was passed by the Court on 25.3.2017 and the detenu was granted bail in Crime No.83/2017 on 17.05.2017. Even according to the prosecution, the bail orders were not placed before the detaining authority and the Advisory Board. The contention of the learned AGA that they were not at all the grounds in the representation made by detenu and till now they have not raised such contention and it is only for the first time such contention has been raised before this Court. It is true that those bail orders were not considered by the Detaining Authority as well as Advisory Board.

13. We have perused the provision under Section 6A of the Goonda Act and also decision of the Hon'ble Apex Court in Gautham Jain Vs. Union of India and another It reads as under:

"18. A glimpse of the nature of issue involved, and the arguments which are advanced by both the parties thereupon, makes it crystal clear that insofar as the legal position is concerned, there is no dispute, nor can there be any dispute in this behalf. Both the parties are at ad idem that if the detention order is based on more than one grounds, independent of each other, then the detention order will still survive even if one of the grounds found is non-existing or legally unsustainable [(see Vashisht Narain Karwaria v. State of U.P., (1990) 2 SCC 629:1990 SCC (Cri) 373)]. On the other hand, if the detention order is founded on one composite ground, though containing various species or sub-heads, the detention order would be vitiated if such ground is found fault with [(see A.Sowkath Ali v. Union of India, (200) 7 SCC 148:200 SCC (Cri) 1304)]. Thus, in the instant case, outcome of the appeal depends upon the question as to whether detention order is based on one ground alone or it is a case of multiple grounds on which the impugned detention order was passed.

23. When we apply the aforesaid test to the facts of this case, we are inclined to agree with the conclusion of the High Court that the order of detention is based on multiple grounds inasmuch as various different acts, which form separate grounds, are mentioned on the basis of which the detaining authority formed the opinion that it was desirable to put the appellant under detention. The High Court has dissected the order of detention, which we find is the correct exercise done by the High Court, in paras 11 and 12 of the impugned judgment Gautam Jain v. Union of India, 2014 SCC OnLine Del 1171 and, therefore, we reproduce the same: (Gautam Jain case v. Union of India, 2014 SCC OnLine Del 1171)

"11. We would, therefore, at this stage like to refer to the grounds mentioned in the detention order. Detention order in para 1 states that the petitioner has been indulging in making and receiving hawala payments upon instructions received from abroad from his business premises in Chandni Chowk and residence at SFS Flat, Ashok Vihar. In para 2, it is stated that both the premises were searched on 15-10-2008 and Indian currency of Rs 2,04,00,000 along with three mobile phones were seized from business premises and Indian currency of Rs 64,35,000 and documents were seized from his residential premises. Statement of Shankar alias Mitha Lal, employee of the petitioner was recorded under Section 37 of the Foreign Exchange Management Act, 1999 ("FEMA", for short) wherein, he stated that the main work of the petitioner was receiving and making payments in India on instructions from Sultan Bhai, Maama alias Manu, Mithu Bhai, Hirani and Jabbar Bhai, based in Dubai. Shankar decodified the figures mentioned in the bunch of documents as seized. He had further stated that the petitioner was making and receiving hawala payments to the tune of Rs 2 crores per day on instructions from Dubai and received and made payments to the tune of Rs 180 crores in the last three months. Detention order also mentions and draws inferences from the statements of Ram Chand Gupta, Amit Jain, Ajay Misra, Pawan Kumar Pandey and Vikesh Kumar recorded under Section 37 of FEMA.

12. The detention order mentions gist of the statement of daughter of the petitioner i.e. Ms Krishma Jain again recorded under Section 37 of FEMA regarding Rs 64.35 lakhs seized from the residence of the petitioner. Statements made by the petitioner on 16-12- 2008 and 22-12-2008 under Section 37 of FEMA which gives details of foreign exchange arranged from abroad for different persons in India and decodifying of various details, have been alluded with significance. Detention order also mentions statements of Rajiv Kumar, Jitender Kumar Verma and Raj Kumar Bindal under Section 37 of FEMA and retractions made by different persons whose statements were recorded under Section 37 of FEMA, etc. Searches in different premises on 17-12-2009 and the seizure including seizure of cash made in the said searches and the statements of Kapil Jindal, Kanhaiya Lal, Raj Kumar Aggarwal, Kanti Lal Prajapati, Anil Aggarwal, etc. find elucidation and reliance. Detail of various mobile phones stand recorded. The order refers to searches made by the Department on 24-4-2009 at the places of Muralidhar resulting in seizure of documents and cash. Statement of Bharat Kumar was recorded on different dates. It states that summons were issued to the petitioner for appearance but he did not appear."

26. We, thus, reject the contention of the appellant that, in the instant case, the detention order is based only on one ground. Once it is found that the detention order contains many grounds, even if one of them is to be rejected, principle of segregation contained in Section 5-A gets attracted."

Perusal of the principles enunciated in the above judgment discloses that, if detention is on multiple grounds lapse in one ground does not vitiate the whole order. As per the prosecution, detenu is involved in many criminal cases and in Goonda activities with other criminals creating terror to the public at large and also more particularly to the witnesses who have to depose before the Court in connection with the Crimes registered against him. It is the specific opinion of the authority that there is breach of peace and public tranquility because of the illegal activities and rowdy sheet is opened against the detenu. Therefore the ordinary laws are not sufficient to have the control over the activities of the detenu therefore it is specifically stated that, it is necessary to take preventive measures against the detenu. Considering all these aspects of the matter, as the detention order is passed on multiple grounds and they are severable, we are of the clear opinion that the petitioner has not made out a case to allow the petition and to issue the writ as prayed for in the writ petition.

No merits.

Accordingly petition is hereby rejected.
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