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Karnataka High Court
Judges : P.Vishwanatha Shetty,N.Kumar
IRANNA - Appellant
Versus
GOVERNMENT OF KARNATAKA - Respondent
Writ Petition (H. C.) 13 Of 2006
Decided On : 04/10/2006
Cases Referred:(1990) 1 SCC 328, AIR 1987 SC 725, AIR 1981 SC 1621.
Karnataka Prevention of Dangerous Activities of Boot leggers, Drug - offenders, Gamblers, Goondas, Immoral Traffic offenders and Slum Grabbers Act, 1985 - Section 11(1) - Placing report before Government by Advisory Board within seven weeks - Requirements is mandatory. [P. Vishwanatha Shetty and N. Kumar, JJ.] - While considering sub-section (1) of Section 11, wherein the Advisory Board is required to submit its report to the State Government within seven weeks, the Court has taken the view that the said requirement of submitting report by the Advisory Board to the State Government is mandatory in nature.
Cases Referred:(1990) 1 SCC 328, AIR 1987 SC 725, AIR 1981 SC 1621.
Constitution of India - Article 22 - Detention - Procedural aspects of - Are only safeguards available to a detenu - Hence, should be strictly complied with. [P. Vishwanatha Shetty and N. Kumar, JJ.]: The procedural requirements are the only safeguards available to a detenu since the Court is not expected to go behind the subjective satisfaction of the detaining authority. The Procedural requirements are therefore, to be strictly complied with, if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard. Section 10 makes it mandatory for the Government to place the ground on which the detention order has been made and the representation, if any made by the person affected by the order and in case where an order has been made by an officer, also the report by officer under sub-section (3) of Section 3 of the Act before the advisory Board. This being a mandatory provision which has to be complied with under Article 22 of the Constitution of India, a person cannot be kept in detention beyond three months without referring his case to an Advisory Board. If the procedural requirements of law has not been complied with, the order of detention ceases to be in existence after the expiry of three weeks from the date of detention and therefore, the said order of detention is liable to be quashed.
Cases Referred:(1990) 1 SCC 328, AIR 1987 SC 725, AIR 1981 SC 1621.
Constitution of India - Article 226 - Doctrine of finality or constructive resjudicata - Preventive detention - Petition against - Ground not urged taken in a subsequent petition - Doctrine of constructive resjudicata when not applicable. [P. Vishwanatha Shetty and N. Kumar, JJ.]: When the facts are not in dispute and when there is violation of mandatory provisions of law and in view of the mandate of Article 22 (5) of the Constitution, the personal liberty of a person cannot be curtailed except in a manner known to law, merely because the grounds urged in this writ petition could have been taken in the earlier writ petition filed by the petitioner, is not a ground to deny the relief to the petitioner.
Cases Referred:(1990) 1 SCC 328, AIR 1987 SC 725, AIR 1981 SC 1621.
Karnataka Prevention of Dangerous Activities of Boot leggers, Drug - offenders, Gamblers, Goondas, Immoral Traffic offenders and Slum Grabbers Act, 1985 - Section 10 - Placing of grounds of detention before Advisory Board - Requirements of placing grounds within three weeks - Mandatory. [P. Vishwanatha Shetty and N. Kumar, JJ.] - In every case where a detention order has been made under the Act, the State Government a shall within three weeks from the date of detention of a person under the order, place the same before the Advisory board. Having regard to the language employed in the aforesaid Section, it is clear that the requirement is mandatory in nature. It is necessary to point out that the detenu is kept in detention without any trial. In Section 10 the work employed is "shall". Having regard to the fact that the person is deprived of his right to liberty guaranteed under Article 21 of the Constitution, the requirement of Section 10 which mandates the authority to place the grounds of detention to the Advisory Board within three weeks must be construed as mandatory in nature.
Cases Referred:(1990) 1 SCC 328, AIR 1987 SC 725, AIR 1981 SC 1621.
( 1 ) THE petitioner is the brother of one Ranaji and son of Barma. He has challenged in this writ petition the order of detention dated 2-6-2005 passed by the 2nd respondent against the detenu ranaji on several grounds under the provisions of the Karnataka Prevention of Dangerous activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders and slum-Grabbers Act, 1985 (for short hereinafter referred to as the 'act' ).
( 2 ) THE main ground on which the petitioner is challenging the order of detention is non-compliance of Section 10 of the Act. The order of detention was passed on 2nd November, 2005 under Section 3 (2) of the Act. In pursuance to the said order of detention, the detenu was taker; to custody on 4-6-2005. Thereafter, the 2nd respondent submitted a report to the State government. The State Government has approved the order of detention under Section 3 (3) of the Act on 13-6-2005. Thereafter, the State Government has placed before the Advisory Board the detention order and the grounds on which the detention had been made and the representation of the detenu on 13-6-2005 as required under Section 10 of the Act. Those facts are not in dispute.
( 3 ) THE learned Counsel appearing for the petitioner Sri Venkatesh, contended that the detention order is liable to be quashed on the short ground of not placing the detention order before the advisory Board within three weeks from the date of detention of the detenu. According to the learned Counsel, the provisions contained in Section 10 of the Act are mandatory. In support of his submission, he relied upon the judgment of the Supreme Court in the case of S. M. D. Kiran pasha v. Government of Andhra Pradesh ami Ors. 1989 (3 )Crimes759 (SC ), JT1989 (4 )SC 366 , 1989 (2 )SCALE1083 , (1990 )1 SCC328 , [1989 ]supp2 SCR105.
( 4 ) HOWEVER, the learned State Public Prosecutor contended that this petition is not maintainable for the simple reason that the petitioner had earlier challenged the very order of detention and the same having been dismissed by this Court in Writ Petition No. 95 of 2005, he cannot be allowed to raise additional ground which is urged today seeking quashing of the order of detention. Secondly, he submitted that the provisions contained in Section 10 being directory in nature, the order of detention is not vitiated.
( 5 ) IN the light of rival contentions, the two questions that would arise for our consideration are:
(i) Whether the time stipulated under Section 10 of the Act for reference to the Advisory Board is mandatory or directory? (ii) Whether the doctrine of constructive res judicata apply to proceedings under the preventive detention?
( 6 ) REG, Question No. 1.-In order to answer the first question, it is necessary to refer to Section 10 of the Act which reads as under: 10. Reference to Advisory Board.-In every case where a detention order has been made under this Act, the State Government shall within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under Section 9, the grounds on which the order has been made and the representation, if any, made by the order, and in the case where the order has been made by an. officer, also the report by such officer under sub-section (3) of Section 3. The reading of the aforesaid section makes it clear that in every case where a detention order has been made under the Act, the State Government shall within three weeks from the date of detention of a person under the order, place the same before the Advisory Board. Having regard to the language employed in the aforesaid section, it is clear that the requirement is mandatory in nature. It is necessary to point out that the detenu is kept in detention without any trial. In section 10 of the word employed is "shall". Having regard to the fact that the person is deprived of his right to liberty guaranteed under Article 21 of the Constitution, the requireme
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