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2018 Supreme(Kar) 389
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
RAGHVENDRA S. CHAUHAN, B.M. SHYAM PRASAD, JJ.
Suresh B. Shetty S/o Boja Shetty – Petitioner
Versus
The State of Karnataka by its Secretary, Department of Home – Respondent
W.P.H.C. No. 73 of 2018
Decided On : 26-09-2018
For the Petitioners: Sri. Dineshkumar K. Rao for Sri. R.B. Deshpande.
For the Respondents: Sri. Sandesh J. Chouta, Sri. S.V. Girikumar.
Headnote:
Indian Penal Code, 1860 - Section 399 - Detention order - Challenged - Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1985 - Section 3(3), 6A,14 and 8 - Detention order has been passed ostensibly on ground that detenu was involved in criminal activities - According to the detention order, he was charged of having committed an offence under Section 399 of IPC and having committed an offence under Section 307 r/w other provisions of IPC - However the detenu was already acquitted in these two cases - Thus, very basis for forming an opinion that the detenu is indulging in dangerous activities, is highly misplaced - Moreover, in other criminal cases in which detenu is allegedly involved in, detenu has already had benefit of bail granted by Court of law - Whether any documents were furnished to detenu prior to his making a representation before Advisory Board? - Held, detention order is deemed to have been made separately on each of grounds mentioned therein; secondly, that even if one or some of grounds are found to be vague, nonexistent, not-relevant, not connected, or not proximately connected with detenu, or invalid for any other reason whatsoever, even then, it is not possible for Court to opine that Government, or Officer making such order would not have been satisfied on basis of remaining grounds for passing detention order - Sub-clause (b) further makes it abundantly clear that it shall be deemed that Government, or Officer was satisfied on basis of remaining ground or grounds that detention was a necessary one - Petition is hereby allowed.
1. Mr. Suresh B. Shetty, the petitioner, has challenged the detention of his brother, Mr. Vishwanath Shetty, by order dated 03.05.2018, before this Court.
2. Briefly the facts of the case are that on 03.05.2018, the District Magistrate and Deputy Commissioner, Udupi District, passed a detention order under the provisions of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1985 (‘the Act’, for short) against Mr. Shetty. Consequently, on 03.05.2018, Mr. Vishwanath Shetty was taken into custody. On 04.05.2018, a copy of the detention order was communicated to the detenu. On 10.05.2018, the said detention order was approved by the Government under Section 3(3) of the Act. On 12.05.2018, the detenu was informed that his detention order has been approved by the State Government. Subsequently, on 17.05.2018, the detenu filed a representation before the Advisory Board. On 22.05.2018, his case was referred to the Advisory Board. The Advisory Board met on 02.06.2018. The detenu appeared before the Advisory Board on the said date. On 02.06.2018, after hearing the detenu, the Advisory Board submitted its report to the Government. Relying on the report of the Advisory Board, the Government confirmed the detention order on 08.06.2018. On 13.06.2018, the Government’s decision confirming the detention order was communicated to the detenu. Hence this petition before this Court.
3. Mr. R.B. Deshpande, the learned counsel for the petitioner, has raised the following contentions before this Court:-
Firstly, the Act prescribes an elaborate procedure for passing of a detention order, for confirmation of the said order, for its revocation, or modification of the said order. It also bestows substantial right on the detenu for submitting a representation against the detention order. Since preventive detention violates the fundamental right of personal liberty, the elaborate procedure established by the Act necessarily has to be followed by the State. According to the learned counsel, if there is any lapse in following the procedure, the omission on the part of the State would vitiate not only the detention order, but also the detention itself.
Secondly, Section 3(2) of the Act permits the State Government to delegate its power to pass a detention order upon a District Magistrate, or a Commissioner of Police. Section 3(3) of the Act bestows a power upon the State to approve the detention order passed by the delegated authority within a period of twelve days. For the purpose of seeking the approval of the State Government, the delegated authority is required to furnish a copy of the detention order, and such other particulars having a bearing on the matter, to the State Government.
Section 8 of the Act bestows a substantial right upon the detenu to be informed of the ground of detention, within a period of five days, and to be given the earliest opportunity to make a representation against the detention order to the State Government.
Section 14 of the Act bestows the power upon the State to either revoke, or to modify the detention order passed by the delegated authority. According to the learned counsel, the right to file a representation in the scheme of the Act, is a vital right. Moreover, while appreciating this right to file a representation, and while considering the act of the State, these three provisions, namely Section 3(3), Section 8(1) and Section 14, have to be read co-jointly.
Most importantly, according to the learned counsel, the right to submit a representation would include the right to have access to all the documents relied upon by the detaining authority before taking its decision to detain the detenu. Therefore it was imperative for the detaining authority to provide all the documents to the detenu while furnishing a copy of the detention order to the detenu. However, in the present case, the detaining authority, in fact, never provi
