Preventive Detention Can Be Quashed If Authority Fails To Provide Documents Relied Upon In Language Known To Detenu: Karnataka High Court

The Karnataka High Court has quashed a detention order passed under the Karnataka Prevention of Dangerous Activities Act 1985 (Goonda Act) on the ground that authorities failed to provide to detenu, the documents relied on by them, in a language known to the detenue.

A Division bench of Justice Mohammad Nawaz and Justice Rajesh Rai K sitting at Kalaburagi thus ordered immediate release of Huchappa @ Dhanaraj Kalebag. It said,

“It is an admitted fact that the detenue has studied upto 3rd standard and does not know English language, as such it is the bounden duty of the detaining authority to provide the translated copies of those documents. Nevertheless, the law contemplates that in order to give an effective representation to the Government and before the Advisory Board, such an opportunity has to be provided to the detenue by the detaining authority. In the case on hand, even the detaining authority has failed to make known the grounds of detention to the detenue within the specified period of 21 days as contemplated under Section 3(3) of the Goonda Act.”

The District Commissioner and District Magistrate, Vijayapur had passed the detention order and the same came to be confirmed by the State government, for a period of 12 months.

The petitioner, wife of the detenue, had contended that the invocation of the provisions of Goonda Act against the detenue in order to keep him under detention for a period of 12 months is illegal and impermissible. According to the counsel, as per the provisions of Section 3(2) of the Goonda Act, the authority at the first instance has to pass an order of detention for a period of 3 months and thereafter if the authority intends to detain further, it has to pass further detention order for another period of 3 months i.e. after expiry of every three months there must be fresh order of detention.

Further, as per the provisions of the Act, soon after the detention, all the documents which the authority intends to rely on, should be placed before the Advisory board within 21 days along with the grounds of detention of the detenue. However, in this case, those documents were placed beyond the period of 21 days, which infringed the rights of the detenue to defend his illegal detention, it was argued.

Finally it was argued that whenever the order of detention is passed, sponsoring authority or the detaining authority has to make available the grounds of detention to the detenue and he should be informed about his right to make an appeal to the State Government or the Advisory Board. However, in this case, no such opportunity was extended to the detenue. The translated, legible copy of the grounds of detention were not supplied to the detenue to enable him to file/submit effective representation as contemplated under the provisions of Section 3(2) of the Goonda Act, it was alleged.

The State government defended its order by arguing that detenue along with his gang members continued to involve and commit various offences like murder, attempt to murder, robbery and threatening people for money etc., in an organized way. Hence, in order to prevent that, the detention order is passed under the provisions of Goonda Act.

Findings:

Firstly, the bench referred to Section 3 of the Act, wherein it is said that when any order is made under Section 3 (3) by an officer mentioned in sub-section (2), he shall forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter and no such order shall remain in force for more than 12 days after the making thereof, unless, in the meantime, it has been approved by the State Government.

Then relying on the Supreme Court judgment in the case of Pesala Nookaraju v. Government of Andhra Pradesh and Others, (2023) the court said, “It is clear that the continuation of the detention pursuant to the confirmatory order passed by the State Government need not also specify the period of detention, neither is it restricted to a period of 3 months. Only if any period is specified in the confirmatory order then the period of detention would be up to such, if no period is specified, then it would be for a maximum period of 12 months from the date of detention. The State Government need not review the order of detention every three months after it has passed the confirmatory order.”

Court also noted that the documents submitted by the sponsoring authority to the detenue in respect of the cases and the grounds for his detention were not translated to enable the detenue to make his effective representation both before the Government and Advisory Board. Thus it held,

“The law contemplates that in order to give an effective representation to the Government and before the Advisory Board, such an opportunity has to be provided to the detenue by the detaining authority. In the case on hand, even the detaining authority has failed to made known the grounds of detention to the detenue within the specified period of 21 days as contemplated under Section 3(3) of the Goonda Act.”

Reliance was placed upon coordinate bench judgment in Smt.Parvathamma Vs. Commissioner of Police and others, wherein it was held that non-supply of the legible documents/copies to the detenue, withholds his right to make proper representation before the Advisory Board and violates provisions of Article 22(5) of the Constitution.

Further noting that the initial detention order was passed on April 10 whereas the detenue was produced before the Advisory board on May 16, the Court said "As per the relevant provisions of Goonda act, the detenue shall produce before the Advisory Board within 21 days. But in the instant case, the respondents failed to produce the detenue within the stipulated period i.e., on or before 01.05.2023."

It held there was no sufficient opportunity given to the detenue to submit his representation either before the Government or before the Advisory Board as contemplated under Section 3(3) of the Goonda Act which is not only a gross violation of the provisions of law but also the violation of natural justice under Article 22(5) of the Constitution of India.

The court also rejected the contention of the authority that if (detenue) is released, he is likely to indulge in such prejudicial activities and therefore, it is necessary to detain him in order to prevent him from engaging in such activities. It said,

“In the case on hand, the respondent authority have failed to substantiate the said aspect for the reasons that, though the respondents stated 10 cases pending against the detenue but out of those 10 cases 4 cases were already acquitted and 1 case is on trial stage. Most of the cases are of the year 2013, 2015 and 2018. There are no such recent cases filed against the detenue.”

Accordingly, it allowed the petition and quashed the detention order.

Case Title: Shrenika And State of Karnataka & Others

Case No: WRIT PETITION NO. 201957/2023

Citation: 2023 LiveLaw (kar) 341

Date of Order: 31-8-2023

Appearance: Advocate S. S.Mamadapur for Petitioner.

Additional Advocate General S. Ismail Zabiulla and AGA Mallikarjun C Basareddy for Respondents.

Click Here To Read/Download Order