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IN THE HIGH COURT OF KARNATAKAGULBARGA BENCH
DATED THIS THE 2ND DAY OF DECEMBER 2014
PRESENT
THE HON’BLE MR.JUSTICE ASHOK B. HINCHIGERI
AND
THE HON’BLE MR. JUSTICE B. SREENIVASE GOWDA
WRIT PETITION No.206009/2014 (GM-RES)
BETWEEN:
Smt. Sangeeta, W/o Satish,Aged 22 years,Yakoob Maniyar Colony,Near Head Post Office,Gulbarga – 585101. …Petitioner
(By Sri Chandrashekara K. Senior Counsel forSri Prashanth M. Biradar & Venkatesh C. Mallabadi, Advocates)
AND:
1. State of KarnatakaBy Prl. Secretary, Home,Vidhana Soudha,Bangalore – 560001.
2. Deputy Commissioner and DistrictMagistrate, Gulbarga.
3. Senior Superintendent,Central Prision, Bijapur.
4. Senior Superintendent,Central Prision, Bijapur. ... Respondents
(By Sri Manvendra Reddy, Govt. Advocate)
R
2
This Writ Petition is filed under Articles 226 & 227 of theConstitution of India praying to issue a writ, direction or order inthe nature of certiorari by quashing the order bearing No.REV/DCG/MAG/835/2013-14/1849 dated 26.05.2014 which isproduced at Annexure “A” and “B” passed by respondent No.2 andall consequential action including confirmation by the respondentNo.1 in order bearing No.HD 285 SST 2014 dated 2806.2014(Annexure “F”) as illegal and void abintio and consequently.
This Writ Petition coming on for Orders this day, ASHOK B.HINCHIGERI J., made the following:
ORDER
The petitioner is the wife of Sri Satish, who is detained
in the Central Prison, Bijapur pursuant to the impugned
order passed by the second respondent in exercise of power
conferred by Section 3(1) of the Karnataka Prevention of
Dangerous Activities of Bootleggers, Drug Offenders,
Gamblers, Goondas Immoral Traffic Offenders and Slum
Grabbers Act, 1985 (herein after referred to as ‘Goondas Act’).
The detenu is subsequently shifted to the Central Prison in
Gulbarga.
2. Sri Chandrashekhar K., learned counsel appearing
for Sri Venkatesh C Mallabadi for the petitioner submits that
the impugned order is bad, as no opportunity is afforded to
the detenu to give representation to the State Government
3
against the order of detention. In support of his submissions,
he read out the provisions contained in Section 8(1) of the
Goondas Act, which is extracted herein below:
“8 (1) When a person is detained in pursuance of a
detention order, the authority making the order shall, as
soon as may be, but not later than five days from the
date of detention, communicate to him the grounds on
which the order has been made and shall afford him
the earliest opportunity of making a representation
against the order to the State Government”.
3. Sri Chandrashekhar submits that the preventive
detention is violative of Article 22(5) of the Constitution of
India, which reads as follows:
“22 (5) When any person is detained in pursuance of
an order made under any law providing for preventive
detention, the authority making the order shall, as soon
as may be, communicate to such person the grounds on
which the order has been made and shall afford him
the earliest opportunity of making a representation
against the order.”
4. He submits that there was no compelling necessity to
pass an order of detention, as the detenu was already in
judicial custody. He submits that the impugned order is
4
vitiated, as the pre-condition prescribed under Section 3(1)
and (2) of the Goondas Act is not present in the instant case.
Section 3(1) and (2) of the Goondas Act read as follows:
“3. Power to make orders detaining certain
persons. –
(1) The State Government may, if satisfied with
respect to any bootlegger or drug-offender or gambler or
goonda or immoral traffic offender or slum-grabber that
with a view to prevent him from acting in any manner
prejudicial to the maintenance of public order, it is
necessary so to do, make an order directing that such
persons be detained.
(2) If, having regard to the circumstances prevailing or
likely to prevail in any area within the local limits of the
jurisdiction of a District Magistrate or a Commissioner of
Police, the State Government is satisfied that it is
necessary so to do, it may, by order in writing, direct that
during such period as may be specified in the order, such
District Magistrate or Commissioner of Police may also, if
satisfied as provided in sub-section (1), exercise the
powers conferred by the sub-section.”
5. He relies on another Division Bench judgment, dated
08.01.2014 passed in WP (HC) No.101/2013, wherein the
order of detention was quashed, as it was passed without
giving proper reasons and particularly for passing the order of
5
detention in respect of a person who was already in judicial
custody and when there was no likelihood of his getting the
bail within the period of detention.
6. He submits that some of the documents supporting
the detention order are in English. As the detenu knows only
Kannada, the Kannada translated version of the documents
ought to have been furnished to the detenu. He also
complains that some of the copies of the supporting
documents were not legible.
7. He submits that the impugned order is not reflective
of application of mind. In as many as three criminal cases, he
has already been acquitted. The non-consideration of the
order of acquittal vitiates the decision-making process. He
also complains of non-consideration of some bail applications
and of the bail orders granted by the competent courts.
8. He submits that the impugned order is passed in a
slip-shod manner. Although the detenu was in the prison at
Gulbarga, he is asked to submit his representation through
the Superintendent of Police, Central Prison, Bangalore. He
6
also submits that the grounds of detention are at variance
with the impugned detention order.
9. The learned counsel sought to draw support from the
judgment of the Apex Court in the case of NUTAN J. PATEL
(Ms) V. S. V. PRASAD AND ANOTHER reported in 1996 SCC
(Cri) 269, wherein it is held that if the detenu is not informed
of his right to make a representation to the concerned
authority, the order of detention becomes unsustainable.
10. He also relies on the judgment of this Court, dated
06.07.2007 passed in WP (HC) No.50/2007 wherein the
detention orders were quashed on the short ground of the
detenu not being informed of his right to make a
representation to the State Government. He submits that the
said view is reiterated in the subsequent cases – Division
Bench’s judgments dated 09.07.2014 in WP (HC) No.20/2014
and dated 03.11.2014 in WP (HC) No.159/2014. He read out
the portion below head note A from the Hon’ble Supreme
Court’s decision in the case of KUNDANBHAI DULABHAI
7
SHAIKH v. DISTT.MAGISTRATE, AHMEDABAD AND
OTHERS, reported in AIR 1996 SC 2998, which is as follows:
“It is not correct to say on ground of non-specification
of authorities in Art.22 (5) to whom representation is to
be made that right to make representation against
preventive detention is not Constitutional right. It will be
seen that right to represent has been given not only by
Article 22(5) of the Constitution but also by Section 8 of
the Act. The right provided under the Act has, therefore,
to be treated as an extension of the constitutional right
already available to a detenu under Article 22 (5). The
legislature has, in fact, given effect to the constitutional
right by providing in Section 8 of the Act that the detenu
shall have the right of making a representation to the
appropriate government.”
11. He also relies upon the Apex Court judgment in
the case of KAMLESHKUMAR ISHWARDAS PATEL V.
UNION OF INDIA AND OTHERS reported in 1995 SCC (Cri)
643. Para 49 read out by him as follows:
“49. At this stage it becomes necessary to deal with
the submissions of the learned Additional Solicitor
General that some of the detenus have been indulging
in illicit smuggling of narcotic drugs and psychotropic
substances on a large scale and are involved in other
anti-national activities which are very harmful to the
8
national economy. He has urged that having regard to
the nature of the activities of the detenus the cases do
not justify interference with the orders of detention
made against them. We are not unmindful of the
harmful consequences of the activities in which the
detenus are alleged to be involved. But while
discharging our constitutional obligation to enforce the
fundamental rights of the people, more especially the
right to personal liberty, we cannot allow ourselves to
be influenced by these considerations. It has been said
that history of liberty is the history of procedural
safeguards. The Framers of the Constitution, being
aware that preventive detention involves a serious
encroachment on the right to personal liberty, took care
to incorporate, in clauses (4) and (5) of Article 22,
certain minimum safeguards for the protection of
persons sought to be preventively detained. These
safeguards are required to be “zealously watched and
enforced by the Court”. Their rigour cannot be
modulated on the basis of the nature of the activities of
a particular person. We would, in this context, reiterate
what was said earlier by this Court while rejecting a
similar submission: (SCC para 4)
“Maybe that the detenu is a smuggler whose tribe
(and how their numbers increase!) deserves no
sympathy since its activities have paralysed the Indian
economy. But the laws of preventive detention afford
only a modicum of safeguards to persons detained
9
under them and if freedom and liberty are to have any
meaning in our democratic set-up, it is essential that at
least those safeguards are not denied to the detenus.”
12. He relies on the Hon’ble Supreme Court’s
judgment in the case of REKHA V. STATE OF TAMIL NADU
THRUOGH SECRETARY TO GOVERNMENT AND ANOTHER
reported in (2011) 2 SCC (Cri) 596. He read out the portion
below head note B, which is as follows:
“Where a detention order is served on a person
already in jail, there should be a real possibility of
release of a person on bail who is already in custody
provided he has moved a bail application which is
pending. It follows logically that if no bail application is
pending, then there is no likelihood of the person in
custody being released on bail, and hence the detention
order will be illegal. However, there can be an exception
to this rule, that is, where a co-accused whose case
stands on the same footing had been granted bail. In
such cases, the detaining authority can reasonably
conclude that there is likelihood of the detenu being
released on bail even though no bail application of his is
pending, since most courts normally grant bail on this
ground. However, details of such alleged similar cases
must be given, otherwise the bald statement of the
authority cannot be believed.”
10
13. He brings to the notice the Hon’ble Supreme
Court’s judgment in the case of MEHRUNISSA V. STATE OF
MAHARASHTRA reported in LAWS (SC)-1981-2-63 for
advancing the submission that the detenu is entitled to be
supplied with the copies of all material documents instead of
having to rely upon his memory in regard to the contents of
the documents. The failure of the detaining authority to
supply the copies of such documents vitiates the detention
order. For advancing the submission that the confirmation of
detention order is bad, if illegible copies are supplied to the
detenu, he relies on the Apex Court judgment in the case of
BHUPINDER SINGH V. UNION OF INDIA AND OTHERS
reported in (1987) SCC (Cri) 328. In this regard, he has also
relied upon the Division Bench’s decision passed on
14.08.2014 in WP (HC) No.57/2014.
14. He relies on the Division Bench judgment, dated
23.08.2011 passed in W.P. (HC) No.119/2011, wherein the
detention order came to be quashed, as the detaining
authority had not made available to the detenu the
11
documents on the basis of which the subjective satisfaction
was recorded.
15. He has also referred to the Division Bench judgment
dated 04.04.2003 passed in WP (HC) No.126/2002, wherein it
is held that the non-supply of all the documents relied upon
by the Government have come in the way of the detenu
making effective representation, which vitiates the detention
order.
16. He submits that the non-supply of all the Kannada
translated version of the documents amounts to denial of
right of being communicated the grounds and of being
afforded the opportunity of making the representation against
the detention order. He sought to draw support from the Apex
Court’s judgment in the case of HADIBANDHU DAS V.
DISTRICT MAGISTRATE, CUTTACK AND ANOTHER
reported in AIR 1969 SC 43.
17. He submits that the opinion of Advisory Board is
binding only on the Government. The advisory opinion is
never intended to be open to the challenge on merits before
12
any forum. Therefore, on the ground that the Advisory Board
has opined against the detenu, his right to challenge the
detention order cannot be taken away. In this regard, he
relies on the Apex Court judgment in the case of AKSHOY
KONAI V. STATE OF WEST BENGAL reported in 1973 SCC
(Cri) 317.
18. Per contra Sri Manvendra Reddy, learned
Government Advocate submits that the detenu is a habitual
offender. He has been assaulting the people with deadly
weapons, committing murders, kidnapping, committing
dacoity, etc. He is involved in 9 such cases of different police
stations of Gulbarga. He submits that the detenu is a rowdy-
sheeter.
19. He submits that the detaining authority has
furnished to the detenu the grounds of detention and the
supporting documents in Kannada and English, which the
detenu knows. He further states that detenu even knows
both Kannada and English languages. He submits that the
13
detaining authority himself has said in his order dated
26.05.2014 (Annexure-‘C’) as follows:
“ ¤ÃªÀÅ F DeÉÕAiÀÄ §UÉÎ £À£ÀUÉ (§AzÀs£ÀzÀ ¥Áæ¢üPÁj) ªÀÄ£À«AiÀÄ£ÀÄß
¸À°è¸À®Ä EZÉÒ ¥ÀlÖ°è ¤ÃªÀÅ ªÀÄÄPÀÛªÁV CAvÀºÀ ªÀÄ£À«AiÀÄ£ÀÄß ¤Ã«gÀĪÀ
PÁgÁUÀȺÀzÀ C¢üÃPÀàPÀgÀ ªÀÄÄSÁAvÀgÀ £À£ÀUÉ ¸À°è¸À§ºÀÄzÀÄ.”
20. He submits that the detenu is also called upon to
give his representation to the Advisory Board, if he so desires.
The detenu has, neither to the detaining authority nor to the
Advisory Board, given any representation. He submits that
all the procedural requirements are complied with in the
instant case. The impugned detention order is passed in the
larger interest of public and with a view to maintain peace
and tranquility.
21. He submits that the ground that the supporting
documents were not legible is being taken for the first time.
Such a ground was not even raised before the Advisory Board.
He submits that it is absolutely fallacious that the detenu
does not know English. As a matter of fact, the detenu
studied in English medium at Linn Memorial English Medium
14
School, H.P.S. Jewargi Road, Gulbarga from 1st standard to
7th standard between 1989 and 1996. Thereafter, the detenu
studied in English medium in Vijaya Vidyalaya, Gulbarga
from 8th standard to 10th standard from 1996 to 1999. He
has also produced the certificates issued by the said schools
as Annexures-R7 and R8.
22. The learned Government Advocate relies on the
Apex Court judgment in the case of G. REDDEIAH vs.
GOVERNMENT OF ANDHRA PRADESH reported in (2012) 2
SCC 389 wherein the detention order was held to be valid, as
the State arrived at a definite conclusion that the provisions
of ordinary criminal law were not sufficient in the ordinary
course to deal firmly because of his being a habitual offender
and after satisfying itself as to all aspects passed an order of
detention with a view to prevent him from indulging in such
offences. While the position that the non-consideration of bail
order amounts to non-application of mind is reiterated, it is
also held that if the detaining authority is aware of the fact of
granting the bail and passes the detention order after due
15
satisfaction in that regard, the detention order would be valid.
He read out para 21 of the said decision, which is extracted
hereinbelow:
“21. The grounds of detention also show that the
detaining authority, after scrutinising all the details
including various orders of arrest and release, bail on
various dates and noting that he is habitually indulging
in trespass in forest area, illicit cutting, felling,
smuggling and transporting of red sanders wood from
the reserved forest owned by the State, arrived at a
definite conclusion that the provisions of normal law
were not sufficient in the ordinary course to deal firmly
because of his habitual nature and after satisfying all
aspects including the fact that the detenu was in jail
from 9-10-2010 to 10-11-2010 and the factum of
release from the jail in 4 criminal cases, passed an
order of detention with a view to prevent him from
further indulging in such offences.”
23. He also relies on the Apex Court judgment in the
case of SUBRAMANIAN vs. STATE OF TAMIL NADU AND
ANOTHER reported in (2012) 4 SCC 699 to advance the
submission that if there is a compelling necessity to detain a
person in order to prevent him from indulging in committing
the crimes in future, which are prejudicial to the maintenance
16
of public order, the Court does not interfere with the
subjective satisfaction reached by the detaining authority
except on exceptional and extremely limited grounds. The
object of law of preventive detention is not punitive but only
preventive. Further, that the action of the executive in
detaining a person being only precautionary, the matter is
necessarily to be left to the discretion of the executive
authority. He also relies on the Division Bench judgment,
dated 22.09.2014 passed in W.P.(H.C.) No.20013/2014
wherein it is held that if there is consistency in the anti social
activities of the detenu, there is no reason to quash the order
of detention.
24. The submissions of learned counsel have received
our thoughtful consideration. The following questions fall for
our consideration:
(i) Whether the impugned detention order is bad as
the detenu is not informed of the right of
representation to the Government?
17
(ii) Whether the non-supply of the Kannada version of
all the documents supporting the detention order
and some portion of the documents being allegedly
illegible warrant the release of the detenu?
(iii) Is the petitioner entitled to succeed on the ground
of non-application of mind on the part of the
detaining authority?
(iv) Whether the detaining authority is in a position to
show that there was compelling necessity to pass
the impugned order?
In Re.Question No.(i)
25. The right to make representation necessarily
implies that the person detained must be informed of his
right to make the representation to the authority that has
made the order of detention at the time when he is served
with the communication containing the grounds of detention
so as to enable him to make such a representation and the
failure to do so results in the denial of the right of person
detained to make a representation.
18
26. The right to make the representation against the
order of detention comprehend the right to make
representation to the authority, who can grant relief and
revoke the order of detention. If the detention order is passed
by the State Government and not by the officer empowered by
the Government, it is then that the detenu has to be
necessarily afforded with an opportunity to give the
representation only to the State Government and not to the
concerned officer.
27. The Division Bench decisions in W.P.(HC).Nos.
50/2007 and 20/2014 do not come to the rescue of the
detenu in this case. Because in the said writ petitions, an
opportunity was given to the detenu only to submit a
representation to the Advisory Board. In the instant case, the
detaining authority has stated that the detenu can submit the
representation to himself (detaining authority) and also to the
Advisory Board. In the case of Kundanbhai Dulabhai Shaikh
(supra), there was delay in considering the detenu’s
19
representation. The case of delay in this case is not involved,
as the petitioner has not given any representation.
28. It is also not the case of the petitioner that the
detaining authority himself has no power to revoke his order.
In the General Clauses Act, 1899, the power of revokation is
always available to the authority that has made the order of
detention. There is no legal impediment for the detaining
authority to consider the representation made by the detenu.
29. We cannot hold that even before the Government’s
approval of the order of the detaining authority, the detaining
authority does not possess the power under Section 21 of the
General Clauses Act, 1899. There is nothing wrong in giving
the right to make a representation to the detaining authority,
so long as the order of detention is not approved by the State
Government. In taking this view, we are fortified by the
Hon’ble Supreme Court’s decision in the case of STATE OF
MAHARASHTRA AND OTHERS v. SANTOSH SHANKAR
ACHARYA reported in (2000) 7 SCC 463. What is of crucial
importance is that the detenu has to be given an opportunity
20
to give the representation, which has been done in the
present case. The detenu cannot find fault with the detaining
authority on the ground that the detenu is given the
opportunity to give the representation only to the detaining
authority and not to the Government. Besides, it is also not
shown to us that such a ground was ever raised before the
Advisory Board. Considering all these aspects of the matter,
we answer question No.(i) against the detenu.
In Re.Question No.(ii):
30. The statement made on behalf of the detenu that he
does not know English is unbelievable. Annexures-R7 and R8
produced by the Government show that he studied in English
medium at Linn Memorial English Medium School, Gulbarga
from I standard to VII standard between 1989-1996.
Thereafter the detenu studied in English medium in Vijaya
Vidyalaya Composite Pre-University College, Gulbarga from
VIII standard to X standard between 1996-1999.
31. Merely because the Kannada translated version of
certain documents is not given, it cannot be said that it has
21
deprived the detenu of the opportunity of making effective
representation. It is profitable to refer to what the Apex Court
has held in paragraph No.4 of its judgment in the case of
M.KUDUBDEEN v. UNION OF INDIA AND OTHERS reported
in (2010) 15 SCC 741.
“4. A perusal of the said document (front portion)
shows that the material particulars therein are the name
of the passenger, flight number, numbers of the packages,
checked baggage, hand baggage, total value of the
dutiable goods being imported and signature. All these
particulars have been filled in that document. The name,
flight number and number of packages have been
mentioned in the document in question. Against the value
of the goods tick mark has been made. The document has
been signed by the detenu. In the face of the above details
given by the detenu in the aforesaid declaration, the
contention that the translation thereof has not been
supplied particularly keeping in view that the reverse is in
the Tamil language, is without any substance. Therefore,
there is no merit in the contention that non-supply of the
English (sic Tamil) translation of the document has
resulted in depriving the petitioner from making an
effective representation under Article 22(5) of the
Constitution. The first contention is therefore rejected.”
22
32. The communication, dated 26.5.2014 (Annexure-D)
containing the grounds of detention itself states that the
detenu speaks Kannada, Hindi, Telegu and English language
and that he knows reading and writing in Kannada and
English.
33. In the Kannada version the detenu is
unambiguously called upon to submit the representation
through the Superintendent of Police where the detenu is
lodged. In the English version an inadvertent surplasage that
the detenu has to submit the representation to the
Superintendent, Central Prison, Bangalore, has therefore
caused no prejudice to the detenu.
34. In the case of PRAKASH CHANDRA MEHTA v.
COMMISSIONER AND SECRETARY, GOVERNMENT OF
KERALA AND OTHERS reported in 1985 (Supp) SCC 144,
which case fell for consideration under the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act,
1974, the Hon’ble Supreme Court has this to say:
23
“65. The principle is well-settled. But in this case it
has to be borne in mind that the grounds were given on
June 25, 1984 following the search and seizure of gold
biscuits from his room in the hotel in his presence and
in the background of the mercy petition as we have
indicated and he was in constant touch with his
daughter and sons and there is no evidence that these
people did not know Hindi or English. Indeed they knew
English as well as Hindi. It is difficult to accept the
position that in the peculiar facts of this case, the
grounds were not communicated in the sense the
grounds of detention were not conveyed to the detenu
Venilal. Whether grounds were communicated or not
depends upon the facts and circumstances of each
case.”
35. Further, on the ground of one or two words being
not as legible as they should have been, the impugned order
cannot be quashed. On the communication, dated 26.5.2004
containing the grounds of detention, the detenu has endorsed
that the contents of the said communication are read over to
him in Kannada and that he has understood the same. Thus,
the second question is liable to be answered in the negative
and accordingly it is answered.
24
In Re.Question No.(iii):
36. The detaining authority has also briefly discussed
about nine criminal cases in which the detenu is involved. He
has also referred to the cases in which the enquiry is going on
and the cases in which he is an under-trial. The detaining
authority has also referred to the cases in which he is
acquitted. On the slender ground of there being small
inaccuracies or discrepancies while making the references to
the criminal cases, the impugned order cannot be quashed.
The small inaccuracies would not impair the satisfaction
arrived at by the detaining authority. In the case of Prakash
Chandra Mehta (supra), the Hon’ble Supreme Court has held
that the detention order is not vitiated on the ground of non-
application of mind, if subjective satisfaction is arrived at on
the basis of other independent and objective factors
enumerated in the grounds.
37. The detaining authority has clearly stated that the
detenu, on the enlargement of the bail, would threaten the
witnesses and manage them to become hostile to prosecution.
25
The detaining authority has also stated that the detenu’s
anti-social activities are going on unabated and that even on
getting the bail, the detenu has not been mending his ways.
Besides, the bail/discharge/acquittal by a criminal court is
no bar to the preventive detention.
38. The perusal of the communication, dated 26.5.2014
Annexure-C) shows that the detaining authority was
conscious of all the relevant aspects of the matter and passed
the detention order in order to prevent the detenu from
committing the prejudicial activities in future. Besides, it is
not even the case of the petitioner that the ground of non-
application of mind was ever raised before the Advisory
Board. The impugned order and the communication
containing the ground for detention are reflective of the
application of mind on the part of the detaining authority.
Thus the third ground also fails the petitioner.
In Re.Question No.(iv):
39. As held by the Apex Court in the case of
M.Kudubdeen (supra), the sufficiency of material in arriving
at subjective satisfaction cannot be gone into in exercise of
26
writ jurisdiction. It is not a case of absence of materials
altogether. It cannot be held that the subjective satisfaction of
the detaining authority about the compelling necessity stands
vitiated. In the present case, it is not possible to accept the
contention that there was no material before the detaining
authority to arrive at a conclusion that there was compelling
necessity to detain the person in question, only because he
was in custody as a remand prisoner.
40. In the case of Rekha (supra), the detention was on
the ground of selling the expired drugs after tampering with
labels and printing fresh labels showing them as non-expired
drugs. Whenever an order of preventive detention is
challenged, the first and foremost question to be examined is
whether the ordinary law of land is sufficient to deal with the
situation. If the answer is in the affirmative, the detention
order is illegal. The Hon’ble Supreme Court, on holding that
the relevant provisions of the IPC and the Drugs and
Cosmetic Act were sufficient to deal with the situation, made
the order for the release of the detenu in the said case. The
27
facts of the said reported case and those of this case are
entirely different.
41. We do not find any infirmity either in the reasoning
of the detaining authority or in the procedure followed by it.
We are satisfied that the detenu was afforded with adequate
opportunities at every stage and that there is no violation of
any procedural safeguards. We fully agree with the reasoning
of the detaining authority, as approved by the Government.
42. The perusal of the statement of objects and reasons
of the Goondas Act reveals that it was enacted as the
activities of certain anti-social elements like bootleggers, drug
offenders, gamglers, goondas, immoral traffic offenders and
slum grabbers have been causing the feeling of insecurity and
alarm amongst the public.
43. In the case of Prakash Chandra Mehta (supra), the
Apex Court has expressed the considered view that the
Court’s approach should be pragmatic and not highly
technical. Strict adherence to the procedure sacrificing
greater social interest is not justified. The protection of society
28
may claim higher priority under certain circumstances. While
quoting the ardent exponent of individual liberties, Thomas
Jefferson, the Apex Court has said in paragraph No.83 in its
decision in Prakash Chandra Mehta’s case (supra), as
follows:
“83. As has been set out by Thomas Jefferson “To lose
our country by a scrupulous adherence to written law,
would be to lose the law itself, with life, liberty, property
and all those who are enjoying them with us; thus
absurdly sacrificing the end to the means” [Thomas
Jefferson, Writings (Washington Ed.), V.542-545 and The
Constitution Between Friends by Louis Fisher 47]. By the
aforesaid approach both justice and power can be
brought together and whatever is just may be powerful
and whatever may be powerful may be just.”
44. The detenu cannot ask this Court to consider the
question as to whether the satisfaction of the detaining
authority can be justified by the application of objective tests.
The detenu can challenge the detention order on the ground
of malafides or on the ground of absence of materials or if the
grounds of detention are vague or irrelevant. It is only in this
incidental manner that the question of satisfaction may
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become justiciable. Otherwise, the reasonableness or
propriety of the said satisfaction cannot be challenged before
the courts. In taking this view, we are fortified by the Apex
Court’s judgment in the case of PUSHKAR MUKHERJEE
AND OTHERS v. STATE OF WEST BENGAL reported in AIR
1970 SC 852. We cannot be called upon to undertake an
investigation into sufficiency of the materials on the basis of
which the detention order is passed.
45. The Writ Court would neither act as a court of
appeal in a petition filed challenging the validity of the
detention order nor it would put itself in the position of the
detaining authority for satisfying itself of the adequacy of the
materials. The power to issue a detention order depends on how
the detaining authority processes, perceives and evaluates the
threat to the maintenance of public order. Its satisfaction is
purely subjective and excludes the judicial enquiry into the
sufficiency of the grounds to justify the detention.
46. In the instant case, we find that the grounds of
detention have nexus with the purpose for which the
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detention is made. The conjoint reading of the detention order
and the communication containing the grounds of detention
reveals that the detention order is legal and is in conformity
with the provisions of Goondas Act.
47. As held by the Apex Court in the case of
Subramanian (supra), it is not open to the Court to interfere
in the matter when the grounds of detention are precise,
pertinent, proximate and relevant.
48. Thus, the consideration of question No.(iv) also
yields the conclusion that the impugned detention order is
invulnerable.
49. In the result, this writ petition is dismissed.
Sd/-JUDGE
Sd/-JUDGE
Msr/Swk/MD