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Sri Yallappa S/O Mareppa Vs. The State of Karntaka & Ors - Court Judgment

LegalCrystal Citation
CourtKarnataka Kalaburagi High Court
Decided On
Case NumberWPHC 200007/2016
Judge
AppellantSri Yallappa S/O Mareppa
RespondentThe State of Karntaka & Ors
Excerpt:
- 1 - r in the high court of karnataka kalaburagi bench dated this the18h day of november, 2016 present the hon’ble mr. justice b.s.patil and the hon’ble mrs. justice b.v.nagarathna w.p.(h.c.).no.200007/2016 between: sri. yallappa s/o mareppa age:35. years occ: coolie rep. by his wife durugamma w/o yallappa age:25. years occ: coolie r/o rajeev nagar shiyatalab raichur tq. & dist. raichur- 584 101. …detenu (by sri. arunkumar amargundappa, advocate) and:1. 2.3. the state of karnataka represented by its under secretary (law & order) home department vidhana soudha bangalore- 01 the deputy commissioner raichur dist. raichur- 584 101 the superintendent of police - 2 - raichur dist. raichur- 584 101. …respondents (by sri. r.v. nadagouda, a.a.g.) ****** this w.p.(h.c.) is filed under.....
Judgment:

- 1 - R IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE18H DAY OF NOVEMBER, 2016 PRESENT THE HON’BLE MR. JUSTICE B.S.PATIL AND THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA W.P.(H.C.).No.200007/2016 BETWEEN: SRI. YALLAPPA S/O MAREPPA AGE:

35. YEARS OCC: COOLIE REP. BY HIS WIFE DURUGAMMA W/O YALLAPPA AGE:

25. YEARS OCC: COOLIE R/O RAJEEV NAGAR SHIYATALAB RAICHUR TQ. & DIST. RAICHUR- 584 101. …DETENU (BY SRI. ARUNKUMAR AMARGUNDAPPA, ADVOCATE) AND:

1.

2.

3. THE STATE OF KARNATAKA REPRESENTED BY ITS UNDER SECRETARY (LAW &

ORDER

) HOME DEPARTMENT VIDHANA SOUDHA BANGALORE- 01 THE DEPUTY COMMISSIONER RAICHUR DIST. RAICHUR- 584 101 THE SUPERINTENDENT OF POLICE - 2 - RAICHUR DIST. RAICHUR- 584 101. …RESPONDENTS (BY SRI. R.V. NADAGOUDA, A.A.G.) ****** THIS W.P.(H.C.) IS FILED UNDER ARTICLES226& 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE DIRECTION OR

ORDER

IN THE NATURE OF CERTIORARI QUASHING THE

ORDER

OF RESPONDENT NO.2 VIDE ANNEXURE-“A” BEARING NO.SAM.KAM/MAG/GOONDAACT/ 89/2015-16, DATED0201/2016 UNDER SECTION3OF KARNATAKA PREVENTION OF DANGEROUS ACTIVITIES OF BOOTLEGGERS DRUG OFFENDERS, GAMBLERS, GOONDAS, IMMORAL TRAFFIC OFFENDERS AND SLUM GRABBERS ACT, 1985 (KARNATAKA ACT NO.12/1985) AND ETC., THIS W.P.(H.C.) BEING RESERVED ON2009/2016 AND COMING ON FOR PRONOUNCEMENT OF

ORDER

THIS DAY, NAGARATHNA, J., MADE THE FOLLOWING:

ORDER

The petitioner has assailed the order of the second respondent – Deputy Commissioner, Raichur District, Raichur, bearing No.Sam.Kam/MAG/GOONDA ACT/89/2015-16, dated 02/01/2016 (Annexure “A”), which has been issued under Section 3(2) of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, - 3 - Immoral Traffic Offenders and Slum Grabbers Act, 1985 (hereinafter, referred to as “the Act”, for the sake of brevity), which order has been approved by the first respondent – State, by order dated 11/01/2016, bearing No.HD.05.SST.2016 and also by the State Advisory Board on 23/01/2016. As a result of the said orders, the petitioner has been detained for a period of twelve months from 02/01/2016.

2. According to the petitioner, he has completed his primary education and is eking out his livelihood by doing unskilled work. He is living with his wife and children at Shiyatalab, Raichur and hails from a very poor family. The petitioner was arrested on 02/01/2016, under Section 3(2) of the Act. The reasons cited for his detention are that cases have been registered against him within the limits of Sadarbazar Police Station, for the offences punishable under Sections 273, 284, 32 & 34 of IPC r/w the provisions of Karnataka Excise Act. Details of ten - 4 - cases have been given along with the crime numbers in Paragraph No.7 of the petition.

3. It is the case of the petitioner that he has been accused and acquitted in three cases under Sections 273, 284, 32 and 34 of IPC r/w Karnataka Excise Act and that five cases are pending for trial and two cases are registered under Section 110 (G) of Code of Criminal Procedure, 1973 and that the petitioner has been released on executing a bond. Petitioner has contended that according to the respondent–authorities, petitioner deserves to be detained under the Act, since he is continuously engaged in the sale of spurious toddy since the year 2008 onwards and cases have been registered against him. That members of public, who have been cited as witnesses in the pending cases are not adducing evidence on account of the activities of the petitioner. According to the petitioner that is an incorrect presumption. That the order of detention has been passed without following due process of law at the - 5 - instance of the respondent – police, which is an arbitrary action. The petitioner is represented by his wife in this petition, since the petitioner being a detenu is unable to approach this court in order to challenge the detention.

4. The order of detention dated 02/01/2016 and the grounds for detention with enclosures in English, were furnished to the detenu on 05/01/2016 and the said order of detention has been approved by the State Government on 11/01/2016. Thereafter, order dated 04/02/2016 has been passed stating that the period of detention is for a period of twelve months from 02/01/2016, renewable every three months. Assailing the order of detention as well as Annexure “D”, which has confirmed the order dated 04/02/2016 and which states that the period of detention is for twelve months from 02/01/2016 by reviewing the same every three months, the writ petition has been preferred.-. 6 - Submissions:

5. We have heard learned counsel for petitioner and learned Addl. Advocate General, for respondents and perused the material on record.

6. The main contention urged on behalf of the petitioner is that the order of detention dated 04/02/2016 (Annexure “D”) could not have been for a period of twelve months. That the period of detention cannot be for twelve months at a stretch, as the proviso to sub-section (2) of Section 3 of the Act, categorically states that the order made by the Government under sub-section (2) shall not in the first instance, exceed three months, but the Government may, if satisfied that it is necessary so to do, amend such an order to extend such period from time-to-time by any period not exceeding three months at any one time. Placing reliance on the said proviso, petitioner’s counsel contended that the period of detention cannot exceed three months at any one time. But in the instant case, the order at Annexure - 7 - “D” dated 04/02/2016 categorically states that the period of detention is for twelve months from 02/01/2016. According to petitioner’s counsel that order is totally contrary to the judgment of the Hon’ble Supreme Court in case of Cherukuri Mani vs. Chief Secretary, Government of Andhra Pradesh and others [(2015) 13 SCC722 (Cherukuri Mani). Hence, petitioner’s counsel urged that Annexure “D” order dated 04/02/2016 being contrary to Section 3 of the Act and also, the dictum of the Hon’ble Supreme Court in the aforementioned case, the same ought to be quashed. Consequently, the initial order of detention dated 02/01/2016 would also have to be quashed as the detention itself has become illegal, was the submission.

7. Learned counsel next contended that there is no proximity or causal connection between the cases pending against him in various crime numbers and the order of detention. Drawing our attention to Annexure “B”, he submitted that the crime numbers - 8 - pertain to the orders of the year 2008 onwards and that the order of detention has been passed in January 2016 and therefore, based on those crime numbers, the order of detention could not have been made. He therefore, contended that the grounds of detention of the petitioner have no causal connection with the order of detention. In this regard, reliance was placed on the order of this court dated 17/07/2015, which is referred to later.

8. Learned counsel for the petitioner next contended that there has been no consideration of vital materials in the instant case, such as, grant of bail to the petitioner in certain criminal cases, which has vitiated the subjective decision of the detaining authority.

9. Reliance was placed on a decision of the Hon’ble Supreme Court in Rushikesh Tanaji Bhoite vs. State of Maharashtra [(2012) 2 SCC72 (Rushikesh Tanaji Bhoite), to contend that when a person is enlarged on bail by a competent criminal - 9 - court, great caution should be exercised in scrutinizing the validity of an order of preventive decision, which is based on the very same charge, which is to be tried by the criminal court. In that case, Hon’ble Supreme Court found that since the order of bail was neither placed before the detaining authority at the time of passing the order of detention nor the detaining authority was aware of the order of bail, the detention order was invalid. It was also held that certain offences referred to in the order of detention suffered from remoteness and want of proximity to the order of detention and therefore, could not be a basis for the detention order and hence, the order of detention was quashed.

10. Learned counsel submitted that this court by following the aforesaid decision in the case of Smt.Kalavathi vs. State of Karnataka and others [W.P.(H.C.).No.93/2015]. (Smt.Kalavathi), disposed of on 17/07/2015, found that out of 22 criminal cases, the detenu therein was acquitted in 12 cases and was - 10 - enlarged on bail in remaining ten cases. Except one offence referred to in the order of detention, all other cases suffered from remoteness and want of proximity to the order of detention. Hence, the order of detention was held not sustainable and was set aside. According to petitioner’s counsel, in the instant case, in the order of detention dated 02/01/2016, reference was made to eight cases arising under Indian Penal Code and Karnataka Excise Act. When the petitioner is on bail in two cases and that those cases pertain to the year 2008, the same cannot be said to have any proximity in the order passed on 02/01/2016. Learned counsel also drew our attention to the fact that the petitioner is on bail in several cases and therefore, he could not have been detained on the basis of those cases in which he is on bail.

11. In substance, petitioner’s counsel placed strong reliance on the decision of the Hon’ble Supreme Court in Cherukuri Mani to contend that in the absence of there being any renewal of the - 11 - detention order every three months, the order of detention for a period of twelve months from 02/01/2016 is illegal. He submitted that the detention order may be quashed and petitioner be released.

12. Per contra, learned Additional Advocate General (A.A.G.) appearing for the respondent – State, drew our attention to the scheme of the Act and contended that Section 3 gives the power to make orders of detention, while Section 4 pertains to the execution of detention orders. Under Section 8 grounds of detention have to be disclosed to a person affected by the order. That once 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 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 detenu, and in case where the order has been made by an officer, also the report by such officer under sub-section (3) - 12 - of Section 3. The procedure of the Advisory Body is delineated in Section 11. In any case where the Advisory Body has reported that there is, in its opinion, sufficient cause for the detention of a person, the State Government may confirm the detention order and continue the detention of the person concerned for such period, not exceeding the maximum period specified in Section 13, as they think fit. But if the Advisory Board reports that there is no sufficient cause for the detention of the person concerned, the State Government has to revoke the detention order and cause the person to be released forthwith.

13. Learned A.A.G. drew our attention to Section 13 of the Act, which prescribes the maximum period for which any person may be detained in pursuance of any detention order made under the Act, which has been confirmed under Section 12 to be twelve months from the date of detention. Section 14 pertains to revocation of detention orders or - 13 - modification thereof by the State Government notwithstanding that the order has been made by an officer mentioned in sub-section (2) of Section 3.

14. While adverting to Section 3 of the Act, it was the contention of the learned A.A.G. that under sub-section (1) thereof, the State Government has the power to pass an order of detention. Under sub- section (2) the power of the State Government is delegated to a District Magistrate or Commissioner of Police. Such a delegation must be, having regard to the circumstances prevailing or likely to prevail in any local area and the State Government being satisfied that it is necessary to delegate the power to a District Magistrate or a Commissioner of Police and such delegation is made by an order in writing to the effect that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied, exercise powers conferred under sub-section (1) of Section 3. He emphasized the fact that delegation must be by an order in writing - 14 - and the period of delegation must also be specified in the order. He submitted that under proviso to sub- section (2) of Section 3, the period specified in the order of delegation made by the Government shall not, in the first instance, exceed three months. But the State Government may, if satisfied that it is necessary to do so, amend such order to extend such period from time-to-time by any period not exceeding three months at any one time. Thus, the extension of the period of delegation has to be only for a period up to three months at one time. Learned A.A.G. therefore contended that the proviso to sub-section (2) of Section 3 has nothing to do with the period of detention but it is relatable to the period of delegation which can be extended from time-to-time but for a period not exceeding three months at any one time. In other words, he submitted that the period of delegation by the State Government to a District Magistrate or a Commissioner of Police is distinct from the period of detention which can be ordered by the State Government under sub-section (1) of Section 3.-. 15 - He further submitted that in either case, a person cannot be detained for a period beyond twelve months from the date of detention. According to learned A.A.G., where the order of detention is passed by the State Government under sub-section (1) of Section 3 or by the District Magistrate or a Commissioner of Police as a delegate of the State Government, the maximum period of detention is twelve months as mandated under Section 13 of the Act.

15. Learned A.A.G. placed reliance on a decision of three judge Bench of the Hon’ble Supreme Court in Mrs.T.Devaki vs. Government of Tamil Nadu and others [AIR1990SC1086 (T.Devaki), in support of his contentions. According to him, in the said case, the Hon’ble Supreme Court has held that on a reading of Section 3 of Tamil Nadu Act, (which according to learned A.A.G. is in pari materia with Section 3 of the Act), if the State Government is satisfied that it is necessary to extend the period of delegation, it may amend its order, extending such - 16 - period from time-to-time but at no point of time, the extension shall be for a period beyond three months as per the proviso to sub-section (2) of Section 3 of the Act. Further, neither sub-section (1) nor sub- section (2) of Section 3 of the Act would require the detaining authority to specify the period of detention for which a detenu is to be kept under detention. Also, when once the Advisory Board forms an opinion that there was sufficient cause for detention of a person, then the State Government may confirm the detention order and continue the detention of the person concerned for such period not exceeding the maximum period as specified in Section 13 of the Act, which is twelve months from the date of detention. The State Government has, however, power to revoke the detention or modify it at any time it may think proper. Placing reliance on Paragraphs 9 and 10 of the judgment in the case of T.Devaki, learned A.A.G. contended that the period mentioned in sub-section (2) of Section 3 of the Act refers to a period of - 17 - delegation which has no reference at all to the period for which a person may be detained.

16. Learned A.A.G. took us through the judgment of the Hon’ble Supreme Court in Chuerukuri Mani, to contend that Section 3 of the Andhra Pradesh Act, which is considered in that case is also in pari materia with Section 3 of the State Act particularly, the proviso to Section 3(2) of the Act. He submitted that the Hon’ble Court in the said case has held that whether the State Government itself passes the order of detention or delegates its power to the District Magistrate or Commissioner of Police to pass an order of detention, the only difference is that the order of detention passed by the Government would remain in force for a period of three months in the first instance unless approved by the Advisory Board, whereas a similar order passed by the District Magistrate or Commissioner of Police shall remain in force for an initial period of twelve days unless in the meantime it has been approved by the Government as stated in - 18 - sub-section (3) of Section 3 of the Act, which is so even under the Karnataka Act.

17. Learned A.A.G. further submitted that Section 3 of the Andhra Pradesh Act is also in pari materia with Section 3 of the Act. The Hon’ble Supreme Court, while interpreting the proviso to sub- section (2) of Section 3 of the Andhra Pradesh Act in Cherukuri Mani, has held that an order of detention would in the first instance be in force for a period of three months even if it is passed by the State Government and the Government alone is conferred with the power to extend the period beyond three months. Such extension however, cannot exceed three months at a time. The judgment states that, if the Government intends to detain an individual under the Act for the maximum period of twelve months, there must be an initial order of detention for a period of three months, and atleast, three orders of extension for a period not exceeding three months each. The Hon’ble Supreme Court in the aforesaid - 19 - case has interpreted the expression “extend such period from time to time by any period not exceeding three months at any one time”, to mean that the Government cannot direct detention for a period of twelve months at a stretch. That on the aforesaid interpretation, the order of detention passed under the Andhra Pradesh Act was quashed by the Hon’ble Supreme Court.

18. Learned A.A.G. contended that the judgment of the Hon’ble Supreme Court by a Bench of two Hon’ble Judges in Cherukuri Mani, is contrary to the dictum of a Bench of three Hon’ble Judges in the case of T.Devaki. He contended that in such a situation, the judgment of the Larger Bench would have to be followed and applied. According to him, if the ratio of T.Devaki is to apply in this case, then the order of detention dated 02/01/2016 as well as the subsequent order dated 04/02/2016 under which it has been held that the order of detention is for a - 20 - period of twelve months w.e.f. 02/01/2016 is perfectly legal.

19. Learned A.A.G. further drew our attention to Annexure “D” order dated 04/02/2016 to contend that while confirming the order of detention for a period of twelve months from 02/01/2016, the said order also refers that for every three months there would be a review of the said order and in the event there are grounds for continuation of the order of detention it would be continued for the maximum period of twelve months from 02/01/2016. In the circumstances, learned A.A.G. contended that the confirmatory order dated 04/02/2016 has been passed after approving the order of detention passed by the Deputy Commissioner – cum- District Magistrate, Raichur on 11/01/2016.

20. Learned A.A.G. submitted with reference to order dated 30/06/2016, which is an Annexure to statement of objections, that the order of detention has been reviewed in the instant case wherein, it has - 21 - been clearly mentioned that the order of detention dated 02/01/2016, was approved on 11/01/2016 by the State Government and reviewed on 01/04/2016 and extended for a period of three months from 02/04/2016 to 01/07/2016 and that on 30/06/2016, the order has been reviewed and extended from 02/07/2016 to 01/10/2016. Therefore, liberty of the petitioner has been safeguarded by the State Government which has reviewed the order of detention passed by the Deputy Commissioner, Raichur, on 02/01/2016 within a period of three months and from time-to-time.

21. Learned A.A.G further contended that the order of detention is based on various cases arising under the Indian Penal Code and Karnataka Excise Act from 2008 to 2015 and that those cases indeed have proximity to the order of detention and they are not remote. He further submitted that the petitioner is not on bail in all the cases but only in cases pertaining to Crime Nos.84/2013 and 133/2013 and he may - 22 - have been acquitted in Crime Nos.14/2008, 146/2009 and 132/2010, but the other cases are pending as against him.

22. Learned A.A.G. contended that there is no merit in the petition and the same may be dismissed. Judicial Precedent:

23. It is necessary to refer to the judgments of the Hon’ble Supreme Court as well as judgments of this court before we proceed to consider the rival contentions on merits.

24. Learned counsel for the petitioner has placed reliance on Cherukuri Mani, while, learned A.A.G. has relied upon T.Devaki, in support of their respective contentions. Hence, it is necessary to consider those judgments of the Hon’ble Supreme Court in detail. (a) Cherukuri Mani: (i) In Cherukuri Mani, the facts are that the Collector and District Magistrate, East Godavari - 23 - District, Andhra Pradesh, had issued a preventive detention order on 30/09/2013 under the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short, “the Andhra Pradesh Act”), stating that the husband of the appellant (detenu) therein, had all the attributes to be called as a “goonda” as envisaged under Section 2 (g) of the Act. It was also mentioned that he was involved in several cases of theft of government and private properties as well as cases of destruction of public properties and his anti- social activities were harmful to the society and general public and eleven cases had been registered against him. After having served a copy of the order along with the grounds of detention, the detenu was taken into custody and from 05/10/2013, he was detained. On the basis of the recommendation of the Collector and after obtaining a report from the Advisory Board, the Government of Andhra Pradesh by its order dated 06/11/2013, directed detention of - 24 - the detenu for a period of twelve months from the date on which he was detained i.e., 05/10/2013. The said detention was unsuccessfully challenged by the detenu’s wife before the High Court of Andhra Pradesh. Being aggrieved by that order, the matter arose before the Hon’ble Supreme Court. The question for consideration before the Hon’ble Supreme Court was whether the State Government had the power to pass a detention order to detain a person at a stretch, for twelve months under the provisions of the said Act. (ii) Section 3 of the Andhra Pradesh Act was considered and interpreted. The said section empowers the detention of certain category of persons as defined under the Act. It also relates to the manner of passing the order of detention as well as the duration. The proviso to sub-section (2) of Section 3 of the Andhra Pradesh Act was interpreted by the Hon’ble Supreme Court. Section 3 of the Andhra Pradesh Act reads as under:- - 25 - “3. Power to make orders detaining certain persons : (1) The Government may, if satisfied with respect to any bootlegger, dacoit, drug-offender, goonda, immoral traffic offender or land-grabber that with a view to preventing 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 person 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 Government are satisfied that it is necessary so to do, they 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 said sub-section: Provided that the period specified in the order made by the Government under this sub- section shall not in the first instance, exceed three months, but the Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period - 26 - from time to time by any period not exceeding three months at any one time. (3) When any order is made under the section by an officer mentioned in Sub-section (2), he shall forthwith report the fact to the 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 twelve days after the making thereof, unless, in the meantime, it has been approved by the Government. On a reading of Section 3 of the Andhra Pradesh Act, the Hon’ble Supreme Court held that when the State Government or when the District Magistrate or Commissioner of Police or the authorities conferred with the power to pass an order of detention, the only difference is that the order of detention passed by the State Government would remain in force only for a period of three months in the first instance, whereas similar orders passed by the District Magistrate or Commissioner of Police would be in force for an initial period of twelve days only. The continuance of - 27 - detention beyond twelve days would depend upon the approval to be accorded by the Government in that regard, vide sub-section (3) of Section 3 of the said Act. Section 13 of the said Act mandates that the maximum period of detention under that Act is twelve months. (iii) While considering the proviso to sub- section (2) of Section 3 of the said Act, the Hon’ble Supreme Court has observed as under:- “12. Proviso to Sub-section (2) of Section 3 is very clear in its purport, as to the operation of the order of detention from time to time. An order of detention would in the first instance be in force for a period of three months. The Government alone is conferred with the power to extend the period, beyond three months. Such extension, however, cannot be for a period, exceeding three months, at a time. It means that, if the Government intends to detain an individual under the Act for the maximum period of 12 months, there must be an initial order of detention for a period of three months, and at least, three orders of extension for a period not - 28 - exceeding three months each. The expression "extend such period from time to time by any period not exceeding three months at any one time" assumes significance in this regard.

13. The requirement to pass order of detention from time to time in the manner referred to above, has got its own significance. It must be remembered that restriction of initial period of detention to three months, is nothing but implementation of the mandate contained in Clause (4)(a) of Article 22 of the Constitution of India. It reads as under: “22.(4) : No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless- (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: - 29 - Provided that nothing in this sub- clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under Sub-clause (b) of Clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of Clause (7).” 14. Where the law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in the same manner following the provisions of law, without deviating from the prescribed procedure. When the provisions of Section 3 of the Act clearly mandated the authorities to pass an order of detention at one time for a period not exceeding three months only, the Government Order in the present case, directing detention of the husband of the appellant for a period of twelve months at a stretch is clear violation of the prescribed manner and contrary to the provisions of law. The Government cannot direct or extend the period of detention up to the maximum period of twelve months in one stroke, ignoring the - 30 - cautious legislative intention that even the order of extension of detention must not exceed three months at any one time. One should not ignore the underlying principles while passing orders of detention or extending the detention period from time to time.

15. Normally, a person who is detained under the provisions of the Act is without facing trial which in other words amounts to curtailment of his liberties and denial of civil rights. In such cases, whether continuous detention of such person is necessary or not, is to be assessed and reviewed from time to time. Taking into consideration these factors, the Legislature has specifically provided the mechanism “Advisory Board” to review the detention of a person. Passing a detention order for a period of twelve months at a stretch, without proper review, is deterrent to the rights of the detenu. Hence, the impugned Government Order directing detention for the maximum period of twelve months straightaway cannot be sustained in law.

16. Even though, learned senior counsel appearing for the State sought for an adjournment beyond summer vacation, we are unable to accept his prayer for the simple reason that maximum part of the period of - 31 - detention of the detenu is going to complete by the end of summer vacation. Undisputedly, the detenu was detained on 5-10- 2013 which means that he remained under detention for about seven months at a stretch without any periodical review as envisaged by law. We are, therefore, of the considered opinion that the detention order passed by the Government of Andhra Pradesh in this case is in contravention to the provisions of law. On this ground alone, without going into other issues, we thought this appeal has to be allowed and the order of detention has to be quashed.

17. We accordingly allow the appeal quashing the detention order issued by the Government of Andhra Pradesh and setting aside the impugned judgment of the High Court. The detenu shall be set at liberty forthwith.” (b) T.Devaki: (i) In T.Devaki’s case, a three Judge Bench of the Hon’ble Supreme Court was considering a petition filed under Article 32 of the Constitution of India, challenging the validity of the detention of the petitioner’s husband under the order of the Collector and District Magistrate of Kamarajar District, - 32 - Virudhunagar, Tamil Nadu, dated 15/08/1989, issued under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Forest-offenders, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (hereinafter, referred to as “the Tamil Nadu Act”). The detention was pursuant to an incident which took place on 29/07/1989, on which date a Seminar on Irrigation was held at Virudhunagar. The proceedings of the seminar came to an abrupt halt for a while. The detenu was taken into custody and was enlarged on bail by the Sessions Judge on 03/08/1989. Thereafter, the District Magistrate and Collector of Kamarajar, issued the impugned detention order after 17 days of the aforesaid incident under Section 3(1) of the Tamil Nadu Act. The petition filed under Article 32 was heard by a Division Bench of two Hon’ble Judges of the Supreme Court. They found that there was a conflict of decisions of the Supreme Court in Commissioner of Police vs. Gurubux Anandram Biryani [1988 (Supp) SCC568 (Gurubux Biryani) - 33 - and Ashok Kumar vs. Delhi Administration [AIR1982SC1143 (Ashok Kumar) on the question of validity of detention order on its failure to specify the period of detention and the matter was referred to and heard by a Bench of three Hon’ble Judges. (ii) Section 3 of the Tamil Nadu Act was considered particularly, sub-section (2) along with the proviso. The contention in that case was that the impugned detention order did not specify the period for which the detenu was required to be detained and hence, the order was illegal. Refuting the said contention, the Hon’ble Supreme Court analyzed Section 3 of the Tamil Nadu Act. For the sake of immediate reference, it is extracted as under:-

"3. Power to make orders detaining certain persons- (1) The State Government may, if satisfied with respect to any bootlegger or drug- offender (or forest offender) or goonda or immoral traffic offender or slum grabber that with a view to prevent him from acting in any - 34 - manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person 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 are satisfied that it is necessary so to do, they 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 said sub-section: Provided that the period specified in the order made by the State Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time. (3) When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the State - 35 - 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 twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government."

(iii) According to the Hon’ble Supreme Court, Section 3(1) of the aforesaid Act confers power on the State Government to detain a person under that Act with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. Section 3(2) empowers the State Government to delegate its power as conferred on it under sub-section (1) to a District Magistrate or a Commissioner of Police, if it is satisfied that the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of the District Magistrate or the Commissioner of Police, make it necessary to delegate the power to him. Section 3(3) requires that where detention is made by the delegate of the State Government, namely, the District Magistrate or the - 36 - Commissioner of Police, they should report the fact to the State Government together with the grounds on which the order may have been made and such other particulars as, in their opinion, may have a bearing on the matter. A detention order made by a District Magistrate or Commissioner of Police in exercise of their delegated authority does not remain in force for more than twelve days after the making thereof, unless in the meantime the detention order is approved by the State Government. Section 3 requires the detaining authority to communicate to the detenu, grounds on which, the order is made within five days from the date of detention to enable the detenu to make representation against the order to the State Government. Section 10 of the Tamil Nadu Act requires the State Government to place before the Advisory Board the detention order and the grounds on which such order may have been made along with the representation made by the detenu as well as the report of the officers made under Section 3(3) of the said Act within three weeks from the date of - 37 - detention. Under Section 11 the Advisory Board is required to consider the materials placed before it and after hearing the detenu, to submit its report to the State Government within seven weeks from the date of detention of the person concerned. In a case where the Advisory Board forms an opinion, that there was no sufficient cause for the detention, the State Government shall revoke the detention order but if in its opinion sufficient cause was made out, the State Government may confirm the detention order and continue the detention of the person concerned for such period not exceeding the maximum period as specified in Section 13 of the Act. Section 13 provides the maximum period for which a person can be detained in pursuance of any detention order made and confirmed under the Act. According to this provision the maximum period of detention shall be twelve months from the date of detention. The State Government has, however, power to revoke detention order at any time, it may think proper.-. 38 - (iv) While analyzing the aforesaid provisions at Paragraph No.10 of the judgment, the Hon'ble Supreme Court has observed as under:- “10. Provisions of the aforesaid Sections are inbuilt safe guards against the delays that may be caused in considering the representation. If the time frame, as prescribed in the aforesaid provisions is not adhered, the detention order is liable to be struck down and the detenu is entitled to freedom. Once the order of detention is confirmed by the State Government, maximum period for which a detenu shall be detained can not exceed 12 months from the date of detention. The Act nowhere requires the detaining authority to specify the period for which the detenu is required to be detained. The expression "the State Government are satisfied that it is necessary so to do, they may, by order in writing direct that during such period as may be specified in the order" occurring in sub-section (2) of Section 3 relates to the period for which the order of delegation issued by the State Government is to remain in force and it has no relevance to the period of detention. The Legislature has taken care to entrust the power of detention to the - 39 - State Government, as the detention without trial is a serious encroachment on the fundamental right of a citizen, it has taken further care to avoid a blanket delegation of power, to subordinate authorities for an indefinite period by providing that the delegation in the initial instance will not exceed for a period of three months and it shall be specified in the order of delegation. But if the State Government on consideration of the situation finds it necessary, it may again delegate the power of detention to the aforesaid authorities from time to time but at no time the delegation shall be for a period of more than three months. The period as mentioned in Section 3(2) of the Act refers to the period of delegation and it has no relevance at all to the period for which a person may be detained. Since the Act does not require the detaining authority to specify the period for which a detenu is required to be detained, order of detention is not rendered invalid or illegal in the absence of such specification.” (emphasis by us) (v) In that case, it is further held that they did not agree with the observations made by the Hon’ble - 40 - Supreme Court in Gurubux Biryani’s case (supra). That case pertained to Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug-offenders Act, 1981 (hereinafter, referred to as “the Maharashtra Act”). The Hon’ble Supreme Court held that Section 3 of the Maharashtra Act was identical with Section 3 of the Tamil Nadu Act. Section 3 of Maharashtra Act does not require the State Government, District Magistrate or a Commissioner of Police to specify the period of detention in the order made by them for detaining any person with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order. Section 3(1) which confers power on the State Government to make an order directing detention of a person, does not require the State Government to specify the period of detention. Similarly, sub-sections (2) or (3) of Section 3 do not require the District Magistrate or the Commissioner of Police to specify the period of detention while exercising their powers under sub- section (1) of Section 3. According to the Hon’ble - 41 - Supreme Court, the observations made in Gurbux Biryani's case that the scheme of the Maharashtra Act was different from the provisions contained in other similar Acts and that Section 3 of the Act contemplated initial period of detention for three months at a time are not correct. The scheme as contained in other Acts providing for the detention of a person without trial, is similar. In this connection, the Hon’ble Supreme Court scrutinized, the Preventive Detention Act, 1950, the Maintenance of Internal Security Act, COFEPOSA Act, National Security Act and according to the Hon’ble Supreme Court, in none of these Acts the detaining authority is required to specify the period of detention while making the order of detention against a person. (vi) The Hon’ble Supreme Court further held that the order of detention is not rendered illegal merely because it does not specify the period of detention. It is also held as under:- - 42 - “13. This Court has consistently taken the view that an order of detention is not rendered illegal merely because it does not specify the period of detention. A Constitution Bench of this Court in Ujagar Singh vs. The State of Punjab, [1952]. 3 SCR756(AIR1952SC350 while considering validity of detention order made under Section 3 of the Preventive Detention Act, 1950 held that non-specification of any definite period in a detention order made under Section 3 of the Act was not a material omission rendering the order invalid. In Suna Ullah Butt v. State of Jammu & Kashmir, [1973]. 1 SCR870(AIR1972SC2431 validity of detention order made under Jammu and Kashmir Preventive Detention Act 1964 was under challenge on the ground that the State Government while confirming the detention order under Section 12 of the Act had failed to specify the period of detention. The Court held that since the State Government had power to revoke or modify the detention order at any time before the completion of the maximum period prescribed under the Act, it was not necessary for the State Government to specify the period of detention. In Suresh Bhojraj Chelani vs. State of Maharashtra, [1983]. 1 SCC382(AIR1983SC181, while considering the validity of the - 43 - detention order made under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 this Court rejected similar submission made on behalf of the detenu that order of detention was vitiated as the Government had failed to mention the period of detention while confirming the order of detention. The Court held that the COFEPOSA Act did not require the detaining authority to mention the period of detention in the order of detention. When no period is mentioned in an order, the implication is that the detention is for the maximum period prescribed under the Act.” On the basis of the observations made in the aforementioned decisions, the Hon’ble Supreme Court referred to the detention order passed under Section 3 of the National Security Act in the case of Ashok Kumar and held that it is not necessary for the detaining authority to specify the period of detention while making the order of detention. (vii) While holding that the observations in Gurubux Biryani’s case were incorrect and that the observations in Ashok Kumar’s case were correct, the - 44 - Hon’ble Supreme Court held that in the absence of any period being specified in the order of detention, the detenu is required to be under detention for the maximum period prescribed under the Act, but it is always open to the State Government to modify or revoke the order even before the completion of the maximum period of detention. In that case, it was held that the order of detention was not illegal on account of the detaining authority’s failure to specify the period of detention in the order.

25. The divergent decisions of this court on the aspect under consideration are as under:- (a) A Division Bench of this court in Smt.Meenaxi vs. Additional District Magistrate and Police Commissioner, Hubli-Dharwad City and Others [2008 (2) KLJ712(DB)]., has opined as in T.Devaki as under:- “15. By plain reading of Section 3 of the Act, makes it very clear that Sub-section (1) of Section 3 can be directly exercised by the State Government. If the Government is - 45 - satisfied that any bootlegger or drug-offender or gambler or a person involved in immoral traffic offender or slum-grabber, with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, the Government can make an order of detention. The Government can delegate its power under Sub-section (2) of Section 3 of the Act, either to the District Magistrate or the Commissioner of Police. While exercising such powers, the period of delegation in any case shall not exceed three months and it can be further extended from time to time for any period not exceeding three months on any one time. Therefore, we are of the opinion that proviso to Sub-section (2) of Section 3 of the Act, is applicable only for the purpose of delegation of power and not to pass any order of detention. The order of detention can be passed only by the State Government exercising power under Section 12 of the Act. In this case, the Government has exercised its power under Section 12 of the Act and has passed an order ordering to detain the husband of the petitioner for a period of 12 months from the actual date of detention. Therefore, we do not see any reasons to interfere with the orders of the Government.” - 46 - (b) Further, in Hanamantha vs. The State of Karnataka and others [W.P.(H.C.)No.200012/ 2014]. (Hanamantha), disposed of on 16/09/2014, it has been held therein that the State Government on receipt of the report of the Advisory Board, wherein, it was stated that there were sufficient grounds of detention of detenu, confirmed the order of detention for a period of one year with effect from 15/05/2014, by exercising power under Section 13 of the Act. That power was not one under Section 3(2) of the Act. Further, it is held that it is only when power is exercised by the State Government under Section 3(2) of the Act by an order of delegation to the District Magistrate or a Commissioner of Police, then in such a case, the State Government can pass the order of delegation for a period not exceeding three months at one time. The dictum of the Hon’ble Supreme Court in T.Devaki is followed while making the said observations.-. 47 - (c) Recently, a Division Bench of this court in Earanna vs. The State of Karnataka and others [W.P.(H.C.)No.200005/2016 disposed on 15/06/2016]., on a comparison of Section 3 of the Karnataka Act with Section 3 of the Andhra Pradesh Act which is considered in Cherukuri Mani observed that the only difference between an order of detention passed by the State Government and an order of detention passed by District Magistrate or a Commissioner of Police is that the order of detention passed by the Government would remain in force for a period of three months in the first instance whereas similar orders passed by the District Magistrate or Commissioner of Police, can remain in force for a period of twelve days only. The continuance of detention would depend upon the approval to be accorded by the Government under sub-section (3) of Section 3 of the Act. While following the judgment of the Hon’ble Supreme Court in Cherukuri Mani, it is observed by the Division Bench that the Supreme Court has interpreted the scheme of the Act as not - 48 - providing for extension of the period of detention beyond a period of three months at a time. In other words, the Division Bench has held that if the Government intends to detain an individual under the Act for the maximum period of twelve months, there must be an initial order of detention for a period of three months and atleast three orders of extension, for a period not exceeding three months each, and that the requirement to pass orders of detention from time to time in the manner as stated above was nothing but an implementation of the mandate contained in clause - 4(a) of Article 22 of the Constitution of India. It is further observed that it is for this reason that the law has provided the mechanism of constituting an Advisory Board to review the detention of a person and hence, passing of detention order for a period of twelve months, at a stretch, without proper review, is a deterrent to the rights of the detenu and therefore, the Division Bench has held that - 49 - such an order cannot be sustained in law. The Division Bench has also noted that the above view has been reiterated and followed in Basavarajayya Swami vs. State of Karnataka in Criminal Appeal No.267/2016 dated 05/04/2016. But in another decision of the Hon’ble Supreme Court in D.M.Nagaraja vs. Government of Karnataka [(2011) 10 SCC215, (D.M.Nagaraja), the order of detention, detaining a person for a period of twelve months has been approved, but the Division Bench in Earanna’s case has opined that the issue which has arisen in Eranna’s case (as also in the instant case), did not directly arise in D.M.Nagaraja, and therefore, that decision would not assit the State in seeking to sustain the impugned order of detention. Therefore, placing reliance in Cherukuri Mani’s case, which has been followed in Basavarajayya Swami’s case, the Division Bench in Earanna’s case quashed the detention order reserving liberty to the - 50 - respondents to take any further step against the petitioner therein, in accordance with law. (d) Similarly, in Chandrappa N. vs. State of Karnataka and otehrs [W.P.(H.C.).No.79/3025, disposed on 07/07/2015]., a Division Bench of this court has held that the initial order of detention therein was passed by the Commissioner of Police, Bangalore City [under Section 3(2)]. of the Act dated 03/02/2015 was confirmed by the State Government and the detention was continued up to twelve months subject to renewal of the detention every three months, which means that the initial order of detention passed by the Commissioner of Police, Bangalore City dated 03/02/2015, needed confirmation within three months from the date of the previous order, in order to continue the detention for the period of twelve months. That as there was no order of renewal of the detention order dated 03/02/2015 passed by the Commissioner of Police, Bangalore City, within a period of three months, as - 51 - directed in the impugned order dated 16/03/2015, the order of detention against the detenu dated 03/02/2015 was held to be unauthorized after 03/05/2015. In the circumstances, it was held that the detenu could not be continued in custody after 03/05/2015, as the State Government had not renewed the order of detention. Thus, in this case also, the decision of the Hon’ble Supreme Court in Cherukuri Mani was followed. Comparative Analysis of Cherukuri Mani, T. Devaki and present case:

26. A comparative analysis of the facts in the aforesaid two judgments with the present case are made as under: (a) In Cherukuri Mani, the initial order of detention dated 05/10/2013, passed by the Collector and District Magistrate, East Godavri District, under Section 3(2) of the Andhra Pradesh Act, was assailed along with the order dated 06/11/2013, which was passed by the Government of Andhra Pradesh after - 52 - obtaining a report from the Advisory Board. By order dated 06/11/2013, passed by the State Government, the period of detention was for a period of twelve months from the date from which he was detained i.e., 05/10/2013. The said order was passed after obtaining a report from the Advisory Board and the State Government ordered that the period of detention is twelve months from the date on which he was detained i.e., 05/10/2013. The Government of Andhra Pradesh did not state that period of detention was twelve months in the initial order of detention dated 05/10/2013. The period of twelve months was stated in the confirmatory order passed by the State Government subsequent to the opinion of the Advisory Board by passing a confirmatory order on 16/11/2015. Thus, the order prescribing the period of detention was passed by the Government of Andhra Pradesh at the stage subsequent to the consideration of the case of the Advisory Board and on perusal of the report of the Advisory Board.-. 53 - (b) In the case of T.Devaki, the initial detention order dated 15/08/1989 did not specify the period of detention. On that ground, the detention order was assailed in a petition filed under Article 32 of the Constitution. The order impugned in T.Devaki’s case was the initial detention order prior to the consideration of the case by the Advisory Board. One of the contentions raised was that order of detention did not specify the period of detention. No doubt, in T.Devaki’s case, the Hon’ble Supreme Court did not refer to Article 22(4)(a) of the Constitution, but it stated that the order of detention need not specify the period of detention but at the same time, it held that proviso to Section 3(2) had no nexus to the order of detention passed under Section 3(1) of the Act. In T.Devaki’s case, what was challenged was an order of detention and not a confirmatory order of the State Government i.e., the order was challenged without reference to the opinion given by the Advisory Board.-. 54 - (c) In the present case, the date of initial order of detention is 02/01/2016 passed under Section 3(2) of the Act and subsequently, an order was passed by the State Government on 11/01/2016, approving the detention order. The State Advisory Board considered the matter on 23/01/2016 and subsequently, on 04/02/2016, the State Government ordered that the period of detention is for a period of twelve months from 02/01/2016, renewable every three months (Annexure “D”). Grievance of the Petitioner Re: Period of Detention and Divergent Views on the Point:

27. The grievance of the petitioner is that the period of detention could not have been for a period of twelve months at a stretch. It is his contention that the same is contrary to the judgment of the Hon’ble Supreme Court in Cherukuri Mani.

28. Learned A.A.G. has brought to our notice order dated 30/06/2016 annexed to the statement of objections, to emphasize the fact that the order of - 55 - detention in the instant case has been reviewed within a period of three months and that the period of detention has been extended for a period of three months from 02/01/2016 to 01/04/2016, from 02/04/2016 to 01/07/2016 and from 02/07/2016 to 01/10/2016 and that even in accordance with the ratio of Cherukuri Mani, there has been a review of the order of detention periodically within three months. However, the contention of learned A.A.G. has been that the ratio of the decision in T.Devaki is correct, in which event, it is not necessary to review the period of detention every three months when the order of detention is made under Section 3(2) of the Act. That the proviso to Section 3(2) of the Act does not apply to the order of detention, but it is applicable to the order delegating the power of the State Government to the District Magistrate or the Commissioner of Police, as the case may be, so as to exercise the power of the State Government under Section 3(1) of the Act. According to learned A.A.G., the decision in T.Devaki, was not brought to the notice - 56 - of the Hon’ble Supreme Court when the Hon’ble Judges were hearing and deciding Cherukuri Mani’s case.

29. If the judgment of the Hon’ble Supreme Court in Cherukuri Mani, is to be applied to the present case, we find that even though the order of detention dated 04/02/2016 (Annexure “D”) specifies that the period of detention is for a period of twelve months from the date of detention, which is also the maximum period prescribed under Section 13 of the Act, nevertheless the State Government has reviewed the order of detention once every three months and the matter would have to rest on this aspect of the case. But we find that having regard to the ratio of the judgment of the Hon’ble Supreme Court in T.Devaki, it is not necessary to review the detention order every three months on the basis of the proviso to Section 3(2) of the Act when the same is passed by an authority specified under Section 3(2) of the Act.-. 57 - 30. Further, there have been divergent views expressed by various Benches of this court on this aspect of the matter: some, following the ratio laid down in T.Devaki while others applying the dictum in Cherukuri Mani. Therefore, we are persuaded to consider the issue in greater detail having regard to the scheme of the Act with particular emphasis on Section 3 of the Act. Section 3 of the Karnataka Act:

31. On a detailed consideration of the judicial dicta of the Hon’ble Supreme Court as well as this court and before applying them to the case at hand which arises under the State Act in light of rival contentions at the outset, it would be useful to extract Section 3 of the Act which reads as under: “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 - 58 - 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: Provided that the period specified in the order made by the Government under this sub- section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding- three months at any one time. (3) When any order is made under this section 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 - 59 - particulars as, in his opinion, have a bearing on the matter and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government.” The aforesaid provision is in pari materia with the Andhra Pradesh Act as well as the Tamil Nadu Act, which are extracted above. Under Section 3(1) of the Act, the State Government can in order to prevent a bootlegger or drug-offender or goonda or immoral traffic offender or slum grabber from acting in any manner prejudicial to the maintenance of public order, can make an order directing that such a person be detained. The State’s power to detain such a person can also be delegated to the District Magistrate of a District or Commissioner of Police. Such a delegation can be made if the State Government is satisfied that it is necessary to do so, by an order in writing, directing such District Magistrate or Commissioner of Police, to exercise power conferred under Section 3(1) of the Act, if such District Magistrate or Commissioner - 60 - of Police is satisfied to do so. Therefore, while Section 3(1) of the Act empowers the State Government to pass an order of detention, under Section 3(2), the State Government can delegate its power to a District Magistrate or a Commissioner of Police, as the case may be. Proviso to Section 3(2) is relevant for the purpose of this case. The proviso states that the period specified in the order made by the Government under Section 3(2) i.e., the order of delegation in the first instance, shall not exceed three months. Therefore, the initial order of delegation can be in operation for a maximum period of three months, but if the State Government is satisfied that it is necessary to amend the initial order of delegation, it can extend it, but the period of extension from time- to-time cannot exceed three months at a time. In other words, the initial order delegating the authority to detain a person mentioned in Section 3(1) of the Act to any District Magistrate or Commissioner of - 61 - Police, can hold good only for a maximum period of three months; the order of delegation beyond that period is illegal. However, if the order of delegation requires extension, then such extended period can be for a period of three months at any one time. Therefore, the initial order delegating a District Magistrate or Commissioner of Police to exercise power under Section 3(1) of the Act, can be extended from time-to-time, but the period of extension cannot exceed three months at a time.

32. At this stage, it is necessary to delineate on two aspects: one is with regard to the distinction between Section 3(1) and Section 3(2) of the Act. The second, is with regard to the prescription of the period of detention in the order of detention.

33. Does the power of detention, which could be exercised by the State Government under Section 3(1) of the Act have any nexus with the delegation of that power to an officer as stipulated in Section 3(2) - 62 - of the Act?. Secondly, does proviso to Section 3(2) of the Act have any nexus with Section 3(1) of the Act?.

34. We find that Section 3 enables an order of detention to be passed by two authorities. One, by the State Government under Section 3(1) and the other, by an officer mentioned under Section 3(2) on being delegated to do so by the State Government. Exercise of the power of detention under the aforesaid provisions is mutually exclusive. When the order of detention is passed by the State Government, the Section does not prescribe that it should be for a specified period or that the period of detention should be specified in the order of detention. But Section 9 of the Act prescribes that the State Government must refer the matter to the Advisory Board constituted under Section 9 of the Act within a period of three weeks from the date of detention of a person. The Advisory Board has to submit its report to the State Government within seven weeks of the detention of the person concerned. If the Advisory Board reports - 63 - that in its opinion there is sufficient cause for the detention of the person, then the State Government has to confirm the detention order. Once again no period of detention be specified. On the other hand, if the order of detention is passed under Section 3(2) of the Act by an officer referred to under the said sub- section, then the said order of detention can remain in force only for a period of twelve days, within which it has to be approved by the State Government. The order of detention passed under Section 3(2) of the Act is pursuant to delegation being made by the State Government or the officer concerned. Such a delegation can be for a period of three months at a time and not beyond that. In either case, i.e., whether the order is passed under Section 3(1) of the Act or under Section 3(2) of the Act, which has been approved by the State Government within twelve days thereof, the State Government has to refer the matter to the Advisory Board, which should give its opinion within three months from the date of order of detention. Therefore, in our view, the power - 64 - exercised by the State Government either under Section 3(1) or under Section 3(2) of the Act is distinct and there is no nexus between the two. The proviso to Section 3(2) deals with the period of delegation and not with the period of detention. Further, in our view, the proviso to Section 3(2) has no nexus to exercise of power under Section 3(1).

35. Further, under Section 3(1), which empowers the State Government to pass an order of detention no period of detention is stipulated. Therefore, when the State Government passes an order of detention under Section 3(1) of the Act without stipulating any period of detention, it is implied that the maximum period of detention is twelve months from the date of order of detention as mandated in Section 13 of the Act subject to confirmation by the Advisory Board within a period of three months from the date of approval as mandated in Article 22(4)(a) of the Constitution. But, when the District Magistrate or Commissioner of Police exercises - 65 - power under Section 3(2) of the Act pursuant to a delegation by the State Government then, in such a case, the order of detention can be only for a period of twelve days, in the first instance, unless in the meantime, it has been approved by the Government. This is stipulated in Section 3(3) of the Act. In fact, Section 3(3) states that when the order is made by the Officer under sub-section (2) of Section 3, then he shall forthwith report to the 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. Thus, the order of detention passed under Section 3(2) of the Act can remain in force for not more than twelve days after the making thereof, unless in the meantime the Government approves it. The stipulation in Section 3(3) of the Act is identical with the stipulation prescribed in the Andhra Pradesh Act as well as in the Tamil Nadu Act.-. 66 - Maximum Period of Detention vs. Period of Delegation:

36. At this stage, it is relevant to consider the scheme of the Act, which is in pari materia with the Andhra Pradesh Act as well as the Tamil Nadu Act. (a) Section 2 of the Act is the definition clause. Section 3 deals with the power to make orders detaining certain persons. The order of detention is executed in terms of Section 4 in the manner provided for the execution of warrants of arrest under Criminal Procedure Code, 1973. The power to regulate the place and conditions of detention are delineated in Section 5. As per Section 6 of the Act, the detention orders cannot be invalid or inoperative on certain grounds. Section 6-A states that the grounds of detention are severable. Section 7 stipulates the power in relation to absconding persons. The grounds of the order of detention have to be disclosed to the affected persons as stipulated in Section 8. The aforesaid aspects are applicable prior to the - 67 - consideration and approval of the order of detention by the Advisory Board. (b) Section 9 deals with the constitution of Advisory Boards. In every case where a detention order is made under the Act, whether under Section 3(1) or Section 3(2), as the case may be, the State Government has to 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 and in case where the order has been made by the officer, also the report by such officer under Section 3(3) of the Act. The said reference has to be made within three weeks from the date of detention of a person. The procedure of the Advisory Board is dealt with in Section 11 of the Act. The Advisory Board has to submit its report to the State Government within seven weeks from the date of detention of the person concerned under Section 11(1). The report of the Advisory Board has to also specify in a separate part thereof the opinion of the - 68 - Advisory Board, as to whether or not there is sufficient cause for the detention of the person concerned. If the Advisory Board reports that in its opinion there is sufficient cause for the detention of a person, the State Government may confirm the detention order and continue the detention of the person concerned for such period, not exceeding the maximum period specified in Section 13 as it thinks fit. The maximum period for which any person may be detained in pursuance of any detention order made under the Act which has been confirmed under Section 12 shall be twelve months from the date of detention. If the Advisory Board reports that in its opinion there is no sufficient cause for the detention of the person concerned then the State Government has to revoke the detention order and release the detenu forthwith. Thus, the order to be passed by the State Government at this stage would depend on the report of the Advisory Board.-. 69 - (c) Section 14 stipulates that the detention order may at any time be revoked or modified by the State Government notwithstanding that the order has been made by Advisory Board mentioned in Section 12. The revocation of the detention order would not come in the way of making a fresh detention order under Section 3 against the same person provided where no fresh facts have arisen after revocation, the maximum period for which such person may be detained in pursuance of the detention order cannot extend beyond the expiry of a period of twelve months from the date of detention under the earlier detention order. Section 15 deals with temporary release of detained person.

37. Thus, on a reading of the provisions of the Act conjointly, we find that there is no stipulation that the order of detention must specify the period of detention. But there is a safeguard in favour of the detenu under Section 3(3) of the Act, which stipulates that the order of detention shall be in force for a - 70 - period of twelve days only when it has been made under Section 3(2) of the Act unless in the meantime it has been approved by the State Government. Therefore, if there is no approval of the order of detention made by the officer under Section 3(2) of the Act by the State Government within twelve days, then the said order automatically lapses. But if there is an approval of such an order, then the detention would continue in terms of the period specified in the order of approval till the end of that period or if no such period is specified, then subject to the report of the Advisory Board and the subsequent order to be passed under Section 12 of the Act by the State Government, for the maximum period of twelve months from the date of detention. Thus, the State Government has to refer an order of detention which is made by it under Section 3(1) of the Act or by an officer specified in Section 3(2) of the Act to the Advisory Board within a period of three weeks from the order of detention and the Advisory Board must give its opinion within three months from the date of - 71 - detention as mandated under Article 22(4)(a) of the Constitution. If the Advisory Board reports that there is sufficient cause for the detention of the person concerned, then the State Government may confirm the detention order under Section 12 and continue the detention of the person concerned. But the period need not be specified in the confirmatory order also. If no such period is specified, then the maximum period of detention would be in terms of Section 13 of the Act i.e., for a period of twelve months from the date of detention. But if the period of detention is specified in the confirmatory order passed under Section 12 of the Act, then the detention would continue till such period. In any case, the period of detention cannot exceed the maximum period of twelve months stipulated in Section 13 of the Act. But where the Advisory Board in its opinion reports that there is no sufficient cause for the detention of the person concerned, the State Government has to revoke the detention order and release the person forthwith.-. 72 - 38. What emerges from the aforesaid discussion is that the maximum period of detention prescribed under the Act is twelve months from the date of detention. Thus, when a detention order is made under Section 3(1) by the State Government or under Section 3(2) by an officer mentioned therein, which order has been approved within twelve days by the State Government, under no circumstance, can it extend beyond twelve months from the date of detention. Therefore, it is not necessary that the order of detention must specify the period of detention. It could however, specify a period lesser than twelve months. Thus, an order of detention, either under Section 3(1) or Section 3(2) of the Act or a confirmatory order passed by the State Government subsequent to the report of the Advisory Board under Section 12(1) of the Act, need not specify the period of detention. But if it specifies the period of detention then, care must be taken to ensure that the detention does not exceed twelve months from the date of detention.-. 73 - 39. In light of the above provisions and the interpretation thereof, in our view, the following expression in proviso to Section 3(2) of the Act, “period specified in the order made by the Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time” has no nexus to the period of detention. The expression "period” in proviso to Section 3(2) refers to the expression “period” in Section 3(2). Section 3(2) deals with delegation of the power of detention by the State Government to a District Magistrate or a Commissioner of Police to exercise the power of detention. That delegation must be by an order in writing after the State Government being satisfied that it is necessary to delegate its power to such officer. Under the proviso, the period specified in the - 74 - order of delegation made by the Government under Section 3(2) in the first instance, should not exceed three months, but if the State Government is satisfied that it should extend such period of three months then, it could do so from time to time by any period, but the extended period of delegation should not exceed three months at a time. Therefore, the State Government can in the first instance delegate the power of detention to the District Magistrate or Commissioner of Police for a period of only three months initially and if satisfied can extend such period of delegation, but every extended period should not exceed a period of three months. Thus, there can be any number of extensions of the period of delegation but it should always be for a maximum period of three months at a time. But the Hon’ble Supreme Court in Cherukuri Mani, has interpreted the proviso to mean that when an order of detention is made by the State Government under Section 3(1) of the Act, then the period of detention can be only for a period of three months in the first instance. A similar order - 75 - made under Section 3(2) would be for an initial period of twelve days unless approved by the State Government. According to the Hon’ble Supreme Court, if the State Government intends to detain an individual under the Act for the maximum period of twelve months, there must be an initial order of detention for a period of three months and atleast three orders of extension for a period not exceeding three months each. In support of such an interpretation, reliance has been placed on Article 22(4)(a) of the Constitution.

40. A reading of Article 22(4)(a) would clearly indicate that no law providing for preventive detention shall authorize the detention of a person for a period beyond three months. Thus, an order of detention cannot be for a period longer than three months unless, the Advisory Board has reported before the expiration of the said period of three months that there is, in its opinion such sufficient cause for detention. A reading of Article 22(4)(a) would make - 76 - it clear that even if the order of detention does not prescribe any period of detention, such an order of detention cannot be in force for a period beyond three months, unless the Advisory Board before the expiration of three months opines that there is sufficient cause for detention. In other words, if the Advisory Board does not give its opinion within a period of three months from the date of detention, in such a case, the order of detention beyond the period of three months would become illegal and not otherwise or, if within the period of three months, the Advisory Board opines that there was no sufficient cause for such detention then, the State Government would have to release the detenu forthwith.

41. Hence, Article 22(4)(a) in substance deals with the order of detention and has nothing to do with the delegation of the power of detention by the State Government to an officer as stipulated under Section 3(2) of the Act. In fact, under Section 9 of the Act, the State Government has to refer the matter to the - 77 - Advisory Board within three weeks from the date of detention irrespective of whether the detention order is passed under Section 3(1) or Section 3(2) of the Act and the Advisory Board has to give its opinion within seven weeks from the date of detention. That would totally make it ten weeks. As stipulated in Article 22(4) (a) of the Constitution, if in a given case, once the Advisory Board gives its opinion within the stipulated period of three months, then in our view, Article 22(4)(a) would no longer be applicable. Thus, Article 22(4)(a) applies at the initial stage of passing of the order of detention by the State Government or by an officer who has been delegated by the State Government and whose order has been approved by the State Government within a period of twelve days from the date of detention and not at the stage subsequent to the report of the Advisory Board. Depending upon the opinion of the Advisory Board, under Section 12 of the Act, the State Government can revoke the order of detention and release the detenu forthwith or may confirm the detention order - 78 - and continue the detention of the person concerned for any period not exceeding the maximum period of twelve months, which is stipulated in Section 13 of the Act. Therefore, when the State Government passes a confirmatory order under Section 12 of the Act after receipt of the report from the Advisory Board then, such a confirmatory order need not be restricted to a period of three months only. It can be beyond a period of three months from the date of initial order of detention, but up to a maximum period of twelve months from the date of detention.

42. We reiterate that the period of three months stipulated in Article 22(4)(a) of the Constitution is relatable to the initial period of detention upto the stage of receipt of report of the Advisory Board and does not have any bearing on the period of detention, which is continued subsequent to the confirmatory order being passed by the State Government on receipt of the report of the Advisory Board. The continuation of the detention pursuant to - 79 - the confirmatory order passed by the State Government need not also specify the period of detention; neither is it restricted to a period of three months only. If any period is specified in the confirmatory order, then the period of detention would be upto such period, if no period is specified, then it would be for a maximum period of twelve months from the date of detention. The State Government, in our view, need not review the orders of detention every three months after it has passed the confirmatory order.

43. Thus, in our view, the period of three months specified in Article 22(4)(a) is relatable to the period of detention prior to the report of the Advisory Board and not to the period of detention subsequent thereto. Further, the period of detention in terms of Article 22(4)(a) cannot be in force for a period beyond three months, if by then, the Advisory Board has not given its opinion holding that there is sufficient cause for such detention. Therefore, the Advisory Board - 80 - would have to give its opinion within a period of three months from the date of detention and depending upon the opinion expressed by the Advisory Board, the State Government can under Section 12 of the Act, either confirm the order of detention or continue the detention of the person concerned for a maximum period of twelve months as specified in Section 13 of the Act or release the detenu forth with, as the case may be. If the order of detention is confirmed, then the period of detention can be extended up to the maximum period of twelve months from the date of detention. With respect, we observe that it is not necessary that before the expiration of three months, it is necessary for the State Government to review the order of detention as has been expressed by the Hon’ble Supreme Court in Cherukuri Mani. The Act does not contemplate a review of the detention order once the Advisory Board has opined that there is sufficient cause for detention of the person concerned and on that basis, a confirmatory order is passed by the State Government to detain a person for the - 81 - maximum period of twelve months from the date of detention. On the other hand, when under Section 3(2) of the Act, the State Government delegates its power to the District Magistrate or a Commissioner of Police to exercise its power and pass an order of detention in such a case, the delegation in the first instance cannot exceed three months and the extension of the period of delegation cannot also be for a period exceeding three months at any one time.

44. Also having regard to the aforesaid discussion, we are inclined to follow the judgment of the Hon’ble Supreme Court in T.Devaki’s case as discussed in detail above to hold that the period specified in Section 3(2) of the Act does not relate to the period of detention, but to the period of delegation made by the State Government in favour of the District Magistrate or the Commissioner of Police.

45. Recapitulating the facts in the instant case, the detention order is dated 02/01/2016. The confirmatory order on receipt of the report from the - 82 - Advisory Board is dated 04/02/2016 detaining the petitioner’s husband for a period of twelve months from 02/01/2016 and subsequently, in any case, the order of detention has been reviewed every three months although the confirmatory order states that the detention is for a period of twelve months from 02/01/2016. Therefore, we do not find any illegality in the detention order having regard to the aforesaid provisions and in light of the judgment of the Hon’ble Supreme Court in the case of T.Devaki although Article 22(4)(a) has not been alluded to in the said case.

46. On a careful reading of the recent judgment of the Hon’ble Supreme Court in Cherukuri Mani, in light of the previous decision in T.Devaki, it becomes clear that there is a dichotomy or conflict of opinion between the two decisions. It is clear that in Cherukuri Mani, there is no reference made to the judgment of the Hon’ble court in T.Devaki. Further, T.Devaki is a dictum of three Judge Bench while - 83 - Cherukuri Mani is a decision of the two Judge Bench. Obviously, the decision in T.Devaki has not been brought to the notice of the two Judge Bench, which rendered the decision in Cherukuri Mani. Further, the provision of law under consideration in the aforesaid cases namely, Section 3 of the Andhra Pradesh Act, the Tamil Nadu Act and the Karnataka Act, are in pari materia.

47. Then, the question to be considered is whether this court is bound by the later decision of the apex court or the earlier decision of a Larger Bench, when there is a conflict between the two decisions. Under Article 141 of the Constitution, the judgment of the Supreme Court is binding on all courts within the territory of India, but it would not include the Supreme Court itself, which is not bound by its own judgment, and it is free to reconsider them in appropriate cases. In Punjab Land Development and Reclamation Corporation Ltd., Chandigarh vs. Presiding Officer, Labour Court, Chandigarh - 84 - [(1990) 3 SCC682, the Hon’ble Supreme Court has held that non-reference to an earlier larger Bench decision of the Supreme Court in a subsequent decision of the Supreme Court would be per incuriam, if the ratio of the earlier decision is in conflict with it. Similarly, in A.R.Antulay vs. R.S.Nayak and another [(1988) 2 SCC602, it has been held that if a decision has been given per incuriam, then the same is not binding. But for the rule of per incuriam to apply where the previous authority is alluded to, such reference must be in the context of the same contention. In Pyare Mohan Lal vs. State of Jharkhand and others [(2010) 10 SCC693, it has been held that where there is a conflict between two or more judgments of the Supreme Court, the judgment of the larger Bench has to be followed. While saying so, reliance has been placed on State of U.P. vs. Ram Chandra Trivedi [AIR1976SC2547.-. 85 - 48. We also observe that the judgment of this court in the case of Smt.Meenakshi and Hanamantha are in line with the dictum of Hon’ble Supreme Court in T.Devaki. So also the judgment of this court reported in case of Vimala Bai vs. District Magistrate [ILR1988Kar. 648 DB]. (Vimala Bai), which is prior to the decision in T.Devaki, is also in line with the reasoning of the Hon’ble Supreme Court in case of T.Devaki. But the judgments of this court in Earanna, Basavarajaiah Swamy and Chandrappa, referred to above, have followed the decision of the Hon’ble Supreme Court in Cherukuri Mani. In fact, in the case of Vimala Bai, a Division Bench of this Court has held that it is not a statutory requirement that the period of detention should be specified in the order of detention. In the absence of such a specification, Section 13 of the Act would operate, which states that the period of detention is twelve months from the date of detention when the detention order is confirmed by the Advisory Board under Section 12. However, the State Government can revoke the detention order if - 86 - the Advisory Board opines that there was no sufficient cause for the detention of the detenu. Regarding Section 3(2), it has also been held in Vimala Bai that the period of three months referred to in the proviso to Section 3(2) has nothing to do with the period of detention. The said period only governs the entrustment or the competence of District Magistrate to make an order of detention.

49. In the circumstances, we are of the view that the decisions of the Division Bench of this court in Earanna, Basavarajaiah Swamy and Chandrappa, are not binding precedent, being contrary to the dictum of the Hon’ble Supreme Court in the case of T.Devaki and the observations of the Division Bench of this court in the case of Vimala Bai, Smt.Meenakshi and Hanamantha. Other Contentions:

50. The next aspect of the matter is with regard to the fact that the detenu in question had - 87 - been enlarged on bail and therefore, the detention could not have been made on the basis of the proceedings in which the detenu had been enlarged on bail. According to petitioner’s counsel, in the instant case, the bail order was neither placed before the detaining authority at the time of passing the order of detention nor was the detaining authority aware of the order of bail and hence, the order of detention is invalid. In this context, it was brought to our notice that in respect of the cases filed against the detenu under the provisions of the Code of Criminal Procedure, 1973 [Section 110 (e) and (g)]., which are mentioned at Sl.Nos.1 and 2 separately in the detention order being Crime Nos.84/2013 and 133/2015, the detenu is enlarged on bail after executing a bond. Even though it may be that the detenu is enlarged on bail in the aforesaid two cases, we do not find that the detention order is invalid or illegal for the mere inclusion of those two cases in the order of detention. Section 6-A of the Act specifically states that the grounds of detention are severable and - 88 - even if it is true that the detenu has been enlarged on bail in the aforesaid two matters, the inclusion of the same in the order of detention would not vitiate the order of detention.

51. The next contention is with regard to the fact that there is no proximity or causal connection between the cases registered against the detenu and the order of detention and further that the detenu has been acquitted in a few cases and therefore, based on those cases, the order of detention could not have been passed. It may be that the detenu may have been acquitted in respect of three cases namely, Crime Nos.14/2008, 146/2009 and 132/2010. But there are five other cases, which are pending against him, namely Crime Nos.112/2012, 167/2013, 95/2014, 143/2014 and 168/2015. Further, while examining the legality of the detention order, this court cannot sit in judgment over the satisfaction derived by respondent – Deputy Commissioner before passing the order of detention. The aforesaid cases - 89 - which are pending adjudication before the competent court as against the detenu cannot be considered to be having no proximity to the impugned detention order.

52. In the circumstances, we do not think that the judgment of the Hon’ble Supreme Court in the case of Rushikesh Tanaji Bhoite or the dictum of this court in Smt.Kalavathi, referred to above are applicable to the present case. In Smt.Kalavathi’s case, out of twenty two criminal cases, in twelve cases the detenu therein was acquitted and in ten cases, he was enlarged on bail and except one offence referred to in the order of detention therein, all other cases suffered from remoteness and did not have proximity to the order of detention. Therefore, the detention was held to be unsustainable. That is not the position in the instant case.

53. As already noted, there are five cases pending against the detenu herein and in only two cases, he has been enlarged on bail, while he has - 90 - been acquitted in three cases. The pending crime numbers are even of the year 2015. Hence, in our view, there is no want of proximity between the cases pending against the detenu and the impugned order of detention. Hence, the aforesaid contentions are also negatived.

54. There is no other contention raised in the instant case.

55. In the circumstances, we find that the petitioner has not been able to make out any ground for quashing the impugned order of detention.

56. The writ petition is therefore, dismissed. *mvs/s* Sd/- JUDGE Sd/- JUDGE


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