1 - - WP(HC) No.122/2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE11H DAY OF NOVEMBER2016PRESENT THE HON’BLE MR. JUSTICE H.G.RAMESH R AND THE HON’BLE MR. JUSTICE K.N.PHANEENDRA WRIT PETITION (HC) NO.122/2016 ... PETITIONER BETWEEN: H.A.HAMMABBA S/O ABDULLA AGED ABOUT75YEARS KOPPALA HOUSE KRISHNAPURA HALEYANGADI VILLAGE MANGALORE – 575 001 (BY SRI HASHMATH PASHA, ADVOCATE) AND:
1. STATE OF KARNATAKA BY ITS UNDER SECRETARY DEPARTMENT OF HOME INTERNAL ADMINISTRATION (LAW AND ORDER
) VIDHANA SOUDHA BANGALORE -560 001 2.
3. THE COMMISSIONER OF POLICE MANGALORE CITY MANGALORE – 575 001 THE SENIOR SUPERINTENDENT CENTRAL PRISON BELLARY – 583 101 ... RESPONDENTS (BY SRI D.NAGARAJ, AGA) 2 - - WP(HC) No.122/2016 THIS WRIT PETITION (HABEAS CORPUS) IS FILED UNDER ARTICLE226OF THE CONSTITUTION OF INDIA PRAYING FOR ISSUE OF A WRIT OF HABEAS CORPUS TO THE RESPONDENTS TO RELEASE THE DETENU MR.SAFWAN HUSSAIN @ SAFWAN S/O H.A.HAMMABBA, AGED ABOUT22YEARS, BY QUASHING THE ORDER
OF DETENTION DATED1208.2016 IN REFERENCE NO.HD.572.SST.2015 AND THE ORDER
DATED1201.2016 IN REFERENCE NO.HD.572.SST.2015 PASSED BY RESPONDENT NO.1 VIDE ANNEXURES-A & D AS ILLEGAL AND IN VIOLATION OF ARTICLES OF21AND22OF THE CONSTITUTION OF INDIA. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON1810.2016 FOR ORDER
AND COMING ON FOR PRONOUNCEMENT OF ORDER
, THIS DAY, H.G.RAMESH J.
MADE THE FOLLOWING: H.G.RAMESH, J: ORDER
1 Whether a detaining authority under the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug- offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum-Grabbers and Video or Audio Pirates Act, 1985 (‘the Act’), can pass a subsequent order of detention by relying on the same grounds that were relied upon to pass the earlier order of preventive detention?. This is the question that requires to be examined in this petition. 3 - - WP(HC) No.122/2016 2. Petitioner’s son by name Safwan Hussain (‘the detenu’) who is stated to be a ‘goonda’ as defined under Section 2(g) of the Act has been detained by order dated 12.01.2016 passed under Sections 12(1) and 13 of the Act. The period of detention is stated therein as twelve months from 21.11.2015, the date of the preliminary order of detention passed under Section 3(2) of the Act, subject to review of the order on completion of every three months. The aforesaid order dated 12.01.2016 was affirmed by this Court by order dated 28.03.2016 in W.P.(HC) No.18/2016 preferred by the petitioner herein, who is the father of the detenu. Subsequently, on review, the period of detention was extended from 21.02.2016 to 20.05.2016 by order dated 18.02.2016. The period of detention was again extended from 21.05.2016 to 20.08.2016 by order dated 16.05.2016 which was affirmed by this Court in W.P.(HC) No.80/2016 by order dated 27.06.2016. Again, by a subsequent order of detention dated 12.08.2016, the period of detention is extended by a further period of three months from 21.08.2016 to 21.11.2016. 4 - - WP(HC) No.122/2016 3. This writ petition is directed against the aforesaid subsequent order of detention dated 12.08.2016 passed under the Act extending the period of detention of the detenu by a further period of three months from 21.08.2016 to 21.11.2016.
4. The sole contention urged by learned counsel for the petitioner is that there were no fresh grounds to continue the detention than that were available at the time of passing of the first order of detention dated 21.11.2015, and hence, the impugned order dated 12.08.2016 extending the period of detention by a further period of three months is not tenable in law.
5. In view of the above contention, the question that requires to be examined is as to whether a detaining authority under the Act can pass a subsequent order of detention by relying on the same grounds that were relied upon to pass the earlier order of detention. To examine the question, it is relevant to refer to Sections 3, 12, 13 & 14 of the Act; they read as follows: “3. Power to make orders detaining certain persons.-(1) The State Government may, if satisfied with respect to any bootlegger or drug-offender or gambler or goonda or immoral traffic offender or slum-grabber or 5 - - WP(HC) No.122/2016 Video or Audio Pirate that with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such persons be detained. (2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing direct that during such periods 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 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 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, the State Government. it has been approved by 12. Action upon report of Advisory Board.- (1) In any case where the Advisory Board 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. (2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of the person concerned, the State Government shall revoke the detention order and cause the person to be released forthwith.
13. Maximum period of detention.- The maximum period for which any person may be detained, in pursuance of any detention order made under this Act which has been confirmed under section 12 shall be twelve months from the date of detention.
14. Revocation of detention orders.- (1) Without prejudice to the provisions of Section 21 of the Karnataka General Clauses Act, 1899, a detention order may, at any time, be revoked or modified by the State Government, 6 - - WP(HC) No.122/2016 notwithstanding that the order has been made by an officer mentioned in sub-section (2) of Section 3. (2) The revocation or expiry of a detention order (hereinafter in this sub-section referred to as the earlier detention order) shall not, whether such earlier detention order has been made before or after the commencement of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Goondas, Immoral traffic Offenders and Slum-Grabbers (Amendment) Act, 1987, bar the making of another detention order (hereinafter in this sub-section referred to as the subsequent detention order) under section 3 against the same person: Provided that in a case where no fresh facts have arisen after the revocation or expiry of the earlier detention order made against such person, the maximum period for which such person may be detained in pursuance of the subsequent detention order shall in no case, extend beyond the expiry of a period of twelve months, from the date of detention under the earlier detention order.” 6. In the context of the question raised in this petition, it is pertinent to refer to the following observations made by a Five Judge Bench of the Supreme Court in Ujagar Singh v. State of Punjab (AIR1952SC350: Let us now turn our attention to the main “8. contentions. There is nothing strange or surprising in the fact that the same grounds have been repeated after the lapse of several months in both the cases, when it is remembered that the petitioners were under detention and in jail during the whole of the intervening period. No fresh activities could be attributed to them. There could only be a repetition of the original ground or grounds, whether good or bad. It does not follow from this that the satisfaction of the detaining authority was purely mechanical and that the mind did not go with the pen. The past conduct or antecedent history of a person can be taken into account when making a detention order, and, as a matter of fact, it is largely from prior events showing the tendencies or inclinations of the man that an inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order. If the authority satisfied himself that the original ground was still available and that there was need for detention on its basis, no 7 - - WP(HC) No.122/2016 mala fides can be attributed to the authority from this fact alone.” (Underlining supplied) The aforesaid observations are to the effect that, if the detaining authority is satisfied that the grounds that were relied upon to pass the earlier order of preventive detention were still available, a subsequent order of detention could be passed on the basis of the same grounds to continue the detention of the detenu.
7. In the light of the observations made in Ujagar Singh referred to above, we are of opinion that in the absence of any restriction in the law providing for preventive detention, a detaining authority is not barred from making a subsequent order of detention by relying on the same grounds that were relied upon to pass the earlier order of detention, if the grounds are still available, except when the said grounds were held to be unsustainable in law.
8. Proviso to Section 14(2) of the Act extracted above states that there is no bar for making a second or another order of detention under the Act, on the basis of the same grounds that were relied upon to pass the earlier order of detention, but in such a case the period of detention shall not 8 - - WP(HC) No.122/2016 extend beyond the period of twelve months from the date of detention under the earlier order of detention.
9. As could be seen from the impugned order of detention dated 12.08.2016, the detaining authority, being of opinion that the detenu is a habitual offender and if released will continue his criminal activities, has extended the period of detention by three months by relying on the same grounds that were relied upon to pass the first order of detention dated 21.11.2015. Further, the impugned order has not resulted in the period of detention extending beyond the period of twelve months from the date of detention under the first order of detention dated 21.11.2015. Therefore, the impugned order of detention is in conformity with the proviso to Section 14(2) of the Act and is not violative of any of the provisions of the Act to warrant interference. The writ petition is, therefore, devoid of merit and is accordingly dismissed.
10. Before parting with the case, we may clarify that in view of Section 14(2) of the Act, a second or another order of detention under the Act against the same person is permissible on the basis of fresh facts that have arisen after 9 - - WP(HC) No.122/2016 revocation, expiry or quashing of an earlier order of detention. If such a subsequent order is confirmed under Section 12 of the Act, the period of detention could be for a period of twelve months from the date of detention as laid down in Section 13 of the Act. Petition dismissed. Sd/- JUDGE Sd/- JUDGE hkh.