W.P. (H.C.) No. 96/2016. Case: Nausheena Vs The State of Karnataka and Ors.. Karnataka High Court

Case Number:W.P. (H.C.) No. 96/2016
Party Name:Nausheena Vs The State of Karnataka and Ors.
Counsel:For Appellant: B. Lethif, Advocate and For Respondents: Tharanath I. Poojary, Addl. Govt. Advocate
Judges:B.S. Patil and B.V. Nagarathna, JJ.
Issue:Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Section 3(1); Constitution of India - Articles 22, 22(5)
Judgement Date:March 14, 2017
Court:Karnataka High Court
 
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Order:

  1. Petitioner is the wife of the detenue - Althaf, s/o. Abdul Khader. He has been detained under the provisions of Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1985 (hereinafter called as the "Act" for the sake of brevity).

  2. The second respondent - Commissioner of Police, Mangalore City, has passed the order of detention on 23/04/2016 and the Kannada translation of the said order was furnished to the detenue on the same date vide Annexure "A" and "A-1" respectively. The grounds of detention along with its Kannada translation were furnished to the detenue and they are at Annexure "B" and "B-1" respectively. The detention was approved by the State Government by order dated 30/04/2016 vide Annexure "C".

  3. In a nutshell, it is stated in the grounds of detention that the detenue is involved in several criminal activities within the limits of Ullala Police Station, D.K. Dist., damaging Government property, obstructing the police from discharging their duties by causing injuries, committing acts of kidnapping, extortion, dacoity and attempt to murder in collusion with anti-social elements. As a result, Ullala Police has opened a rowdy sheet against the detenue on 14/05/2010. The activities of the detenue have created problems for the law abiding citizens and therefore, the provisions of the Act have been invoked against the detenue. Further, in the grounds of detention, reference has been made to Crime Nos. 134/2010, 356/2013, 242/2014, 99/2016 of Ullala Police and Crime No. 179/2015 of Mangalore East Police. That Crime No. 179/2015 is under investigation while in the first four cases, charge sheets have been filed and the trial is under progress.

  4. The detenue is in judicial custody from 22/03/2016 in Crime No. 99/2016. It is stated that in case the detenue obtains bail in the aforesaid case also and if he is released, he would continue his criminal activities which are detrimental to the maintenance of public order. As the ordinary laws have failed to control his criminal tendencies it has become imperative to detain him under the Act.

  5. The order of detention which was approved by the State Government on 30/04/2016 was served on the detenue on 02/05/2016 along with the relevant documents in the form of a paper book at Kalaburagi Central Prison. According to the petitioner, along with the order of approval, certain documents have been annexed, which are illegible, as a result, the detenue was unable to make an effective representation. However, the detenue gave a representation to the State Advisory Board through the Superintendent of Prison on 04/05/2016 as per Annexure "E". Petitioner, being aggrieved by the order of detention dated 23/04/2016 as well as the order of approval dated 30/04/2016 passed on her husband, has approached this court challenging the same on various grounds.

  6. Statement of objections has been filed to the writ petition as also additional affidavit along with certain documents, contending that the order of detention is legal and justified.

  7. Petitioner's counsel has filed a memo dated 28/10/2016 enclosing endorsement dated 25/04/2016, issued by the State Government.

  8. We have heard learned counsel for the petitioner and learned Addl. Government Advocate (A.G.A.) for and on behalf of the State and perused the material on record.

  9. Learned counsel for the petitioner has urged certain contentions while assailing the order of detention. He has drawn our attention to five cases mentioned in the grounds of detention. That in the first four cases namely, Crime Nos. 134/2010, 356/2013, 242/2014 and 179/2015, the detenue has been granted bail and that in Crime No. 99/2016 the case is under investigation, but he is in judicial custody. That in respect of the four cases where bail has been granted, the detaining authority has not supplied the copy of the bail order passed in Crime No. 242/2014. The detaining authority was also not quite aware of the fact that the detenue had been granted bail in the aforementioned case. He next contended that Annexure "F" is a corrigendum issued to the detention order dated 26/04/2016 which was served on the detenue only on 29/04/2016 and the order of detention has been approved on 30/04/2016.

  10. Learned counsel for the petitioner further submitted that legible copies of certain documents relied upon by the detaining authority have not been supplied to the detenue. In particular, he drew our attention to Page Nos. 51, 54, 58, 95, 99, 160, 168, 195, 201 and 218 of the memorandum of writ petition to contend that in the absence of legible copies, the petitioner has not been able to make an effective representation to the State Government or to the State Advisory Board. He further contended that representation made to the State Government on 04/05/2016 and the Advisory Board on 05/05/2016 have not been considered and an endorsement has been issued having regard to the opinion given by the State Advisory Board and there has been no independent consideration of the representation. It is the further contention of petitioner's counsel that translated copies of the bail orders, order sheets in the criminal cases have not been supplied to the detenue who knows only Kannada language and as a result, the detenue has been disabled from making an effective representation.

  11. Relying on several judgments of the Hon'ble Supreme Court as well as this court, petitioner's counsel contended that the order of detention is illegal and a nullity and therefore, the same may be quashed and detenue may be released forthwith.

  12. Per contra, learned Addl. Govt. Advocate appearing for the State with reference to his statement of objections has supported the order of detention by placing reliance on several judgments of the Supreme Court as well as this court. He submitted that there is no merit in the writ petition and the same may be dismissed.

  13. Having heard learned counsel for parties, we shall consider the aforesaid contentions raised by the petitioner's counsel in seriatim. We have perused the detention order dated 23/04/2016 as well as the grounds of detention carefully. In the grounds of detention, the second respondent has referred to five cases namely, Crime Nos. 134/2010, 356/2013, 242/2014, 179/2015 and 99/2016 and in his opinion the aforesaid cases have been registered but bail has also been granted in those cases and that once bail is granted the detenue would continue to indulge in anti social activities, which is detrimental to public order. That it is difficult to control the activities of the detenue under the ordinary law and hence, the Act has been invoked.

  14. As already noted, the detention order has been passed when the detenue is in judicial custody in respect of Crime No. 99/2016. The apprehension in the mind of the detaining authority is that there is a likelihood that the detenue would be released on bail in...

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