H.A. Hammabba vs State of Karnataka and Others

Mohan M. Shantana Goudar, J.—1. The order of preventive detention dated 21.11.2015 passed by the Commissioner of Police, Mangalore city (respondent No. 2 herein), the order of approval dated 27.11.2015 and the order of confirmation dated 12.1.2016 passed by the State Government are called in question in this writ petition by the father of the detenue.

The Commissioner of Police, Mangalore city having satisfied that the detenue has indulged in habitual criminal and goonda activities which have disrupted normalcy in Mangalore city adversely and having satisfied that the action taken against the detenue under the Indian Penal Code has had no effect on him and that the detenue has continued to freely indulge in criminal and anti-social activities, has passed the order of detention dated 21.11.2015 under the provisions of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1985 (in brief "Goonda Act") and the same is approved and ultimately, confirmed by the State Government.

The records reveal that along with the order of detention, the grounds of detention are served on the detenue. He was made known about his right to file representations before the Detaining Authority, the State Government as well as before the Advisory Board. The representations filed by the petitioner as well as the detenue are considered by respondent Nos. 1 and 2 and are rejected.

The grounds of detention reveal that the detenue has indulged in as many as 20 criminal cases, out of them, in six criminal cases, he is acquitted and in other matters, the trials are pending before the respective criminal courts. The grounds of detention further reveal that the detenue has gained such notoriety in the society that the general public is afraid of even lodging the complaint against him and even the witnesses are afraid to depose against him; that the detenue is in the habit of absconding after registration of the cases against him. The grounds of detention further reveal that the detenue has indulged in habitual criminal and gooda activities which have disrupted the Mangalore city adversely. The grounds of detention prima facie disclose that the detenue is indulging in illegal activities like theft, dacoity, robbery, extortion, abduction, rape, murder etc., He and his gang members are involved in various other criminal activities including the offence of rape and kidnapping.

Sri. Hashmath Pasha, learned Advocate appearing on behalf of the petitioner taking us through the grounds of detention and other material on record submits that the detenue is released on bail in all the criminal cases except in two criminal cases which are against him; he is in judicial custody pending trial since 21.12.2013 and therefore, there should not be any apprehension in the mind of the Detaining Authority that the detenue would indulge in activities which are prejudicial to the interest of the society and public at large; the representation filed by the detenue is not considered by the State Government (respondent No. 1); there is no application of mind at all; the grounds urged are vague and cryptic; since it is open for the State Government to oppose the bail applications even in those two cases in which the detenue is in custody, according to him, the order of detention is bad in the eye of law. He further submits that the detenue is law abiding and he is acquitted in six cases already.

The said submissions are opposed by the learned Government Advocate by filing statement of objections. He submits that the Detaining Authority is satisfied as to the conduct of the detenue in acting in a manner prejudicial to the maintenance of public order; having fully satisfied and convinced that it is necessary to obtain the detenue under the Goonda Act, the order of detention is passed by the Commissioner of Police, which is rightly confirmed by the State Government.

There cannot be any dispute that where the ground of preventive detention supplied to the detenue is extremely vague and contains no particulars to make adequate representations against the order of detention, it infringes the constitutional safeguard provided under Article 22(5) of the Constitution of India. So also, it is not in dispute that such acts as alleged in this matter may create a law and order problem. But if such acts do not cause any obstruction of maintenance of public order, the order of preventive detention will not be passed. But in the matter on hand, the facts are otherwise.

On going through the grounds of detention we are of the clear opinion that there is no scope to argue that the grounds of detention are vague and cryptic, on the other hand, the grounds of detention specify as to why the order of detention is made against the detenue. The grounds of detention not only narrate 20 crimes which are registered against the detenue, but also reveal that in six of the matters he is acquitted. The grounds of detenue further makes amply clear that the common man has got fear to even lodge the complaint against the detenue in the police station; it is very difficult for the police to control the behaviour of the detenue of habitually indulging in criminal offences under criminal laws; that the detenue has gained such a notoriety in the society that the general public are even afraid of lodging complaint against him and even the witnesses are afraid to depose against him; that he is in the habit of absconding after registration of cases against him. The offences committed by the detenue however caused a feeling of fear among the general public; so also the peace, tranquility and public order is adversely affected. The Detaining Authority is fully satisfied that the detenue will continue to indulge in habitual criminal and goonda activities which have disrupted and will disrupt normalcy in Mangalore city adversely. The action taken against him under the Indian Penal Code has had no effect on him and he continued to freely indulge in criminal and anti-social activities. It is also specified by the Detaining Authority that though the detenue is in judicial custody at present, he is trying to get an order of bail by citing various reasons and in case if the detenue obtains bail and he is released, he will continue to indulge in activities detrimental to public order while facing trial. Thus, as a precautionary measure, the Detaining Authority in order to protect the interest of public and to prevent further attacks and preserve the public order, peace and tranquility, found it essential to proceed against the detenue under the Goonda Act. Since the detenue is not amenable to the ordinary laws of land and as he has been acting in a manner prejudicial to the maintenance of public order, the Detaining Authority has passed the order of detention after due application of mind.

We also do not find any ground to agree with the contention of the learned counsel for the petitioner that the representation filed by the detenue is not considered by the State Government. The learned Government Advocate brings to the notice of the Court from the records maintained by the State Government that the representation filed by the detenue is considered by the State Government and endorsement to that effect is issued to the detenue on 17.12.2015. Hence, it is clear that the representation filed by the detenue is considered and rejected by the Government.

Though the detenue is in custody in two criminal cases i.e., Crime Nos. 192/2013 and 193/2013 since 21.12.2013, the Detaining Authority as mentioned supra, is satisfied that the detenue is making efforts to get an order of bail by filing applications before the Court by raising certain grounds. In case, if the detenue is released on bail in those two criminal cases also, the detenue would continue to indulge in illegal activities which are prejudicial to the maintenance of public order. Thus, it is clear that the Detaining Authority is satisfied that even after release on bail the detenue would indulge in similar activities which are prejudicial to the interest of public at large. All these facts are found in the grounds of detention, based on which, the Detaining Authority is satisfied that the order of detention should be passed under the provisions of the Goonda Act since it is not possible to curb the activities of the detenue under normal laws of the land.

It is by now well settled that the sufficiency of materials available to the Detaining Authority is not to be examined by the Court. While considering the writ petition of or on behalf of the detenue, the High Court does not sit in appeal over the detention order and it is not for the Court to go into and assess the probative value of the evidence available to the Detaining Authority. We hasten to add here itself that the detention order not supported by any evidence may have to be quashed. But that is not the case here. There is sufficient material before the Detaining Authority to justify forming of his opinion. Therefore, it is not possible to accept the contention of the learned counsel for the petitioner that the grounds mentioned in the order of detention are vague and non-existent.

Those who are responsible for the maintenance of public order must be the sole judges of what the public order requires. The preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it and prevent him from doing. Justification for such detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence. It follows that any preventive measures, even if they involve some restraint or hardship upon individuals, do not partake in any way the nature of punishment, but are taken by way of precaution to prevent mischief to the State.

The prejudicial activity of the detenue leading to public disorder as revealed in the grounds of detention, consist of a consistent course of criminal record. Although the criminal activities of the detenue in the past pertained mostly to breaches of law and order, they have now taken a turn for the worse. From the facts alleged it appears that the detenue has taken to a life of crime and become a notorious character. His main activities are theft, robbery, extortion, kidnapping, rape and murder by use of weapons. Perusal of records show that the detenue is a person of desparate and dangerous character. This is not a case of a single activity directed against a single individual. There have been series of criminal cases against the detenue and his associates during a span of more than five years which have made him a menace to the society. The Detaining Authority is convinced that the criminal and goonda activities of the detenue will disrupt normalcy in the Mangalore city adversely.

We are conscious of the fact that right to liberty is guaranteed under Article 21 of the Constitution of India. At the same time, Article 22(3)(b) of the Constitution permits preventive detention. It is subject to satisfaction of the Detaining Authority whether a person has to be detained for a particular period of time or not. In the impugned grounds of detention, the Detaining Authority has already narrated all the reasons for passing the detention order detaining the detenue with a view to prevent him to from indulging in activities which are prejudicial to the maintenance of public order. Since we find that no valid grounds are forthcoming to quash the impugned orders, no interference is called for.

Petition fails and the same stands dismissed.