Mamtaj vs Gangaram Baderia, District Magistrate and Others

N.K. Jain, C.J.—Smt. Mumtaj, wife of the detenu Badsha alias Basyasab Shaikh alias Kuttewan has filed this habeas corpus petition challenging the detention order dated 12-9-2002 passed by the District Magistrate, Bagalkot and the confirmation order dated 17-9-2002 and the subsequent confirmation order dated 31-10-2002.

The said detention order passed by the District Magistrate and Deputy Commissioner, Bagalkot District, with a view to prevent the petitioner from indulging in gambling profession and from disturbing the public peace and order, u/s 3(2) of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-grabbers Act, 1985 (for short, ''the Goonda Act''), have been challenged. The detention order dated 12-9-2002 has been approved on 17-9-2002. The detenu made a representation, Annexure-E, which was rejected by the Government vide endorsement dated 2-11-2002 (Annexure-F). It is also stated that some other person by name Gajanan Govind Shinde was also detained. However on his representation, the Advisory Board directed the Government to revoke the order and the same was revoked by order dated 7-9-2002. But the representation of the petitioner before the Advisory Board was rejected. The order of detention was extended upto 11-9-2003.

The learned Counsel for the petitioner submits that he has challenged the detention order on the ground that the detention orders are manifestly erroneous and are liable to be set aside for non-compliance of the requirements of Article 22 of the Constitution and Section 3(1) of the Goonda Act and passed without subjective satisfaction. However, the main contention of the learned Counsel, before this Court, is that while passing the detention order the detaining authority has held that the detenu has violated the undertaking in the bail bond and has not supplied the order to the detenu. Therefore, on this ground the detention order and confirmation order are liable to be set aside. He relied on the following decisions.--

(1) Abdul Sathar Ibrahim Manik Vs. Union of India and others, ;

(2) Shaban Abdul Rahiman Vs. The Union of India and others, ;

(3) Mrs. Tsering Dolkar Vs. Administrator, Union Territory of Delhi and Others,

(4) M. Agarwalla v. State of West Bengal 78 CWN 892

On the other hand, the learned State Public Prosecutor submitted that in the grounds of detention it was observed that the 1st respondent examined the bail application of the petitioner and there is no prejudice caused and so the question of setting aside the order of detention does not arise. He relied on the decisions of the Supreme Court in Yogendra Murari Vs. State of U.P. and Others, and Pushpadevi Jatia v. Union of India and Ors., : 1987CriLJ1888

In rejoinder to reply, the learned Counsel for the petitioner submits that the cases cited by the learned State Public Prosecutor are not applicable. Learned Counsel submits that the documents, which were relied upon, were not supplied to him and that by itself has prejudiced his case, and therefore, the detention order is liable to be set aside.

We have heard the learned Counsel for the petitioners as well as the learned State Public Prosecutor and perused the materials placed on record and the case-laws.

It is not necessary to deal with the facts of this case in detail. However, as the learned Counsel has relied on the above cases and argued the case on that basis, it is proper to have the extract of the case-laws cited above, though the law is well-settled.

In Abdul Sathar Ibrahim Manik''s case, supra, their Lordships while considering the case of detention u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, held that subjective satisfaction is necessary. Even a solitary incident may manifest the potentialities of detenu in activities of smuggling. It was also observed that merely on the ground that there were no antecedents the detention order cannot be quashed. It was also observed that while considering the subjective satisfaction vital documents like bail application and order refusing bail if not placed before detaining authority, and are not referred to nor relied upon, then there is no need to supply the same to the detenu. Their Lordships also observed that every failure to furnish copy of a document to which reference was made in the grounds of detention was not an infringement of Article 22(5), fatal to the order of detention. It was only a failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation which amounts to a violation of the fundamental rights guaranteed by Article 22(5).

In Shaban Abdul Rahiman''s case, supra, their Lordships while considering the detention order found that the copy of the order granting bail if not put forward before detaining authority and only Fax message containing gist of bail order is placed before the detaining authority, and held that subjective satisfaction was impaired in the absence of basic material and vitiated the order of detention on account of that. Their Lordships also observed as the Court frowns on preventive detention without trial because the detenu is deprived of the right of proving his innocence in a trial by a Court of law. It is, therefore, of the utmost importance that all the necessary safeguards laid down by the Constitution under Article 21 or 22(5) should be complied with fully and strictly and any departure from any of the safeguards would void the order of detention.

In Mrs. Tsering Dolkar''s case, supra, their Lordships while considering the cases observed that the law laid down by the Court clearly indicates that in the matter of preventive detention, the test is not one of prejudice but one of strict compliance with the provisions of the Act and when there is a failure to comply with those requirements it becomes difficult to sustain the order.

In M. Agarwalla''s case, supra, the Division Bench while considering the decision of the Supreme Court observed that the two rights conferred by Article 22(5) are quite independent and infringement of either would invalidate the detention. The first part is not entirely a corollary to the second and both the obligations are to be discharged. If there is failure to discharge the first obligation of communicating the grounds, such failure is never cured by the fact that the detenu by some other process procures the grounds and makes a representation. They also referred to decision of the Supreme Court in Dr. Ram Krishan Bhardwaj Vs. The State of Delhi and Others, wherein it was observed "the question, however, is not whether the petitioner will in fact be prejudicially affected in the matter of securing his release by his representation, but whether his constitutional safeguard has been infringed".

We may now take the cases relied on by the learned State Public Prosecutor.

In Yogendra Murari''s case, supra, wherein the materials were not placed before and considered by the District Magistrate and the orders were made in vague terms, it was held that they are not fit to be accepted. The detaining authority in his counter-affidavit had denied the allegations and their Lordships had no reason to disbelieve him. The learned Counsel further urged that the petitioner was not supplied with a copy of the application filed at his instance as a cross-case and he was therefore, prejudiced in effectively making his representation. Therefore, when once the matter was posted before the District Magistrate, the question of prejudice does not arise.

In Pushpadevi Jatia''s case, supra, it was contended that there was infraction of the constitutional safeguards enshrined in Article 22(5) inasmuch as there was failure on the part of the detaining authority to consider the representation filed by the detenu u/s 8(b) of the COFEPOSA through one Ashok Jain and received at the President''s Secretariat on April 15, 1986 and therefore, the impugned order of detention was vitiated and the continued detention of the detenu was rendered illegal and void. Their Lordships having given their anxious consideration to the matter were of the opinion that the said contention did not prevail. Their Lordships also observed that the alleged factual misstatements in grounds of detention found to be not misstatements at all and the alleged misstatement or infirmities pointed out were not serious in nature and would not vitiate order of detention.

The law is well-settled that this Court cannot go into the merits of the detention order. The detention order can be quashed if no opportunity was given to the detenu for making a representation and if the representation was not decided within a reasonable time. It is also settled that it is not necessary to supply documents which are merely referred to but not relied upon as no prejudice is caused. But if a document is relied upon, but not supplied, such failure vitiates the detention order. However, passing of detention order in each case depends upon its own facts and circumstances.

As stated, the main contention is that the 1st respondent while passing the order has mentioned that "you have violated the undertaking in your bond and you have continued your illegal activities", but the documents relied were not supplied. Considering the facts of this case and applying the settled law, a perusal of the detention order reveals that the District Magistrate while considering the material also observed that he has examined the bail application and the bail bonds. After examination it was found that the detenu has violated the undertaking and continued his illegal activities and without supplying the so-called document passed the detention order. The learned State Public Prosecutor has not been able to show that the document which has been taken into consideration was not supplied. Under the circumstances, the cases relied by the learned State Public Prosecutor are not helpful. Admittedly, this document has not been supplied. Thus the factual material which lead to such inference, in absence of strict compliance, vitiates the detention order. To our mind, it cannot be said that the order is passed with subjective satisfaction. In other words non-supply of the documents relied upon would itself prejudice, as no opportunity was given for making effective representation which amounts to not following the constitutional requirements in strict sense and vitiates the detention order. Accordingly, the detention order and subsequent orders of confirmation have to be quashed. Accordingly, they are quashed.

In view of what we have discussed above, the detention order dated 12-9-2002 is set aside. The detenu Badsha alias Basyasab alias Kuttewan, S/o. Saidusab Shaikh alias Kuttewan shall be released forthwith if not required in any other case. This habeas corpus writ petition is allowed accordingly.