Masoom vs The Secretary

B.S. Patil, J.—Order of preventive detention passed by the 3rd respondent-Deputy Commissioner, Raichur and the order dated 20.01.2014 extending the detention by 12 months passed by the State Government-respondent No. 1 vide Annexure-G, are called in question in this writ petition by the detenue. Petitioner was proceeded against under the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1985 (for short ''the Act'' herein after). The Deputy Commissioner, Raichur passed an order in exercise of his power under sub-section (1) of Section 3 of the Act ordering detention of the petitioner vide Annexure-C. The grounds for detention have been that he was involved in as many as six criminal cases and the documents forwarded to the Deputy Commissioner, Raichur, from the Superintendent of Police, Raichur District, Raichur, with regard to the involvement of the petitioner in various offences disclosed that he was a menace to the society as he was indulging in taking law into his own hands affecting peace and tranquillity in the area and that if he was not detained there was every possibility he continuing to indulge in such activities terrorizing the public and committing serious offences which would eventually affect public peace and tranquillity. Order passed by the Deputy Commissioner on 19.11.2013 was for a period of three months. This order of detention was approved by the State Government on 25.11.2013 and the matter was referred for the opinion of Advisory Board. The Advisory Board gave its opinion and based on the opinion of the Advisory Board, the detention order was confirmed for a period of 12 months by issuing an order dated 20.01.2014 by the State Government.

It is also necessary to notice here that the petitioner had made a representation dated 27.11.2013 requesting for his release bringing to the notice of the State Government various facts including his acquittal in five of the criminal cases and also the order of bail granted in the sixth case, which according to the petitioner is the only case pending against him. This representation submitted by petitioner is at Annexure-R5. In the said representation, it is contended by the petitioner that Crime No. 52/2001 of Sadar Bazar Police Station, has ended in acquittal. Similarly, Crime Nos. 202/2004 and 110/2013 have also ended in acquittal. In respect of other cases i.e., Crime Nos. 224/2011, 183/2013 and 184/2013 which were still pending, he has been enlarged on bail. It is pointed out that this representation has not been considered on merits, but an endorsement has been issued vide Annexure-F1 rejecting the representation stating that there were no new circumstances to reconsider the matter regarding his detention.

Learned Counsel appearing for the petitioner has principally contended that petitioner has been acquitted in three cases and has been enlarged on bail in three other cases. Learned Counsel for the petitioner urges that when the order of detention was passed, petitioner had been enlarged on bail by an order passed by this Court in Criminal Petition No. 15965/2013 vide order dated 19.11.2013 as regards offences registered in Crime No. 184/2013 by Sadar Bazar Police Station. He points out, by referring to the said order, that by taking note of the fact that there was no active participation by the accused in the assault alleged, bail has been granted on condition that petitioner shall execute a personal bond for a sum of Rs. 50,000/- with one surety for the like sum and also by imposing other conditions.

It is urged that this order and the application seeking bail were relevant materials which the Deputy Commissioner ought to have taken into consideration before reaching the conclusion regarding need to keep the petitioner under detention. In support of this contention, he has placed reliance on the judgment of Division Bench of this Court in the case of Smt. R. Latha Vs. T. Madiyal, Commissioner of Police, Bangalore City and Others, .

I have perused the said judgment, wherein it is held that in case of person, who is on bail at the time of passing the detention order, his bail application and bail order passed thereon are vital documents and the same should necessarily be placed before the detaining authority and copies thereof should be supplied to the person against whom detention order is passed and non-compliance with the said requirement would render the detention order illegal and void ab initio.

In the instant case, the bail order at Annexure-B passed by this Court in Criminal Petition No. 15965/2013 on 19.11.2013 was a vital material which should have been taken note of by the District Magistrate along with the bail application and the same ought to have been made available to the detenue. This important requirement has not been complied with. Therefore, on this ground alone the order of detention is liable to be set aside.

Indeed, the detenue in his representation submitted vide Annexure-F1 on 27.11.2013 has mentioned this aspect and has brought to the notice of the State Government that he is acquitted in other cases and bail has been granted in other cases. The State Government has rejected the representation without referring to the order passed by this Court granting bail.

It is contended by the learned Government Advocate by referring to the judgment of the Apex Court in the case of D.M. Nagaraja Vs. The Government of Karnataka and Others, that merely because action could be taken against the detenue under ordinary laws, detention under the Act was not needed, the question raised by the petitioner being squarely covered by the judgment of a Division Bench of this Court, consideration of other aspects will not arise. The detention order is, therefore, liable to be set aside reserving liberty to the Deputy Commissioner to pass a fresh order in accordance with law after providing the petitioner with the copies of bail application and of the order granting bail and by considering the effect of the said documents in accordance with law.

It is made clear that this Court refrains from expressing any opinion on the merits of the contentions urged by the learned Government Advocate who has vehemently contended that the detention of the petitioner is absolutely essential to maintain peace and tranquillity in the area and that there are other cases pending against the detenue which are of grave nature. Hence, this writ petition is allowed. Impugned orders are set aside. Liberty is reserved to the authorities to pass fresh order in accordance with law in the light of the observations made above. Respondents are directed to release the petitioner from custody, if his detention is not required, in any other case.