Vani vs State of Karnataka

Mohan M. Shantanagoudar, J.—The order of detention dated 24.3.2016 passed by the second respondent (vide Annexure-''A'') and the order of confirmation dated 31.3.2016 passed by the first respondent (vide Annexure-''C'') are called in question in this writ petition.

This Habeas Corpus Writ Petition is filed by the wife of the detenu, who is detained under the provisions of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1985 (''the Act'' for short).

The order of detention dated 24.3.2016 passed by the Deputy Commissioner and District Magistrate, Hassan suffers from serious illegality and the same is contrary to the provisions of Section 3(2) of the Act. The proviso to Section 3(2) of the Act mandates that the period specified in the detention order made by the State Government/Detaining Authority under Section 3(2) of the Act "shall not", in the first instance, exceed three months, but the State Government may, if satisfied that it is necessary so to do, amend such order to extend such period from time to time by any period not extending three months at any one time. The bare reading of proviso to Section 3(2) of the Act makes it amply clear that the initial detaining order shall not order to detain the detenue for more than three months. However, it is open for the State Government to extend time as prescribed in the Act upto maximum period of twelve months.

In the matter on hand, the detention order at Annexure-''A'' clearly states that the detenue be detained in Mysore Central Prison for a period of twelve months from the date of order of detention subject to approval by the State Government or the concerned Advisory Board. Since it was not open for the Detaining Authority to pass the detention order for more than three months, the order is illegal.

It is open for the detenu to file his representation before the Detaining Authority and the Detaining Authority will have to consider such representation within twelve days from the date of detention. Since the Detaining Authority has made its intention amply clear in the initial detention order itself that the detention of the detenu shall be for a period of twelve months, it has to be held that the Detaining Authority had a closed mind, inasmuch as even if the representation was to be filed by the detenu, the same would not be considered effectively. In other words, the Detaining Authority has prejudged that the detenu should be detained for a period of one year and that any representation to be filed before the Detaining Authority would be rendered useless.

Our view is supported by the decision of this Court in the case of Yashoda v. Secretary, Home Department and others, reported in 2015(5) KLJ 47. In the said matter also, the Detaining Authority has passed the order initially for a period of twelve months and this Court commented heavily on that order and quashed the same.

Since the question involved in this writ petition is fully covered by the decision of this Court Yashoda''s case (mentioned supra), this writ petition is entitled to be allowed.

Accordingly, the following order is made:

(i) The order of detention dated 24.3.2016 vide Annexure-''A'' and the order of confirmation dated 31.3.2016 vide Annexure-''C'' stand quashed.

(ii) We make it clear that it is open for the Detaining Authority or any other prescribed Authority to pass the detention order afresh in case if need be, in future.

(iii) The detenu - Viji alias Vijikumara shall be released forthwith, if he is not required in any other case.

(iv) Writ Petition stands allowed.