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Judgment
Ashok B. Hinchigeri, J.—1. The petitioner has called into question the second respondent Deputy Commissioner''s order of detention, dated 01.01.2016 (Annexure-B), the State Government''s order, dated 08.01.2016 approving the said detention order and the order, dated 04.02.2016 (Annexure-D) continuing his detention for a further period of 12 months.
The petitioner''s learned advocate, Sri Ashok B. Mulage submits that the petitioner is a man of thumb impression. The grounds of detention were not explained to him in Kannada. He submits that if the petitioner were to be only informed of the grounds of detention, he would have got a representation submitted to the State Government. He further submits that the petitioner was not informed of opportunity of showing his innocence before the Advisory Board. He was simply and mechanically produced before the Advisory Board without being informed of what he has to do before the Advisory Board.
Sri Mulage relies on the Division Bench judgment of this Court in the case of Bharathi S. Prabhu v. State of Karnataka reported in , 2015 (3) KCCR 2060. Para-9 read out by him from the said decision is extracted hereinbelow:
"9. Obviously, none of the offences alleged in the above cases are punishable under the provisions of the Indian Penal Code. All the offences alleged are under the Karnataka Police Act. That being so, the definition clause of Section 2(g) of the Act is not at all attracted, thereby the impugned order is vitiated for invoking a wrong provision of law and the detention order is illegal."
He also relied on the Apex Court''s decision in the case of Rekha v. State of Tamil Nadu reported in , (2011) 5 SCC 244 to advance the submission that Article 22(3)(b) of the Constitution of India which permits preventive detention is only an exception to Article 21 of the Constitution. He submits that the people cannot be put in jail for a long period without recourse to a lawyer and without a trial.
He submits that the petitioner is not held guilty of any offence punishable under any provisions of the Indian Penal Code. He submits that the cases foisted on the petitioner are only under Section 78(3) of the Karnataka Police Act. He denies the allegation that the petitioner was indulging in ''matka'' or any other kind of gambling.
Smt. Archana Tiwari, the learned Additional Government Advocate appearing for the respondents submits that the petitioner has been indulging in systematic and persistent gambling activities. She submits that his activities are ruining the middle class people, who are being enticed by the petitioner to indulge in chance games and lose their hard-earned money. She submits that the petitioner''s activities are prejudicial to the maintenance of public order.
The submissions of the learned counsel have received our thoughtful consideration. The safeguards relating to preventive detention are enshrined in Article 22(5) of the Constitution of India. In case of preventive detention no offence is proved and no charge is formulated. The justification for such preventive detention is reasonable suspicion or apprehension. To ensure that such preventive detentions do not trample upon the right to protection of life and personal liberty, Article 22(5) of the Constitution prescribes the procedural and substantive requirements. The provisions contained in Article 22(5) read as follows:
"(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order."
It is profitable to refer to what the Apex Court had to say in the later part of para 4 of its decision in the case of Nutan J. Patel (Ms) v. S.V. Prasad and another reported in , 1996 SCC (Cri) 269:
"4............. In other words, from these facts, it would be clear that the detenu was not informed of his constitutional right to make a representation to the Specified Officer for reconsideration of his detention. In view of the law laid down by this Court, the failure on the part of the Specified Officer to inform the detenu that he has a constitutional right to make representation to the Specified Officer against the order of detention, violates Article 22(5) of the Constitution. The order of detention gets vitiated."
The Apex Court in the case of Kundanbhai Dulabhai Shaikh v. Distt. Magistrate, Ahmedabad and others, reported in , AIR 1996 SC 2998, which is as follows:
"It is not correct to say on ground of non-specification of authorities in Art.22 (5) to whom representation is to be made that right to make representation against preventive detention is not Constitutional right. It will be seen that right to represent has been given not only by Article 22(5) of the Constitution but also by Section 8 of the Act. The right provided under the Act has, therefore, to be treated as an extension of the constitutional right already available to a detenu under Article 22 (5). The legislature has, in fact, given effect to the constitutional right by providing in Section 8 of the Act that the detenu shall have the right of making a representation to the appropriate government."
In the case of Hadibandhu Das v. District Magistrate, Cuttack and another reported in , AIR 1969 SC 43 it was held as follows:
"6. The grounds in support of the order serve on the appellant ran into fourteen typed pages and referred to his activities over a period of thirteen years, beside referring to a large number of court proceedings concerning him and other persons who were alleged to be his associates. Mere oral explanation of a complicated order of the nature made against the appellant without supplying him the translation in script and language which he understood would in our judgment, amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making a representation against the order. The order made by the District Magistrate, Cuttack not having been followed up by service within five days as provide by Section 7(1) of the communication to him of the grounds on which the order was made must be deemed to have become invalid and any subsequent detention of the appellant was unauthorised."
This is a case in which the petitioner is a man of thumb impression. He cannot even read Kannada, let alone reading English. The respondents therefore ought to have explained the contents of the detention orders to him and preferably in the presence of one of his close relatives. We do not see any averment in the statement of objections that the same has been done. Our perusal of the impugned detention orders also does not disclose that the respondents have ever done that.
When the petitioner is not aware of the grounds of detention, there is no question of his utilizing the opportunity of giving a representation to the competent authority or make appropriate submissions before the Advisory Board. On this ground we are quashing the impugned orders. The respondents are directed to set the petitioner at liberty forthwith, if the petitioner is not required to be in custody in any other case. We also make it clear that the quashing of the impugned orders does not come in the way of the respondents'' passing fresh order of detention, if the public safety requires it and if it is not possible to maintain the same by pressing the ordinary criminal law into motion.