Rizwan Sharif vs The State of Karnataka and Others

H. Billappa, J.—In this writ petition under Articles 226 ad 227 of the Constitution of India, the petitioner has called in question the Detention Order dated 09.07.2015 vide Annexure-A and confirmation order dated 20.08.2015 vide Annexure-E.

The petitioner has contended that the material relied upon by the 2nd Respondent while passing the Detention Order that the detenue was in judicial custody and continued to indulge in illegal activities is not reflected in Kannada version. There is total non-application of mind. There are glaring discrepancies in English and Kannada version. In the Kannada version, it is stated that the detenue was involved in 13 cases. In English version it is stated that the detenue was involved in more than 04 cases in the year 2010. The discrepancies in Kannada and English version go to the root of the matter. Therefore, the Detention Order cannot be sustained in law.

The respondent-State has filed objections contending that there are 13 cases registered against the detenue since 2006. In eight cases the detenue has been acquitted. The other cases are pending. The involvement of the detenue in criminal activities attracts the definition of ''Goonda'' under Section 2(g) of the Act. Therefore, the Detention Order does not call for interference.

The learned counsel for the petitioner contended that the detenue was on bail in Crime No. 19/2015 and the bail order was not placed before the Detaining Authority or before the Advisory Board. Further, he submitted that there are serious discrepancies in Kannada and English version of the grounds for detention. Placing reliance on the decision of the Hon''ble Supreme Court in the case of Rushikesh Tanaji Bhoite Vs. State of Maharashtra and Others, , the learned counsel for the petitioner submitted that the Detention Order cannot be sustained in law.

As against this, the learned Government Advocate supported the Detention Order. Further he submitted that the detenue must show that non-furnishing of the bail order has prejudiced the right of the detenue. In the present case, non-furnishing of the bail order has not prejudiced the right of the detenue in any way. Therefore, the impugned order does not call for interference. He placed reliance on the decision of the Hon''ble Supreme Court reported in Rajendra Rai Vs. State of Bihar, .

We have carefully considered the submissions made by the learned counsel for the parties.

We find considerable force in the submission of the learned counsel for the petitioner. The grounds of detention in Kannada and English version show that there are serious discrepancies. In Kannada version there is no mention that the petitioner has indulged in criminal activities though he is in judicial custody. It is stated that the petitioner has involved in all 13 cases. In English version, it is stated that the detenue is involved in more than four cases. Though the detenue was in judicial custody in Cr. No. 19/2015, he continued to indulge in criminal activities. Kannada version shows that the detenue was released on bail in Cr. No. 19/2015 on 27.04.2015. The detenue is on bail in S.C. No. 252/2013 and C.C. No. 411/2015 also. The respondents do not dispute that the bail order was not produced before the Detaining Authority or before the Advisory Board. The Hon''ble Supreme Court in Rushikesh Tanaji Bhoite Vs. State of Maharashtra and Others, has observed as follows at Para-10:--

"10. In the present case since the order of bail dated August 15, 2010 was neither placed before the detaining authority at the time of passing the order of detention nor the detaining authority was aware of the order of bail, in our view, the detention order is rendered invalid. We cannot attempt to assess in what manner and to what extent consideration of the order granting bail to the detenu would have effected the satisfaction of the detaining authority, but suffice it to say that non-placing and non-consideration of the material as vital as the bail order has vitiated the subjective decision of the detaining authority. "

In the case relied upon by the learned Government Advocate also the majority view is that non-supply of the Tamil version of the English document, in the circumstances, renders the detention illegal.

In the circumstances of this case and the decisions referred to above, the detention order cannot be sustained in law.

Accordingly, the writ petition is allowed and the impugned order of detention dated 09.07.2015 vide Annexure-A, which has been confirmed as per order dated 20.08.2015 vide Annexure-E is hereby quashed. The respondents are hereby directed to release the detenue forthwith, if he is not required in any other case. This will not come in the way of the Respondents taking action in accordance with law.

Office is directed to furnish copy of the operative portion of the order to the learned counsel for the petitioner.