Karnataka High Court
Abdul Rasheed Assadi vs State Of Karnataka on 21 January, 2025
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W.P.H.C. No.104/2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JANUARY, 2025
PRESENT
THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
W.P.H.C. NO.104/2024
BETWEEN:
ABDUL RASHEED ASSADI
S/O ABDUL RAHIM ASSADI
AGED ABOUT 54 YEARS
R/AT. NEAR SALIHATH SCHOOL
HOODE, PADUTHONSE VILLAGE
UDUPI TALUK, UDUPI-576115.
...PETITIONER
Digitally signed
by ARSHIFA (BY SMT. HALEEMA AMEEN, ADV.,)
BAHAR KHANAM
AND:
Location: HIGH
COURT OF
KARNATAKA 1. STATE OF KARNATAKA
REP. BY CHIEF SECRETARY
HOME DEPARTMENT
VIDHANA SOUDHA, BANGALORE.
2. DISTRICT MAGISTRATE
UDUPI DISTRICT
UDUPI-576101.
3. SUPERINTENDENT OF POLICE
UDUPI DISTRICT
UDUPI-576101.
4. SUPERINTENDENT OF PRISON
CENTRAL PRISON, KALABURAGI.
...RESPONDENTS
(BY SRI. B.A. BELLIAPPA, SPP-I WITH
SRI. M.V. ANOOP KUMAR, HCGP)
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THIS WPHC IS FILED UNDER ARTICLE 226 AND 227 OF
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE
NATURE OF HABEAS CORPUS OR ANY OTHER APPROPRIATE
ORDER, QUASHING THE DETENTION ORDER DATED
26.07.2024, PRODUCED AT ANNEXURE-B HEREWITH, PASSED
BY THE DISTRICT MAGISTRATE/DEPUTY COMMISSIONER-R2
HEREIN, VIDE PROCEEDINGS NO.MAG (2)
CR.251/2024/E162125 C-1, ON THE REFERENCE OF
RESPONDENT NO.3 ON HIS REPORT
NO.01/GOONDA/DCRB/UD/2024 DATED 26.07.2024, THE
KANNADA VERSION OF WHICH AS FURNISHED BY R2 IS
PRODUCED HEREWITH AT ANNEXURE B1 AND RELEASE THE
DETENUE, BY NAME ABDUL RAKIB ASSADI & ETC.
THIS W.P.H.C. HAVING BEEN HEARD AND RESERVED ON
15.01.2025, COMING ON FOR PRONOUNCEMENT OF ORDER,
THIS DAY VIJAYKUMAR A. PATIL J., MADE THE FOLLOWING:
CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN
and
HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
CAV ORDER
(PER: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL)
The petitioner is the father of the detenue by name
Abdul Rakib Assadi seeking prayer to set free the detenue
by issuing a writ in the nature of Habeas Corpus and by
quashing the order dated 26.07.2024 passed by the
respondent No.2-District Magistrate, Udupi.
2. The respondent No.2 has passed the order of
detention dated 26.07.2024 by exercising the power
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conferred under sub-Section (2) of Section 3 of the
Karnataka Prevention of Dangerous Activities of
Bootleggers, Drug-Offenders, Gamblers, Goondas
(Immoral Traffic Offenders, Slum-Grabbers and Video or
Audio Pirates) Act, 1985 (hereinafter referred to as 'the
Goonda Act').
3. Ms. Haleema Ameen, learned counsel appearing
for the petitioner makes the following submissions:
(a) The impugned order of detention passed by the
respondent No.2 is without application of mind and there
is no subjective satisfaction whatsoever with regard to the
conduct of the detenue as to how his acts would be
detrimental to the maintenance of public order.
(b) The impugned order passed against the detenue
is not communicated to him and no opportunity was given
to the detenue to defend himself as provided under the
law.
(c) The impugned order of detention is passed
without following due procedure of law, in violation of
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principles of natural justice and is an abuse of process of
law.
(d) The material collected by the respondent No.2 for
passing the impugned order does not disclose that there
was a likelihood of disturbance to public life and public
peace.
(e) The detenue had given a representation to the
respondents and the said representation does not seem to
be considered by the respondents as well as the Advisory
Board.
(f) The respondent No.2 has not mentioned the
provision of law and the period of detention in the
impugned order.
(g) The impugned order of detention is passed by the
respondent No.2 which is contrary to Sections 3(1), 3(2)
and 13 of the Goonda Act. On the aforesaid grounds, she
seeks to set aside the impugned order of detention and
further seeks to release the detenue.
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4. Per contra, Sri.B.A.Belliappa, learned State
Public Prosecutor-I along with Sri.M.V.Anoop Kumar,
learned High Court Government Pleader for the
respondents supports the impugned order of detention and
makes the following submissions:
(a) It is submitted that the respondent No.2 has
passed a well considered order by taking note of the
pendency of 10 cases against the detenue. The impugned
order of detention elaborates the subjective satisfaction of
the Authority for taking the decision of detention.
(b) It is further submitted that the detenue has
indulged in 10 crimes which are heinous in nature covering
the period from 2023 to 2024. It is also submitted that the
detenue, on release from the prison after obtaining bail,
has committed the offences which demonstrate that he is a
habitual offender and his conduct demonstrates that the
public order of the locality is disturbed.
(c) It is contended that the detenue was served
with the grounds of detention and the detention order, he
submitted a representation, the same was considered by
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the State Government and it was informed to him about
the rejection of his representation. It is also submitted
that the State Government approved the order of detention
and after confirmation of the order of detention, the same
was also communicated to the detenue.
(d) It is also contended that the order of detention
and the Government order of confirmation/approval of the
order of detention along with all the records were placed
before the Advisory Board. The date of hearing before the
Advisory Board was communicated to the detenue and the
petitioner. The Advisory Board after considering the
matter, sent the report to the State Government and the
same was placed before the Government. The Advisory
Board is of the opinion that the orders are as per the law
and it has satisfied that grounds for detention have been
made out. It is submitted that the procedure contemplated
under the Goonda Act and the provisions of the
Constitution has been strictly complied. Hence, he seeks to
dismiss the writ petition.
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5. We have heard the learned counsel for the
petitioner, learned State Public Prosecutor and perused the
material available on record including the original records
placed by the State Government. We have bestowed our
anxious consideration on the submissions advanced on
both sides. The point that arises for consideration in this
petition is "Whether the order of detention dated
26.07.2024 passed by the respondent No.2 detaining
the son of the petitioner Abdul Rakib Assadi is
sustainable under law?"
6. To consider the issue involved in the petition, it
would be useful to refer to Sections 3, 8, 10, 11 and 13 of
the Goonda Act which are extracted hereinbelow:
3. Power to make orders detaining certain
persons.- (1) The State Government may, if
satisfied with respect to any bootlegger or drug-
offender or gambler or goonda or [Immoral Traffic
Offender or Slum-Grabber or Video or Audio pirate]
that with a view to prevent him from acting in any
manner prejudicial to the maintenance of public
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order, it is necessary so to do, make an order
directing that such persons be detained.
(2) If, having regard to the circumstances
prevailing or likely to prevail in any area within the
local limits of the jurisdiction of a District
Magistrate or a Commissioner of Police, the State
Government is satisfied that it is necessary so to
do, it may, by order in writing, direct that during
such period as may be specified in the order, such
District Magistrate or Commissioner of Police may
also, if satisfied as provided in sub-section (1),
exercise the powers conferred by the sub-section :
Provided that the period specified in the order
made by the State Government under this sub-
section shall not, in the first instance, exceed three
months, but the State Government may, if satisfied
as aforesaid that it is necessary so to do, amend
such order to extend such period from time to time
by any period not exceeding three months at any
one time.
(3) When any order is made under this
section by an officer mentioned in sub-section (2),
he shall forthwith report the fact to the State
Government together with the grounds on which
the order has been made and such other particulars
as, in his opinion, have a bearing on the matter and
no such order shall remain in force for more than
twelve days after the making thereof, unless, in the
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meantime, it has been approved by the State
Government.
8. Grounds of order of detention to be
disclosed to persons affected by the order.-
(1) When a person is detained in pursuance
of a detention order, the authority making the
order shall, as soon as may be, but not later than
five days from the date of detention, communicate
to him the grounds on which the order has been
made and shall afford him the earliest opportunity
of making a representation against the order to the
State Government.
(2) Nothing in sub-section (1) shall require
the authority to disclose facts which it considers to
be against the public interest to disclose.
10. Reference to Advisory Board.-
In every case where a detention order has
been made under this Act the State Government
shall within three weeks from the date of detention
of a person under the order, place before the
Advisory Board constituted by it under section 9,
the grounds on which the order has been made and
the representation, if any, made against the order,
and in case where the order has been made by an
officer, also the report by such officer under sub-
section (3) of section 3.
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11. Procedure of Advisory Board.-
(1) The Advisory Board shall after considering
the materials placed before it and, after calling for
such further information as it may deem necessary
from the State Government or from any person
called for the purpose through the State
Government or from the person concerned, and if,
in any particular case, the Advisory Board considers
it essential so to do or if the person concerned
desire to be heard, after hearing him in person,
submit its report to the State Government, within
seven weeks from the date of detention of the
person concerned.
(2) The report of the Advisory Board shall
specify in a separate part thereof the opinion of the
Advisory Board as to whether or not there is
sufficient cause for the detention of the person
concerned.
(3) When there is a difference of opinion
among the members forming the Advisory Board,
the opinion of the majority of such members shall
be deemed to be the opinion of the Board.
(4) The proceedings of the Advisory Board
and its report, excepting that part of the report in
which the opinion of the Advisory Board is
specified, shall be confidential.
(5) Nothing in this section shall entitle any
person against whom a detention order has been
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made to appear by any legal practitioner in any
matter connected with the reference to the
Advisory Board.
13. Maximum period of detention.-
The maximum period for which any person
may be detained, in pursuance of any detention
order made under this Act which has been
confirmed under section 12 shall be twelve months
from the date of detention.
7. The aforesaid law mandates that the State
Government may, if satisfied with respect to any goonda as
defined under Section 2(g) of the Goonda Act, that with a
view to prevent him from acting in any manner prejudicial
to the maintenance of public order, make an order directing
that such person be detained. Sub-section (2) of Section 3
of the Goonda Act empowers the District Magistrate or the
Commissioner of Police to exercise the powers conferred
under sub-Section (1) of Section 3 of the Goonda Act.
Sub-section (3) of Section 3 of the Goonda Act mandates
that if the order is passed by the Officer under sub-Section
(2) of Section 3 of the Goonda Act, he shall forthwith report
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the fact to the State Government along with the grounds
on which the order has been made. The order made by the
Officer under sub-Section (2) shall remain in force for 12
days unless in the meantime, the State Government
approves it. Section 8 of the Goonda Act mandates that
the grounds of detention are required to be served on the
detenue within 5 days from the date of detention and shall
offer him the earliest opportunity of making a
representation against the order to the State Government.
Section 10 of the Goonda Act mandates that the order of
detention made under the Goonda Act shall be placed
before the Advisory Board within a period of 3 weeks from
the date of detention order by the State Government along
with grounds on which the order has been made and
representation, if any, made against the order. Section 11
of the Goonda Act provides the procedure to be followed by
the Advisory Board. The Advisory Board is empowered to
consider providing personal hearing to the detenue and
thereafter submit report to the State Government within 7
weeks from the date of detention of the person concerned.
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The Advisory Board is required to forward its opinion as to
whether or not there is sufficient cause for the detention of
the person concerned. The opinion of the Advisory Board is
confidential. Section 13 of the Goonda Act indicates that
the maximum period for detention is 12 months from the
date of detention.
8. The Hon'ble Supreme Court in the case of
AMEENA BEGUM Vs. STATE OF TELANGANA1 has held
in paragraph 28 as under:
28. In the circumstances of a given case, a
constitutional court when called upon to test the
legality of orders of preventive detention would be
entitled to examine whether:
28.1. The order is based on the requisite
satisfaction, albeit subjective, of the detaining
authority, for, the absence of such satisfaction as to
the existence of a matter of fact or law, upon which
validity of the exercise of the power is predicated,
would be the sine qua non for the exercise of the
power not being satisfied;
1
(2023) 9 SCC 587
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28.2. In reaching such requisite satisfaction, the
detaining authority has applied its mind to all
relevant circumstances and the same is not based
on material extraneous to the scope and purpose of
the statute;
28.3. Power has been exercised for achieving the
purpose for which it has been conferred, or
exercised for an improper purpose, not authorised
by the statute, and is therefore ultra vires;
28.4. The detaining authority has acted
independently or under the dictation of another
body;
28.5. The detaining authority, by reason of self-
created rules of policy or in any other manner not
authorised by the governing statute, has disabled
itself from applying its mind to the facts of each
individual case;
28.6. The satisfaction of the detaining authority
rests on materials which are of rationally probative
value, and the detaining authority has given due
regard to the matters as per the statutory
mandate;
28.7. The satisfaction has been arrived at bearing
in mind existence of a live and proximate link
between the past conduct of a person and the
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imperative need to detain him or is based on
material which is stale;
28.8. The ground(s) for reaching the requisite
satisfaction is/are such which an individual, with
some degree of rationality and prudence, would
consider as connected with the fact and relevant to
the subject-matter of the inquiry in respect whereof
the satisfaction is to be reached;
28.9. The grounds on which the order of preventive
detention rests are not vague but are precise,
pertinent and relevant which, with sufficient clarity,
inform the detenu the satisfaction for the detention,
giving him the opportunity to make a suitable
representation; and
28.10. The timelines, as provided under the law,
have been strictly adhered to.
9. Keeping in mind the above legal position and
the enunciation of law laid down by the Hon'ble Supreme
Court referred supra, it would be useful to extract the
relevant dates and events for the purpose of examining the
compliance of mandate of law as follows:
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(a) The respondent No.2 has passed the order of
detention along with the grounds of detention on
26.07.2024.
(b) The order of detention and the grounds of
detention were served on the detenue on 26.07.2024
which is evident from the original order of detention
available in the file.
(c) The detenue has submitted written representation
dated 28.07.2024 through the Superintendent, Central
Prison, Kalaburagi.
(d) The representation of the detenue was forwarded
by the Superintendent, Central Prison, Kalaburagi to the
Advisory Board on 28.07.2024.
(e) On 03.08.2024, the State Government considered
the representation submitted by the detenue and rejected
the same by issuing endorsement.
(f) On 03.08.2024, the State Government approved
the order of detention of the respondent No.2.
(g) On 04.08.2024, the detenue was informed about
the rejection of his representation.
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(h) The order of detention, grounds of detention
along with the approval of the State Government and the
records were placed before the Advisory Board on
05.08.2024.
(i) The Advisory Board fixed a meeting on
20.08.2024. On the said day, the detenue was produced
before the Advisory Board through video conference from
the Central Prison, Kalaburagi. The Advisory Board heard
the detenue, perused the material and expressed that
sufficient cause and grounds have been made out for
detention of Sri.Abdul Rakib Assadi.
The aforesaid dates and events clearly indicate that
the mandate of Sections 3, 8, 10, 11 and 13 of the
Goonda Act has been complied by the respondent -
Authorities and there is no violation as alleged by the
learned counsel for the petitioner.
10. Insofar as the contention of the petitioner that
the impugned order of detention is passed without
application of mind and there is no subjective satisfaction,
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the application of mind of the Authorities is evident from
the order of detention and the grounds of detention
produced at Annexures-A and B. The respondent No.2 has
taken note of the fact that the detenue is in the habit of
committing the offence and abetting the commission of
offence. The finding of the Detaining Authority that the
name of the detenue was entered in the rowdy register and
the detenue is involved in heinous crimes like preparation
and assembly for dacoity, attempt to murder, rioting,
molestation, theft and offence under the Arms Act, 1959
(hereinafter referred to as 'the Arms Act'), as well as the
Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as 'the NDPS Act'). The act of the
detenue from 2023 to 2024 has affected the human life of
the area, and his conduct is prejudicial to maintain the
public order which is evident from the reasons assigned in
the impugned order of detention. The subjective
satisfaction of the Detaining Authority cannot be
substituted or adjudged by the writ Court as the Appellate
Authority nor it can substitute its views. The writ court is
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required to look into as to whether the Detaining Authority,
while passing the order of detention, has taken into
consideration the relevant factors / material to pass the
order of detention and the said material is sufficient to
come to the conclusion that the conduct and the act of the
detenue is detrimental to the public order. In the case on
hand, the Detaining Authority has considered the pendency
of 10 cases against the detenue from 2023 to 2024 and
recorded the detailed reasons that despite booking of the
case against the detenue, his activities could not be
controlled. The finding of the Detaining Authority is that
the activities of the detenue are detrimental to the public
order and his activities cannot be curbed to the ordinary
laws. In view of the specific finding and consideration of
the relevant material by the Detaining Authority, we are of
the view that the impugned order of detention passed by
the respondent No.2 has withstood the test of subjective
satisfaction. The contrary contention urged by the learned
counsel for the petitioner is rejected.
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11. Insofar as the second contention of the
petitioner that the order of detention was not
communicated to the detenue, no opportunity was given to
the detenue to defend himself and the impugned order of
detention is passed without following due procedure of law,
in violation of principles of natural justice and is an abuse
of process of law. We have perused the original orders
placed before us and also the statement of objection filed
by the respondent which demonstrate that the order of
detention and the grounds of detention were served on the
detenue and he has put his thumb impression. The
detenue has submitted his representation dated
28.07.2024 and the said representation was considered by
the State Government and rejected by issuing endorsement
dated 03.08.2024 which was communicated to the detenue
vide letter dated 04.08.2024. The detenue was produced
before the Advisory Board on 20.08.2024 and the Advisory
Board has provided him an opportunity to submit his
grievance. Insofar as non-following of the procedure by
the Authorities is concerned, we have already recorded the
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finding supra with regard to the compliance of mandate of
the Goonda Act by the Authorities. Hence, the contrary
contention urged by the learned counsel for the petitioner
has no merit and is accordingly rejected.
12. Insofar as the third contention that the material
collected by the respondent No.2 for passing the impugned
order does not disclose that there was a likelihood of
disturbance to public life and public peace, the Detaining
Authority is required to satisfy itself with regard to the
subjective satisfaction of the fact that the act of the
detenue would be detrimental to the public order and not
the public peace as contended by the learned counsel for
the petitioner. The detention order clearly indicates that
the detenue is involved in the following crimes:
Crime numbers and Sections
Sl.
Police Station invoked against Detenue Mr.
No.
Abdul Rakib Assadi.
1 Manipal P S Crime No.11/2023 u/s 399, 402
of IPC and 8 (c), 22(b),
20(b)(ii)(a) of NDPS Act
2 Malpe P S Crime No.37/2023 u/s 324 of
IPC
3 Shirva P S Crime No.42/2023 u/s 399 and
402 of IPC
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4 Hebri P S Crime No.50/2023 u/s 27 (b) of
NDPS Act
5 Malpe P S Crime No.122/2023 u/s 323,
324, 354, 504, 506 r/w 34 of
IPC
6 Manipal P S Crime No.154/2023 u/s 379 of
IPC
7 Malpe P S Crime No.05/2024 u/s 4,
25(1)(b) of Arms Act
8 Udupi Town P Crime No.95/2024 u/s 427, 379,
S 402, 399, 511 of IPC and 27 of
Arms Act
9 Udupi Town P Crime No.98/2024 u/s 143, 147,
S 148 R/W 149 of IPC and 27 of
Arms Act
10 Udupi Town P Crime No.100/2024 u/s 143,
S 147, 148, 341, 324, 307 r/w 149
of IPC and 27 of Arms Act
13. There are 10 cases registered against the
detenue. Crime No.11/2023 of Manipal police station is
registered against the detenue for making preparation to
commit dacoity and offences punishable under the
provisions of NDPS Act. Crime No.37/2023 is registered
against the detenue for assaulting the complainant's son on
the chest with stick. In Crime No.42/2023, the detenue
was charged again for preparation for committing dacoity
along with others. In Crime No.50/2023, the detenue was
charged for the offences punishable under the NDPS Act.
In Crime No.122/2023, the detenue was charged for the
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offences of assault and outraging the modesty of woman
and other offences. In Crime No.154/2023, the detenue
was charged for the offence of theft of motorcycle. In
Crime No.5/2024, the detenue was charged for the
offences under Sections 4, 25(1)(b) of the Arms Act as the
detenue was making ruckus with deadly weapon in public
place along with others. In Crime No.95/2024, the detenue
was charged for the offences of assembling for the purpose
of committing dacoity, theft and mischief. In Crime
No.98/2024, the detenue was charged for the offences of
unlawful assembly and rioting with deadly weapon. In
Crime No.100/2024, the detenue was charged for the
offences of unlawful assembly, rioting with deadly weapon,
wrongful restraining a person, assault and attempt to
murder. The offences committed by the detenue from
2023 to 2024 are continuous and consistent. All the cases
registered against the detenue are pending and the
material available on record and the consideration of such
material by the Detaining Authority indicates that, the
Detaining Authority has applied his mind and all relevant
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circumstances, the Authority acted independently, and the
satisfaction arrived is based on live proximate link between
past conduct and present act of the detenue, and the
necessary to pass the detention order. We have also kept
in mind that it is the primary duty of the State as a
guardian to protect the lives and liberties of the citizens
and the said duty of the State nowadays has become
onerous in view of the anti-societal elements. Keeping
these things in mind, we are of the considered view that
the consistent conduct of the detenue has created fear in
the mind of public at large. Hence, we do not find any
error in the order of detention passed by the respondent
No.2 calling for any interference.
14. The order of detention clearly indicates that the
respondent No.2 has satisfied that the activities of the
detenue cannot be curbed by the ordinary law of the land
hence, proceeded to pass the order of detention under the
Goonda Act. The Detaining Authority has clearly recorded
the finding that the consistent conduct of the detenue has
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created insecurity in the minds of general public of the
locality and his activities have disturbed the tempo of
public life of the locality. The said finding of the Detaining
Authority is based on the material available before her from
the cases referred supra. We have perused the charge
sheet material and other material placed insofar as the
aforesaid 10 cases registered against the detenue and we
are convinced that the conduct of the detenue is consistent
from 2023 to 2024 in committing the heinous crimes
referred supra and his act is detriment to public order as
rightly recorded in the impugned order. This Court has
already observed that while exercising the jurisdiction
under Article 226 of the Constitution of India, this Court
cannot sit as an Appellate Authority over the subjective
satisfaction of the Detaining Authority and record the
different finding unless the reasons are extraneous. The
prima facie material available on record indicates that the
conduct of the detenue is consistent and has created
insecurity in the minds of the general public in the locality
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affecting the public order. Hence, the contrary contentions
are rejected.
15. Another contention that in the impugned order,
there is no mention with regard to provision of law and the
period of detention. The order of detention approved by
the State Government clearly indicates the detention period
as one year and also refers the provision of law. Hence,
the said contention is rejected.
16. The contention that the impugned order of
detention is passed by the respondent No.2 which is
contrary to Sections 3(1), 3(2) and 13 of the Goonda Act is
also required to be rejected in view of the clear finding
recorded by us supra with regard to the procedure followed
by the Detaining Authority.
17. For the aforementioned reasons, we proceed to
pass the following:
- 27 -
NC: 2025:KHC:2482-DB
W.P.H.C. No.104/2024
ORDER
The writ petition is dismissed.
No order as to costs.
Sd/-
(ANU SIVARAMAN)
JUDGE
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
RV
List No.: 3 Sl No.: 1