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IN THE HIGH COURT OF KARNATAKAGULBARGA BENCH

DATED THIS THE 2ND DAY OF DECEMBER 2014

PRESENT

THE HON’BLE MR.JUSTICE ASHOK B. HINCHIGERI

AND

THE HON’BLE MR. JUSTICE B. SREENIVASE GOWDA

WRIT PETITION No.206009/2014 (GM-RES)

BETWEEN:

Smt. Sangeeta, W/o Satish,Aged 22 years,Yakoob Maniyar Colony,Near Head Post Office,Gulbarga – 585101. …Petitioner

(By Sri Chandrashekara K. Senior Counsel forSri Prashanth M. Biradar & Venkatesh C. Mallabadi, Advocates)

AND:

1. State of KarnatakaBy Prl. Secretary, Home,Vidhana Soudha,Bangalore – 560001.

2. Deputy Commissioner and DistrictMagistrate, Gulbarga.

3. Senior Superintendent,Central Prision, Bijapur.

4. Senior Superintendent,Central Prision, Bijapur. ... Respondents

(By Sri Manvendra Reddy, Govt. Advocate)

R

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This Writ Petition is filed under Articles 226 & 227 of theConstitution of India praying to issue a writ, direction or order inthe nature of certiorari by quashing the order bearing No.REV/DCG/MAG/835/2013-14/1849 dated 26.05.2014 which isproduced at Annexure “A” and “B” passed by respondent No.2 andall consequential action including confirmation by the respondentNo.1 in order bearing No.HD 285 SST 2014 dated 2806.2014(Annexure “F”) as illegal and void abintio and consequently.

This Writ Petition coming on for Orders this day, ASHOK B.HINCHIGERI J., made the following:

ORDER

The petitioner is the wife of Sri Satish, who is detained

in the Central Prison, Bijapur pursuant to the impugned

order passed by the second respondent in exercise of power

conferred by Section 3(1) of the Karnataka Prevention of

Dangerous Activities of Bootleggers, Drug Offenders,

Gamblers, Goondas Immoral Traffic Offenders and Slum

Grabbers Act, 1985 (herein after referred to as ‘Goondas Act’).

The detenu is subsequently shifted to the Central Prison in

Gulbarga.

2. Sri Chandrashekhar K., learned counsel appearing

for Sri Venkatesh C Mallabadi for the petitioner submits that

the impugned order is bad, as no opportunity is afforded to

the detenu to give representation to the State Government

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against the order of detention. In support of his submissions,

he read out the provisions contained in Section 8(1) of the

Goondas Act, which is extracted herein below:

“8 (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”.

3. Sri Chandrashekhar submits that the preventive

detention is violative of Article 22(5) of the Constitution of

India, which reads as follows:

“22 (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.”

4. He submits that there was no compelling necessity to

pass an order of detention, as the detenu was already in

judicial custody. He submits that the impugned order is

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vitiated, as the pre-condition prescribed under Section 3(1)

and (2) of the Goondas Act is not present in the instant case.

Section 3(1) and (2) of the Goondas Act read as follows:

“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 that

with a view to prevent him from acting in any manner

prejudicial to the maintenance of public 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.”

5. He relies on another Division Bench judgment, dated

08.01.2014 passed in WP (HC) No.101/2013, wherein the

order of detention was quashed, as it was passed without

giving proper reasons and particularly for passing the order of

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detention in respect of a person who was already in judicial

custody and when there was no likelihood of his getting the

bail within the period of detention.

6. He submits that some of the documents supporting

the detention order are in English. As the detenu knows only

Kannada, the Kannada translated version of the documents

ought to have been furnished to the detenu. He also

complains that some of the copies of the supporting

documents were not legible.

7. He submits that the impugned order is not reflective

of application of mind. In as many as three criminal cases, he

has already been acquitted. The non-consideration of the

order of acquittal vitiates the decision-making process. He

also complains of non-consideration of some bail applications

and of the bail orders granted by the competent courts.

8. He submits that the impugned order is passed in a

slip-shod manner. Although the detenu was in the prison at

Gulbarga, he is asked to submit his representation through

the Superintendent of Police, Central Prison, Bangalore. He

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also submits that the grounds of detention are at variance

with the impugned detention order.

9. The learned counsel sought to draw support from the

judgment of the Apex Court in the case of NUTAN J. PATEL

(Ms) V. S. V. PRASAD AND ANOTHER reported in 1996 SCC

(Cri) 269, wherein it is held that if the detenu is not informed

of his right to make a representation to the concerned

authority, the order of detention becomes unsustainable.

10. He also relies on the judgment of this Court, dated

06.07.2007 passed in WP (HC) No.50/2007 wherein the

detention orders were quashed on the short ground of the

detenu not being informed of his right to make a

representation to the State Government. He submits that the

said view is reiterated in the subsequent cases – Division

Bench’s judgments dated 09.07.2014 in WP (HC) No.20/2014

and dated 03.11.2014 in WP (HC) No.159/2014. He read out

the portion below head note A from the Hon’ble Supreme

Court’s decision in the case of KUNDANBHAI DULABHAI

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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.”

11. He also relies upon the Apex Court judgment in

the case of KAMLESHKUMAR ISHWARDAS PATEL V.

UNION OF INDIA AND OTHERS reported in 1995 SCC (Cri)

643. Para 49 read out by him as follows:

“49. At this stage it becomes necessary to deal with

the submissions of the learned Additional Solicitor

General that some of the detenus have been indulging

in illicit smuggling of narcotic drugs and psychotropic

substances on a large scale and are involved in other

anti-national activities which are very harmful to the

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national economy. He has urged that having regard to

the nature of the activities of the detenus the cases do

not justify interference with the orders of detention

made against them. We are not unmindful of the

harmful consequences of the activities in which the

detenus are alleged to be involved. But while

discharging our constitutional obligation to enforce the

fundamental rights of the people, more especially the

right to personal liberty, we cannot allow ourselves to

be influenced by these considerations. It has been said

that history of liberty is the history of procedural

safeguards. The Framers of the Constitution, being

aware that preventive detention involves a serious

encroachment on the right to personal liberty, took care

to incorporate, in clauses (4) and (5) of Article 22,

certain minimum safeguards for the protection of

persons sought to be preventively detained. These

safeguards are required to be “zealously watched and

enforced by the Court”. Their rigour cannot be

modulated on the basis of the nature of the activities of

a particular person. We would, in this context, reiterate

what was said earlier by this Court while rejecting a

similar submission: (SCC para 4)

“Maybe that the detenu is a smuggler whose tribe

(and how their numbers increase!) deserves no

sympathy since its activities have paralysed the Indian

economy. But the laws of preventive detention afford

only a modicum of safeguards to persons detained

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under them and if freedom and liberty are to have any

meaning in our democratic set-up, it is essential that at

least those safeguards are not denied to the detenus.”

12. He relies on the Hon’ble Supreme Court’s

judgment in the case of REKHA V. STATE OF TAMIL NADU

THRUOGH SECRETARY TO GOVERNMENT AND ANOTHER

reported in (2011) 2 SCC (Cri) 596. He read out the portion

below head note B, which is as follows:

“Where a detention order is served on a person

already in jail, there should be a real possibility of

release of a person on bail who is already in custody

provided he has moved a bail application which is

pending. It follows logically that if no bail application is

pending, then there is no likelihood of the person in

custody being released on bail, and hence the detention

order will be illegal. However, there can be an exception

to this rule, that is, where a co-accused whose case

stands on the same footing had been granted bail. In

such cases, the detaining authority can reasonably

conclude that there is likelihood of the detenu being

released on bail even though no bail application of his is

pending, since most courts normally grant bail on this

ground. However, details of such alleged similar cases

must be given, otherwise the bald statement of the

authority cannot be believed.”

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13. He brings to the notice the Hon’ble Supreme

Court’s judgment in the case of MEHRUNISSA V. STATE OF

MAHARASHTRA reported in LAWS (SC)-1981-2-63 for

advancing the submission that the detenu is entitled to be

supplied with the copies of all material documents instead of

having to rely upon his memory in regard to the contents of

the documents. The failure of the detaining authority to

supply the copies of such documents vitiates the detention

order. For advancing the submission that the confirmation of

detention order is bad, if illegible copies are supplied to the

detenu, he relies on the Apex Court judgment in the case of

BHUPINDER SINGH V. UNION OF INDIA AND OTHERS

reported in (1987) SCC (Cri) 328. In this regard, he has also

relied upon the Division Bench’s decision passed on

14.08.2014 in WP (HC) No.57/2014.

14. He relies on the Division Bench judgment, dated

23.08.2011 passed in W.P. (HC) No.119/2011, wherein the

detention order came to be quashed, as the detaining

authority had not made available to the detenu the

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documents on the basis of which the subjective satisfaction

was recorded.

15. He has also referred to the Division Bench judgment

dated 04.04.2003 passed in WP (HC) No.126/2002, wherein it

is held that the non-supply of all the documents relied upon

by the Government have come in the way of the detenu

making effective representation, which vitiates the detention

order.

16. He submits that the non-supply of all the Kannada

translated version of the documents amounts to denial of

right of being communicated the grounds and of being

afforded the opportunity of making the representation against

the detention order. He sought to draw support from the Apex

Court’s judgment in the case of HADIBANDHU DAS V.

DISTRICT MAGISTRATE, CUTTACK AND ANOTHER

reported in AIR 1969 SC 43.

17. He submits that the opinion of Advisory Board is

binding only on the Government. The advisory opinion is

never intended to be open to the challenge on merits before

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any forum. Therefore, on the ground that the Advisory Board

has opined against the detenu, his right to challenge the

detention order cannot be taken away. In this regard, he

relies on the Apex Court judgment in the case of AKSHOY

KONAI V. STATE OF WEST BENGAL reported in 1973 SCC

(Cri) 317.

18. Per contra Sri Manvendra Reddy, learned

Government Advocate submits that the detenu is a habitual

offender. He has been assaulting the people with deadly

weapons, committing murders, kidnapping, committing

dacoity, etc. He is involved in 9 such cases of different police

stations of Gulbarga. He submits that the detenu is a rowdy-

sheeter.

19. He submits that the detaining authority has

furnished to the detenu the grounds of detention and the

supporting documents in Kannada and English, which the

detenu knows. He further states that detenu even knows

both Kannada and English languages. He submits that the

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detaining authority himself has said in his order dated

26.05.2014 (Annexure-‘C’) as follows:

“ ¤ÃªÀÅ F DeÉÕAiÀÄ §UÉÎ £À£ÀUÉ (§AzÀs£ÀzÀ ¥Áæ¢üPÁj) ªÀÄ£À«AiÀÄ£ÀÄß

¸À°è¸À®Ä EZÉÒ ¥ÀlÖ°è ¤ÃªÀÅ ªÀÄÄPÀÛªÁV CAvÀºÀ ªÀÄ£À«AiÀÄ£ÀÄß ¤Ã«gÀĪÀ

PÁgÁUÀȺÀzÀ C¢üÃPÀàPÀgÀ ªÀÄÄSÁAvÀgÀ £À£ÀUÉ ¸À°è¸À§ºÀÄzÀÄ.”

20. He submits that the detenu is also called upon to

give his representation to the Advisory Board, if he so desires.

The detenu has, neither to the detaining authority nor to the

Advisory Board, given any representation. He submits that

all the procedural requirements are complied with in the

instant case. The impugned detention order is passed in the

larger interest of public and with a view to maintain peace

and tranquility.

21. He submits that the ground that the supporting

documents were not legible is being taken for the first time.

Such a ground was not even raised before the Advisory Board.

He submits that it is absolutely fallacious that the detenu

does not know English. As a matter of fact, the detenu

studied in English medium at Linn Memorial English Medium

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School, H.P.S. Jewargi Road, Gulbarga from 1st standard to

7th standard between 1989 and 1996. Thereafter, the detenu

studied in English medium in Vijaya Vidyalaya, Gulbarga

from 8th standard to 10th standard from 1996 to 1999. He

has also produced the certificates issued by the said schools

as Annexures-R7 and R8.

22. The learned Government Advocate relies on the

Apex Court judgment in the case of G. REDDEIAH vs.

GOVERNMENT OF ANDHRA PRADESH reported in (2012) 2

SCC 389 wherein the detention order was held to be valid, as

the State arrived at a definite conclusion that the provisions

of ordinary criminal law were not sufficient in the ordinary

course to deal firmly because of his being a habitual offender

and after satisfying itself as to all aspects passed an order of

detention with a view to prevent him from indulging in such

offences. While the position that the non-consideration of bail

order amounts to non-application of mind is reiterated, it is

also held that if the detaining authority is aware of the fact of

granting the bail and passes the detention order after due

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satisfaction in that regard, the detention order would be valid.

He read out para 21 of the said decision, which is extracted

hereinbelow:

“21. The grounds of detention also show that the

detaining authority, after scrutinising all the details

including various orders of arrest and release, bail on

various dates and noting that he is habitually indulging

in trespass in forest area, illicit cutting, felling,

smuggling and transporting of red sanders wood from

the reserved forest owned by the State, arrived at a

definite conclusion that the provisions of normal law

were not sufficient in the ordinary course to deal firmly

because of his habitual nature and after satisfying all

aspects including the fact that the detenu was in jail

from 9-10-2010 to 10-11-2010 and the factum of

release from the jail in 4 criminal cases, passed an

order of detention with a view to prevent him from

further indulging in such offences.”

23. He also relies on the Apex Court judgment in the

case of SUBRAMANIAN vs. STATE OF TAMIL NADU AND

ANOTHER reported in (2012) 4 SCC 699 to advance the

submission that if there is a compelling necessity to detain a

person in order to prevent him from indulging in committing

the crimes in future, which are prejudicial to the maintenance

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of public order, the Court does not interfere with the

subjective satisfaction reached by the detaining authority

except on exceptional and extremely limited grounds. The

object of law of preventive detention is not punitive but only

preventive. Further, that the action of the executive in

detaining a person being only precautionary, the matter is

necessarily to be left to the discretion of the executive

authority. He also relies on the Division Bench judgment,

dated 22.09.2014 passed in W.P.(H.C.) No.20013/2014

wherein it is held that if there is consistency in the anti social

activities of the detenu, there is no reason to quash the order

of detention.

24. The submissions of learned counsel have received

our thoughtful consideration. The following questions fall for

our consideration:

(i) Whether the impugned detention order is bad as

the detenu is not informed of the right of

representation to the Government?

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(ii) Whether the non-supply of the Kannada version of

all the documents supporting the detention order

and some portion of the documents being allegedly

illegible warrant the release of the detenu?

(iii) Is the petitioner entitled to succeed on the ground

of non-application of mind on the part of the

detaining authority?

(iv) Whether the detaining authority is in a position to

show that there was compelling necessity to pass

the impugned order?

In Re.Question No.(i)

25. The right to make representation necessarily

implies that the person detained must be informed of his

right to make the representation to the authority that has

made the order of detention at the time when he is served

with the communication containing the grounds of detention

so as to enable him to make such a representation and the

failure to do so results in the denial of the right of person

detained to make a representation.

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26. The right to make the representation against the

order of detention comprehend the right to make

representation to the authority, who can grant relief and

revoke the order of detention. If the detention order is passed

by the State Government and not by the officer empowered by

the Government, it is then that the detenu has to be

necessarily afforded with an opportunity to give the

representation only to the State Government and not to the

concerned officer.

27. The Division Bench decisions in W.P.(HC).Nos.

50/2007 and 20/2014 do not come to the rescue of the

detenu in this case. Because in the said writ petitions, an

opportunity was given to the detenu only to submit a

representation to the Advisory Board. In the instant case, the

detaining authority has stated that the detenu can submit the

representation to himself (detaining authority) and also to the

Advisory Board. In the case of Kundanbhai Dulabhai Shaikh

(supra), there was delay in considering the detenu’s

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representation. The case of delay in this case is not involved,

as the petitioner has not given any representation.

28. It is also not the case of the petitioner that the

detaining authority himself has no power to revoke his order.

In the General Clauses Act, 1899, the power of revokation is

always available to the authority that has made the order of

detention. There is no legal impediment for the detaining

authority to consider the representation made by the detenu.

29. We cannot hold that even before the Government’s

approval of the order of the detaining authority, the detaining

authority does not possess the power under Section 21 of the

General Clauses Act, 1899. There is nothing wrong in giving

the right to make a representation to the detaining authority,

so long as the order of detention is not approved by the State

Government. In taking this view, we are fortified by the

Hon’ble Supreme Court’s decision in the case of STATE OF

MAHARASHTRA AND OTHERS v. SANTOSH SHANKAR

ACHARYA reported in (2000) 7 SCC 463. What is of crucial

importance is that the detenu has to be given an opportunity

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to give the representation, which has been done in the

present case. The detenu cannot find fault with the detaining

authority on the ground that the detenu is given the

opportunity to give the representation only to the detaining

authority and not to the Government. Besides, it is also not

shown to us that such a ground was ever raised before the

Advisory Board. Considering all these aspects of the matter,

we answer question No.(i) against the detenu.

In Re.Question No.(ii):

30. The statement made on behalf of the detenu that he

does not know English is unbelievable. Annexures-R7 and R8

produced by the Government show that he studied in English

medium at Linn Memorial English Medium School, Gulbarga

from I standard to VII standard between 1989-1996.

Thereafter the detenu studied in English medium in Vijaya

Vidyalaya Composite Pre-University College, Gulbarga from

VIII standard to X standard between 1996-1999.

31. Merely because the Kannada translated version of

certain documents is not given, it cannot be said that it has

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deprived the detenu of the opportunity of making effective

representation. It is profitable to refer to what the Apex Court

has held in paragraph No.4 of its judgment in the case of

M.KUDUBDEEN v. UNION OF INDIA AND OTHERS reported

in (2010) 15 SCC 741.

“4. A perusal of the said document (front portion)

shows that the material particulars therein are the name

of the passenger, flight number, numbers of the packages,

checked baggage, hand baggage, total value of the

dutiable goods being imported and signature. All these

particulars have been filled in that document. The name,

flight number and number of packages have been

mentioned in the document in question. Against the value

of the goods tick mark has been made. The document has

been signed by the detenu. In the face of the above details

given by the detenu in the aforesaid declaration, the

contention that the translation thereof has not been

supplied particularly keeping in view that the reverse is in

the Tamil language, is without any substance. Therefore,

there is no merit in the contention that non-supply of the

English (sic Tamil) translation of the document has

resulted in depriving the petitioner from making an

effective representation under Article 22(5) of the

Constitution. The first contention is therefore rejected.”

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32. The communication, dated 26.5.2014 (Annexure-D)

containing the grounds of detention itself states that the

detenu speaks Kannada, Hindi, Telegu and English language

and that he knows reading and writing in Kannada and

English.

33. In the Kannada version the detenu is

unambiguously called upon to submit the representation

through the Superintendent of Police where the detenu is

lodged. In the English version an inadvertent surplasage that

the detenu has to submit the representation to the

Superintendent, Central Prison, Bangalore, has therefore

caused no prejudice to the detenu.

34. In the case of PRAKASH CHANDRA MEHTA v.

COMMISSIONER AND SECRETARY, GOVERNMENT OF

KERALA AND OTHERS reported in 1985 (Supp) SCC 144,

which case fell for consideration under the Conservation of

Foreign Exchange and Prevention of Smuggling Activities Act,

1974, the Hon’ble Supreme Court has this to say:

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“65. The principle is well-settled. But in this case it

has to be borne in mind that the grounds were given on

June 25, 1984 following the search and seizure of gold

biscuits from his room in the hotel in his presence and

in the background of the mercy petition as we have

indicated and he was in constant touch with his

daughter and sons and there is no evidence that these

people did not know Hindi or English. Indeed they knew

English as well as Hindi. It is difficult to accept the

position that in the peculiar facts of this case, the

grounds were not communicated in the sense the

grounds of detention were not conveyed to the detenu

Venilal. Whether grounds were communicated or not

depends upon the facts and circumstances of each

case.”

35. Further, on the ground of one or two words being

not as legible as they should have been, the impugned order

cannot be quashed. On the communication, dated 26.5.2004

containing the grounds of detention, the detenu has endorsed

that the contents of the said communication are read over to

him in Kannada and that he has understood the same. Thus,

the second question is liable to be answered in the negative

and accordingly it is answered.

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In Re.Question No.(iii):

36. The detaining authority has also briefly discussed

about nine criminal cases in which the detenu is involved. He

has also referred to the cases in which the enquiry is going on

and the cases in which he is an under-trial. The detaining

authority has also referred to the cases in which he is

acquitted. On the slender ground of there being small

inaccuracies or discrepancies while making the references to

the criminal cases, the impugned order cannot be quashed.

The small inaccuracies would not impair the satisfaction

arrived at by the detaining authority. In the case of Prakash

Chandra Mehta (supra), the Hon’ble Supreme Court has held

that the detention order is not vitiated on the ground of non-

application of mind, if subjective satisfaction is arrived at on

the basis of other independent and objective factors

enumerated in the grounds.

37. The detaining authority has clearly stated that the

detenu, on the enlargement of the bail, would threaten the

witnesses and manage them to become hostile to prosecution.

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The detaining authority has also stated that the detenu’s

anti-social activities are going on unabated and that even on

getting the bail, the detenu has not been mending his ways.

Besides, the bail/discharge/acquittal by a criminal court is

no bar to the preventive detention.

38. The perusal of the communication, dated 26.5.2014

Annexure-C) shows that the detaining authority was

conscious of all the relevant aspects of the matter and passed

the detention order in order to prevent the detenu from

committing the prejudicial activities in future. Besides, it is

not even the case of the petitioner that the ground of non-

application of mind was ever raised before the Advisory

Board. The impugned order and the communication

containing the ground for detention are reflective of the

application of mind on the part of the detaining authority.

Thus the third ground also fails the petitioner.

In Re.Question No.(iv):

39. As held by the Apex Court in the case of

M.Kudubdeen (supra), the sufficiency of material in arriving

at subjective satisfaction cannot be gone into in exercise of

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writ jurisdiction. It is not a case of absence of materials

altogether. It cannot be held that the subjective satisfaction of

the detaining authority about the compelling necessity stands

vitiated. In the present case, it is not possible to accept the

contention that there was no material before the detaining

authority to arrive at a conclusion that there was compelling

necessity to detain the person in question, only because he

was in custody as a remand prisoner.

40. In the case of Rekha (supra), the detention was on

the ground of selling the expired drugs after tampering with

labels and printing fresh labels showing them as non-expired

drugs. Whenever an order of preventive detention is

challenged, the first and foremost question to be examined is

whether the ordinary law of land is sufficient to deal with the

situation. If the answer is in the affirmative, the detention

order is illegal. The Hon’ble Supreme Court, on holding that

the relevant provisions of the IPC and the Drugs and

Cosmetic Act were sufficient to deal with the situation, made

the order for the release of the detenu in the said case. The

27

facts of the said reported case and those of this case are

entirely different.

41. We do not find any infirmity either in the reasoning

of the detaining authority or in the procedure followed by it.

We are satisfied that the detenu was afforded with adequate

opportunities at every stage and that there is no violation of

any procedural safeguards. We fully agree with the reasoning

of the detaining authority, as approved by the Government.

42. The perusal of the statement of objects and reasons

of the Goondas Act reveals that it was enacted as the

activities of certain anti-social elements like bootleggers, drug

offenders, gamglers, goondas, immoral traffic offenders and

slum grabbers have been causing the feeling of insecurity and

alarm amongst the public.

43. In the case of Prakash Chandra Mehta (supra), the

Apex Court has expressed the considered view that the

Court’s approach should be pragmatic and not highly

technical. Strict adherence to the procedure sacrificing

greater social interest is not justified. The protection of society

28

may claim higher priority under certain circumstances. While

quoting the ardent exponent of individual liberties, Thomas

Jefferson, the Apex Court has said in paragraph No.83 in its

decision in Prakash Chandra Mehta’s case (supra), as

follows:

“83. As has been set out by Thomas Jefferson “To lose

our country by a scrupulous adherence to written law,

would be to lose the law itself, with life, liberty, property

and all those who are enjoying them with us; thus

absurdly sacrificing the end to the means” [Thomas

Jefferson, Writings (Washington Ed.), V.542-545 and The

Constitution Between Friends by Louis Fisher 47]. By the

aforesaid approach both justice and power can be

brought together and whatever is just may be powerful

and whatever may be powerful may be just.”

44. The detenu cannot ask this Court to consider the

question as to whether the satisfaction of the detaining

authority can be justified by the application of objective tests.

The detenu can challenge the detention order on the ground

of malafides or on the ground of absence of materials or if the

grounds of detention are vague or irrelevant. It is only in this

incidental manner that the question of satisfaction may

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become justiciable. Otherwise, the reasonableness or

propriety of the said satisfaction cannot be challenged before

the courts. In taking this view, we are fortified by the Apex

Court’s judgment in the case of PUSHKAR MUKHERJEE

AND OTHERS v. STATE OF WEST BENGAL reported in AIR

1970 SC 852. We cannot be called upon to undertake an

investigation into sufficiency of the materials on the basis of

which the detention order is passed.

45. The Writ Court would neither act as a court of

appeal in a petition filed challenging the validity of the

detention order nor it would put itself in the position of the

detaining authority for satisfying itself of the adequacy of the

materials. The power to issue a detention order depends on how

the detaining authority processes, perceives and evaluates the

threat to the maintenance of public order. Its satisfaction is

purely subjective and excludes the judicial enquiry into the

sufficiency of the grounds to justify the detention.

46. In the instant case, we find that the grounds of

detention have nexus with the purpose for which the

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detention is made. The conjoint reading of the detention order

and the communication containing the grounds of detention

reveals that the detention order is legal and is in conformity

with the provisions of Goondas Act.

47. As held by the Apex Court in the case of

Subramanian (supra), it is not open to the Court to interfere

in the matter when the grounds of detention are precise,

pertinent, proximate and relevant.

48. Thus, the consideration of question No.(iv) also

yields the conclusion that the impugned detention order is

invulnerable.

49. In the result, this writ petition is dismissed.

Sd/-JUDGE

Sd/-JUDGE

Msr/Swk/MD