IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 134 of 2009(S)
1. SRUTHI,AGED 22 YEARS, W/O.SANHTHOSH.K,
1. STATE OF KERALA, REP. BY SECRETARY TO
2. DISTRICT MAGISTRATE AND
3. SUPERINTENDENT OF POLICE, KASARGOD.
4. SUPERINTENDENT,CENTRAL JAIL KANNUR.
For Petitioner :SRI.SHAIJAN C.GEORGE
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
O R D E R
R.BASANT & M.C.HARI RANI, JJ.
W.P(Crl.) No.134 of 2009
Dated this the 4th day of June, 2009
Has the mind of the Detaining Authority been applied alertly and properly to the question whether the detenu deserves to be detained under Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as the `KAAPA') ? This is the only question that we have to consider in this case.
2. Petitioner is the wife of Santhosh @ Santhu, against whom an order of preventive detention under Section 3(2) of the KAAPA has been passed by the 2nd respondent. In this petition for issue of a writ of habeas corpus, the petitioner prays that her husband may be directed to be produced before Court and released after setting aside Ext.P2 order of detention dated 16.02.2009.
3. A brief resume of facts leading to Ext.P2 order of detention appears to be necessary. The petitioner's husband was involved in as many as 5 crimes, vitally the relevant details of which are given below.
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i) Crime No.462 of 2004 - incident on 25.04.04. ii) Crime No.1012 of 2004 - incident on 05.10.2004. iii) Crime No.70 of 2007 - incident on 20.10.2007. iv) Crime No.220 of 2007 - incident on 20.03.2007. v) Crime No.336 of 2007 - incident on 15.05.2007.
4. In one of these cases, ie. Crime No.1012 of 2004, his plea of guilty was accepted and he was convicted under Sections 25 and 27 of the Arms Act. In the other crimes prosecutions were pending before courts.
5. While so, the 3rd respondent, the sponsoring authority submitted report dated 02.06.2008 to the detaining authority, ie. the 2nd respondent herein suggesting that the detenu may be detained under Section 3 of the KAAPA on the ground that he is "a known rowdy" and is currently involved in antisocial activities. That report dated 02.06.08 was received by the detaining authority. But the 2nd respondent, the detaining authority, was evidently not satisfied that an order of detention deserves to be passed on the basis of such report. The detaining authority found that there was no crime registered against the detenu during the year 2008 and therefore directed the 3rd W.P(Crl.) No.134 of 2009 3
respondent to consider the matter afresh. The 3rd respondent was directed to further enquire and submit a report.
6. The 3rd respondent thereupon appears to have secured a report from the Sub Inspector of Police of the local Police Station. That report dt.13.12.2008 is available in the record. Translated roughly; it reads as follows: "I refer to the letter under reference. I have enquired about Santhosh @ Santhu. It is understood that he is not in judicial custody now. But it is clear that he is engaging himself in anti-social activities and goondaism. He is in constant contact with his associates in earlier crimes. He is one having such a bad character that he will not hesitate to commit any act of cruelty. He is overtly and covertly working with spurious liquor lobby, hawala transactors and blade mafia. Further he engages himself in activities to generate communal hatred. This matter is reported".
7. On receipt of the said report, the 3rd respondent submitted a communication dated 16.12.2008 No.843/SB- KSD/08. The contents of which we extract below: W.P(Crl.) No.134 of 2009 4
"Kind attention is invited to the above cited reference.
The counter petitioner N.Santhosh @ Santhu is not in judicial custody at present. He is currently involved in antisocial activities directly or indirectly. But he is not involved in any criminal cases directly in 2008. Hence, I request that orders may be issued detaining the counter petitioner at the earliest. Report of S.I Kasargod is enclosed herewith."
8. After receipt of the said report from the 3rd respondent enclosing the report of the S.I of police, the 2nd respondent proceeded to pass Ext.P2 order of detention dt.16.02.2009. It will be apposite to note that after Ext.P1 and before Ext.P2, 2 of the 5 cases referred above have ended in acquittal (Crime No.336 of 2007 by an order of acquittal on merits and Crime No.220 of 2007 on the basis of composition).
9. The detenu was arrested on 18.02.2009. His detention was approved by the Government under Section 3(3) of the KAAPA. Later Advisory Board recommended his continued detention and the order of detention was confirmed by the W.P(Crl.) No.134 of 2009 5
Government. In the meantime the Government had rejected the representation submitted by the detenu to the Government.
10. The learned counsel for the petitioner as also the learned Addl. D.G.P have advanced their arguments before us. Though various grounds are raised, we think it sufficient to refer to the crucial and vital grounds raised only and they are GROUNDS
i) There is significant absence of due and proper application of mind by the sponsoring authority (R3) and the detaining authority (R2) before passing Ext.P2 order of detention;
ii) Section 7(4) of the KAAPA is unconstitutional.
11. The learned counsel for the petitioner contends first of all that there has been no proper application of mind by the sponsoring authority and the detaining authority. The sponsoring authority alleged that the detenu is a known rowdy, whereas the detention authority proceeded on the assumption that he is only a known goonda. It may be true that the petitioner satisfies the definition of both known rowdy and W.P(Crl.) No.134 of 2009 6
known goonda. But the fact remains that intrinsic materials available suggest that there has been no proper application of mind by the detaining authority who came to the conclusion that a different ground for detention is available. We take note of this incongruity. But that by itself cannot deliver any advantage to the detenu it being conceded that on the allegations he can be said to be both a known rowdy as well as a known goonda. But this Court exercising its powers of judicial review of the act of Detaining Authority cannot ignore or overlook the fact that the records suggest that there has been no proper application of mind on even such a vital aspect.
12. The learned counsel for the petitioner then contends that the detaining authority had passed Ext.P2 order on 16.02.2009. On that date the detenu had already secured acquittal in 2 of the 5 cases referred to in the order of detention. An order of acquittal secured in one of the several cases pending against a detenu may by itself not be sufficient to invalidate an order of detention. But the fact that the detaining authority was blissfully unaware of the fact of acquittal and non application of mind on that aspect is crucial, contends the learned counsel. The learned counsel further points out that the orders of W.P(Crl.) No.134 of 2009 7
acquittal in those 2 cases were admittedly passed between 02.06.2008 and 16.02.2009, the dates of Exts.P1 and P2. But the counsel submits that both such orders of acquittal were prior to 16.12.2008, the date on which the clarification report was submitted by the sponsoring authority. The sponsoring authority had also not taken cognizance of the fact that two of five cases charged against the accused had ended in acquittal. As stated earlier, the detaining authority was not apprised of that fact. He did not know that fact and did not advert to that circumstance while passing the order of detention dt.16.02.2009. We do find this contention to be relevant and crucial. The acquittal is certainly an important circumstance. In spite of the acquittal, the Detaining Authority may choose to pass an order of detention and that may in an appropriate case be justified also. But the fact that the detaining authority was not apprised of that fact, did not know that fact and did not apply his mind to that vitally relevant fact, according to us, is of crucial relevance while considering the validity of the order of detention. This Court is unable to get the satisfaction that there was due and proper application of mind before the requisite subjective satisfaction under Section 3 was reached by the Detaining Authority. W.P(Crl.) No.134 of 2009 8
13. The learned Addl.D.G.P then contends that if those 2 circumstances - existence of 2 cases which ended in acquittal, were eschewed, even then there are 3 relevant cases registered against the petitioner. One of them had ended in conviction on a plea of guilty. In the other 2, final reports were filed by the police and prosecutions are pending.
14. The learned Addl. D.G.P contends that Section 7 (4) comes into play in these circumstances. Ext.P2 order of detention must be deemed to have been made on the basis of the surviving 3 cases at any rate. The learned counsel for the petitioner, in these circumstances, does not dispute the fact that the detenu may fall within the sweep of the definition of a known goonda and known rowdy but the contention of the learned counsel is that an order under Section 3 of the KAAPA cannot be passed against all known rowdies and known goondas. That is only the threshold requirement. No order of detention can be passed against a person who is not either a known goonda or a known rowdy. But that does not mean that the order of detention under Section 3 of the KAAPA without anything more can be passed against all known rowdies and known goondas. W.P(Crl.) No.134 of 2009 9
15. We are in agreement with the learned counsel and we accept that something more is required to satisfy the basic requirements before passing an order of detention under Section 3 of the KAAPA. The Government or district Magistrate must be satisfied on information received that such known goonda or known rowdy has to be detained to prevent him from committing any antisocial activities. The detaining authority must be satisfied that the detenu is a known goonda or known rowdy. He has to go further, apply his mind and must be satisfied that such known rowdy or known goonda has to be prevented by an order of detention from committing antisocial activities. We repeat that the mere fact that a person is a known goonda or a known rowdy cannot automatically entail the consequence of passing an order under Section 3 of the KAAPA. That is only the threshold requirement. Mind has to be applied by the Authorities to satisfy themselves first that the detenu is a known goonda or known rowdy. That is verification of a fact situation. No subjective satisfaction is involved. The satisfaction on that aspect must certainly be objective. Once that fact is verified then the Authorities must apply their mind and consider whether the W.P(Crl.) No.134 of 2009 10
powers of preventive detention under Section 3 of the KAAPA deserves to be invoked against that person.
16. The learned counsel for the petitioner contends that the detaining authority was conscious of this fact. The detaining authority had taken note of the reality that no crime had at all been registered against the detenu in the year 2008. He was a known rowdy or known goonda. But still the detaining authority was not satisfied on the basis of Ext.P1 report that an order of detention can or ought to be passed. Application of mind appears to have taken place at that stage. That is why a further report was called for. The learned counsel for the petitioner contends that all other materials placed can, at worst, only show that the detenu was a known rowdy/goonda. But the detaining authority on the basis of Ext.P1 was not satisfied that an order of detention under Section 3 must be passed. That is why the detaining authority called for further enquiry and report.
17. We are in agreement with the learned counsel for the petitioner that it must be shown now that relevant materials were placed thereafter before the detaining authority who initially was not satisfied about the need for such detention. It is here that we come across the report dt.16.12.2008 of the 3rd W.P(Crl.) No.134 of 2009 11
respondent and the report of the S.I of Police on the basis of which such further report was submitted by the 3rd respondent. We have taken pains to extract those 2 reports earlier as the petitioner has trained all her guns against those materials. Even though there was a contention that copies had not been furnished of these reports dt.13.12.2008 and 16.12.2008, the learned counsel for the petitioner fairly conceded after being given an opportunity to peruse the file that though the petitioner was unaware of those documents, copies thereof have been served on the detenu. The question is whether these 2 reports are legally acceptable and whether the mind of the detaining authority had been applied with the requisite care to those 2 reports.
18. Precedents have been cited before us. It is unnecessary to refer to precedents specifically. The law is well settled that the Court cannot sit in judgment over the sufficiency of reasons given and materials relied on by the sponsoring authority and the detaining authority in the proposal/order of detention. But it is incumbent on this Court to verify whether those records constitute valid materials and whether the mind of the detaining authority has been applied properly to those W.P(Crl.) No.134 of 2009 12
materials/grounds. Even in a case where contentions of mala fides or want of jurisdiction or the grounds being alien are not urged, it is certainly incumbent on the Court to verify whether the detaining authority had acted on valid materials and whether mind of the detaining authority has properly been applied to such materials. There can be no dispute on those propositions of law.
19. It is in this context we have carefully gone through the reports dated 13.12.2008 and 16.12.2008 referred earlier. What survives to justify the order of detention is only the 3 cases referred above after taking away the 2 cases which have ended in acquittal and which were not properly considered. We have already noted that the detaining authority has not at all adverted to such judgments of acquittal and therefore those facts/grounds/materials will have to be eschewed from consideration. But still under Section 7(4) of the KAAPA it has to be considered whether detention on the other grounds/materials is justified. Subjective satisfaction can be reached and must be deemed to have been entertained even on such surviving materials/grounds by the detaining authority. We accept that contention of the learned Addl. D.G.P. W.P(Crl.) No.134 of 2009 13
20. The detaining authority, who found the materials to be insufficient at an earlier stage, was persuaded to pass the order of detention on the basis of reports dated 13.12.08 and 16.12.08. Less said about the report dated 13.12.2008 by the S.I, the better. It gives only the conclusions of the officer and not data, basis, materials or grounds. What disturbs us is that the allegations/expression of opinion in the report dated 13.12.2008 are absolutely alien to the 3 cases on which reliance is placed to justify the order of detention. Connections with spurious liquor lobby, hawala transactors, blade mafia are not at all revealed from the 3 cases (or for that matter the 5 cases) referred to in the order of detention. Arousing communal hatred, which is another input in the report dated 13.12.2008, is again totally unjustified by the 3 cases which survive for consideration or as stated earlier all the 5 cases referred in Ext.P2. Those vague and sweeping statements made unrelated to the 5 cases referred is certainly vitiated on the ground of vagueness. Report dated 16.12.2008 of the sponsoring authority (R3) does not also reveal alert application of mind to the report dated 13.12.2008 which he had forwarded to the detaining authority. The fact that the allegations/impressions conveyed by the S.I of police are not W.P(Crl.) No.134 of 2009 14
justified by the nature of allegations raised in all the 5 previous cases (2 of which have to be eschewed from consideration) has not been adverted to by the 3rd respondent. The order of detention further shows that even the detaining authority, though he has referred to the report dt.16.12.2008 of the 3rd respondent, has also not applied his mind pointedly to those 2 reports dt.13.12.2008 and 16.12.08 or to the fact that the allegations/impressions raised by the S.I in the report dt.13.12.2008 are not congruent to the allegations raised earlier in those 5 cases.
21. The long and the short of the above discussion is that this Court gropes in the dark and is unable to get the satisfaction that the sponsoring authority and the detaining authority have properly applied their minds to the relevant circumstances. Having admittedly not been satisfied of the requirement of detention even after getting Ext.P1 report, the detaining authority must have pointedly applied his mind to the reports dt.13.12.2008 and 16.12.08. Such application of mind is not revealed at all. We agree with the learned counsel for the petitioner that the detenu is entitled to the advantage of non W.P(Crl.) No.134 of 2009 15
consideration of the materials alertly and properly by the detaining authority.
22. It will not be inapposite in this context to note that there is a strenuous contention raised that the 3 cases referred to are all in the distant past and they by themselves could not have persuaded any reasonable mind to conclude that the detenu is likely to indulge in prejudicial and antisocial activities. Counsel strenuously submits that while it is true that the petitioner was earlier involved unfortunately in some cases, he has now turned a new leaf in life. He had got married. He has a child. Local church had intervened to rehabilitate him. It is at this juncture that the impugned order of detention has visited him. Every saint may have a past. Such past cannot be permitted to undeservedly haunt the petitioner. In these circumstances the order of detention was unnecessary, also submits the learned counsel. We are not going into and cannot go into the subjective satisfaction of the detaining authority, but we are bound to consider the contention that there is no live linkage between the order of detention and the grounds alleged. The order of detention is seen passed on 16.02.2009 and 2 of the 3 surviving cases which are referred to had taken place as early W.P(Crl.) No.134 of 2009 16
as on 25.04.2004 and 05.10.2004. In the third case the incident had taken place on 20.10.2007. No subsequent material has at all been placed to suggest the need of preventive detention and in this context we note that there is merit in the contention that the linkage or nexus between the alleged circumstances and the order of detention is snapped in the facts and circumstances of this case.
23. To sum up, we note that there has been no proper application of mind by the 2nd respondent before passing Ext.P2 order of detention. The order affords intrinsic material to suggest that mind was not properly applied at all on the question whether the detenu is a known goonda or known rowdy. Respondents 2 and 3 appear to have been unaware of the fact that on the date of detention the detenu has been acquitted in 2 of the 5 cases relied on by the authorities. The fact that the vague and sweeping conclusions expressed in the reports dt.13.12.2008 and 16.12.08 are incongruent to the nature of allegations in the 5 cases relied on by the authorities was lost sight of by them. They did not apply their mind at all to that aspect. The Detaining Authority who was dissatisfied with Ext.P1 report did not alertly apply his mind to the question W.P(Crl.) No.134 of 2009 17
whether there was live link between the 5 cases which had taken place in the distant past and the order of detention passed long later. We do in these circumstances come to the firm and definite conclusion that we are not satisfied that sufficient and alert application of mind had preceded the passing of Ext.P2 order of detention.
24. The conclusion appears to be inevitable in these circumstances that the impugned order of detention is liable to be set aside and the detenu deserves to be directed to be released.
25. GROUND NO.2
Though a prayer is vaguely raised that Section 7(4) of KAAPA which is identical to Section 5A of the COFEPOSA Act is unconstitutional, no detailed reasons are given and no detailed arguments are advanced in support of such prayer. In the light of our finding under Ground No.1 and in the nature of the pleadings raised and arguments advanced we do not deem it necessary to delve deeper into this ground raised in this Writ Petition.
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26. In the result:
a) This Writ Petition is allowed;
b) The respondents are directed to forthwith release the detenu from custody if the detenu is not required to be detained in connection with any other case;
c) The Registry shall communicate this order to the 4th respondent forthwith.
(M.C.HARI RANI, JUDGE)