Kerala High Court
Abdul Samad vs State Of Kerala on 3 July, 2013
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE P.D.RAJAN
WEDNESDAY, THE 18TH DAY OF DECEMBER 2013/27TH AGRAHAYANA, 1935
WP(Crl.).No. 522 of 2013 (S)
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PETITIONER(S):
--------------------------
ABDUL SAMAD, AGED 59 YEARS,
S/O.AHAMMED KHAN, 'AFZAL TAILORING, PATTANI STREET
NURANI, PALAKKAD DISTRICT
BY ADVS.SRI.NIREESH MATHEW
SRI.N.P.PRAJEESH
RESPONDENT(S):
----------------------------
1. STATE OF KERALA
REP.BY THE PRINCIPAL SECRETARY TO GOVERNMENT
HOME-VIGILANCE(SS-A)DEPARTMENT, SECRETARIAT
THIRUVANANTHAPURAM 695 001
2. THE DISTRICT COLLECTOR,PALAKKAD 678 001
3. THE SUPERINTENDENT OF POLICE
CENTRAL PRISON, KANNUR 670001
R1 BY ADV. SRI. ASAF ALI - DIRECTOR GENERAL OF PROSECUTION
R BY SMT. KOCHUMOL KODUVATH - SR.GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
18-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(Crl.).No. 522 of 2013 (S)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 PHOTOCOPY OF THE DETENTION ORDER NO S 1-2013/40999/9
DATED 03-07-2013
EXHIBIT P2 PHOTOCOPY OF THE GROUNDS OFDETENTION DATED 03-07-2013
SERVED ON THE DETENU
EXHIBIT P3 PHOTOCOPY OF THE ORDER OF THE 1ST RESPONDENT
NO G.O(RT) NO 2451/2013/HOME DATED 04-09-2013
EXHIBIT P4 PHOTOCOPY OF THE ORDER IN C.C NO 518/2011 BEFORE
JFMC,PATTAMBI DATED 05-06-2013
EXHIBIT P5 PHOTOCOPY OF THE RODER IN C.C NO 37/2013 BEFORE
JFMC,OTTAPALAM DATED 20-02-2013
EXHIBIT P6 PHOTOCOPY OF THE ORDER IN C.C NO 3688/2012 BEFORE JFMC-III
PALAKKAD DATED 17-10-2013
EXHIBIT P7 PHOTOCOPY OF THE RODER IN CRL MC NO 4091/2013 DATED 30-09-2013
PASSED BY THIS HON'BLE COURT
EXHIBIT P8 PHOTOCOPY OF THE JUDGMENT REPORTED IN 2013(10 KLT 286,ABIDHA
BEEVI V//S.STATE OF KERALA
RESPONDENT(S)' EXHIBITS
---------------------------------------: NIL.
TRUE COPY
PA TO JUDGE.
acd
ANTONY DOMINIC & P.D. RAJAN, JJ.
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W.P.(Crl)No.522 of 2013
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Dated this the 18th day of December, 2013
JUDGMENT
ANTONY DOMINIC,J.
Petitioner is the father of Shabeer Ali @ Karuman @ Shabir @ Titan (hereinafter referred to as the detenu for short). On the basis that the detenu is an accused in Crime No.4 of 2011 and Crime No.2647 of 2012 of of Town South Police Station, Palakkad and Crime No.663 of 2013 of Town North Police Station, Palakkad, Crime No.82 of 2011 of Pattambi Police Station, Crime No.142 of 2011 of Ottappalam Police Station and Crime No.334 of 2012 of Thrissur East Police Station, the District Police Chief, Palakkad made reports dated 17.5.2013 and 18.6.2013 to the second respondent, the detaining authority, with a recommendation that the detenu be classified as a known rowdy and detained under Section 3 of the Kerala Anti Social Activities (Prevention) Act 2007 (hereinafter referred to as the Act for short).
2. Based on the report, proceedings were initiated W.P(Crl)No. 522/13 2 under the Act and the second respondent issued Ext.P1 order dated 3.7.2013 ordering the detention of the detenu under Section 3(2) of the Act. Accordingly, the detenu was arrested and detained on 24.7.2013. The order of detention was approved by the Government of Kerala by its order dated 31.7.2013. Subsequently, based on the report of the Advisory Board, the detention was confirmed by the Government by Ext.P3 order dated 4.9.2013. It is in these circumstances, this writ petition has been filed seeking to set aside Ext.P1 order of detention and with a prayer to issue a writ of Habeas Corpus for the production and to set the detenu at liberty.
3. We heard the learned counsel for the petitioner and the learned Government Pleader appearing for the respondents.
4. The first contention raised by the learned counsel for the petitioner was that the detaining authority is guilty of non-application of mind in issuing Ext.P1 order. Therefore, according to him, Ext.P1 order is illegal and unconstitutional. The learned counsel contended that among the cases that are relied on against him in Ext.P1 W.P(Crl)No. 522/13 3 order, one of the case was Crime No.142/2011 of Ottappalam Police Station. The learned counsel pointed out that the said case was acquitted by the jurisdictional Magistrate by Ext.P5 judgment rendered on 20.2.2013, which was even before the reports were made by the sponsoring authority. He also contended that in Crime No.82/2011 of Pattambi Police Station, which was also relied on by the detaining authority, the detenu was acquitted by Ext.P4 judgment rendered on 5.6.2013. Pointing out these facts, the learned counsel contended that despite acquittal of the detenu, these cases were also relied on by the detaining authority, which reflects his non- application of mind.
5. It is true that in Ext.P1 order, among the six cases that are relied on against the detenu, two of those cases are Crime Nos.142/2011 of Ottappalam Police Station and 82/2011 of Pattambi Police Station. It is also true that these cases ended in acquittal by Exts.P4 and P5 judgments rendered on 20.2.2013 and 5.6.2013 respectively. Therefore, as on 3.7.2013, when Ext.P1 order of detention was issued, these cases were not W.P(Crl)No. 522/13 4 pending against the detenu to be relied on by the detaining authority. Although this is the factual position, the question is whether that would lead to a conclusion that Ext.P1 order of detention is vitiated. In our view, the answer has to be in the negative because of the provisions contained in Section 7(4) of the Act, which reads thus:
"7. Grounds of order of detention to be disclosed.-
(1) xxx xxx
xxx xxx
(4) The order of detention shall not be deemed to be invalid merely because one or more of the facts or circumstances cited among the grounds are vague, non-existent, irrelevant or invalid for any reason whatsoever and such order shall be deemed to have been made by the Government or the Authorised Officer after having been satisfied about the need for detention with reference to the remaining facts and circumstances, provided that the minimum conditions for being classified as a known goonda or known rowdy are satisfied."
6. Reading of this provision shows that an order of detention shall not be deemed to be invalid merely because one or more of the facts or circumstances cited among the grounds are unexplained or invalid for any reason whatsoever, provided the minimum conditions for classifying a person as 'Known goonda' or 'Known Rowdy' are satisfied. Insofar as this case is concerned, going by the provisions of Section 2(p)(iii) of the Act, the minimum W.P(Crl)No. 522/13 5 prescribed therein are three cases. If that be so, even if out of the six cases relied on by the detaining authority, the cases covered by Exts.P4 and P5 judgments of the Magistrate are eschewed, still the detaining authority was left with four remaining cases, which satisfied the minimum prescribed in Section 2(p)(iii) of the Act. In such a situation, in view of the provisions contained in Section 7 (4), the petitioner cannot successfully contend that the detaining authority was guilty of non-application of mind and overcome the holder created by Section 7(4). Therefore, we are unable to accept this contention raised by the learned counsel for the petitioner.
7. The second contention raised by the learned counsel for the petitioner was that before issuance of Ext.P1 order of detention, proceedings under Section 107 of Cr.P.C. were initiated against the detenu by registration of Crime No.925/2013 of Palakkad Town South Police Station. On this basis, the learned counsel contended that since preventive proceedings were already initiated under the ordinary laws of the land, it was unnecessary for the authorities to initiate proceedings under the Act and detain W.P(Crl)No. 522/13 6 the detenu by issuing Ext.P1 order. In support of this contention, the learned counsel placed reliance on the judgment of this Court in Abidha Beevi v. State of Kerala [2013 (1) KLT 286].
8. We have considered the submission made. It is true that proceedings under Section 107 of Cr.P.C. were initiated against the detenu by registration of Crime No.925/2013 mentioned above. However, the fact that Section 107 proceedings have been initiated against the detenu is no embargo against the respondents in initiating proceedings under the Act and even going by the judgment of this Court relied on by the learned counsel for the petitioner, what is required is that, in such a case, if an order of detention is to be issued, the detaining authority should be satisfied that in spite of proceedings under Section 107 Cr.P.C., it is necessary to detain the detenu. In other words, what is required is that the detaining authority should apply his mind to the requirement of detaining the detenu in preventive detention, in spite of the pendency of proceedings under Section 107 of Cr.P.C. The question is whether, in this case, the detaining W.P(Crl)No. 522/13 7 authority has applied his mind to the facts of the case in the manner indicated above.
9. This question has to be answered with reference to the contents of Ext.P1 order itself. In Ext.P1 order, after stating about the pendency of proceedings under Section 107 of Cr.P.C., the detaining authority has stated thus:
"
107 ( 27-04- 2013 925/13 ( ."
10. The above statement in Ext.P1, therefore, discloses that the detaining authority has applied his mind to the facts of the case and having regard to the past conduct of the detenu, he was satisfied that, in spite of Section 107 proceedings, it was necessary to detain the detenu for preventing him from continuing his anti social activities. Such a consideration satisfies the requirement of law and therefore, we are unable to accept this contention raised by the petitioner also.
11. The third and last contention raised by the learned counsel for the petitioner was regarding the delay in passing Ext.P1 order of detention. It is true that there W.P(Crl)No. 522/13 8 should be proximity between the last prejudicial activity and the order of detention and if there is delay, it is incumbent on the part of the authorities to explain the same, as otherwise, the purpose of detention is defeated and for that reason, the order of detention will be held illegal.
12. Insofar as this case is concerned, the last prejudicial activity leading to the registration of Crime No.663/2013 was on 1.4.2013. Thereafter, Ext.P1 order of detention was issued only on 3.7.2013. It was pointing out this time gap that the learned counsel for the petitioner was arguing that in passing Ext.P1 order, the delay of almost three months has occurred and that the same being an unexplained delay is fatal to the detention. However, to accuse the respondents of having not satisfactorily explained the delay, it is for the petitioner to plead that there was delay.
13. Insofar as this writ petition is concerned, there is no pleading that the order of detention was issued belatedly and for that reason the order is illegal and unconstitutional. In other words, the respondents were not W.P(Crl)No. 522/13 9 called upon to explain the delay if any and in such a situation, the petitioner cannot justifiably find fault with the respondents for having not explained the delay. Even otherwise, the facts show that after the last prejudicial activity on 1.4.2013, the sponsoring authority made his report on 7.5.2013. The second report was made by the sponsoring authority on 18.6.2013 and it was thereafter that on 3.7.2013, Ext.P1 order was issued. This sequence of events also does not persuade us to think that the respondents were guilty of any culpable delay in passing Ext.P1 order of detention rendering the said order invalid or unconstitutional. Therefore, we are unable to accept this case pleaded by the petitioner also.
The writ petition will stand dismissed.
ANTONY DOMINIC, JUDGE P.D. RAJAN, JUDGE.
acd W.P(Crl)No. 522/13 10 W.P(Crl)No. 522/13 11