Kerala High Court
Gracy Joseph vs State Of Kerala on 20 January, 2010
Author: K.M. Joseph
Bench: K.M.Joseph, P.Q.Barkath Ali
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 541 of 2009(S)
1. GRACY JOSEPH,AGED 42 YEARS,
... Petitioner
Vs
1. STATE OF KERALA,REPRESENTED BY
... Respondent
2. THE DISTRICT COLLECTOR/DIST.MAGISTRATE,
3. THE SUPERINTENDENT OF POLICE,
4. THE S.I.OF POLICE,KELAKAM POLICE
For Petitioner :SRI.C.P.PEETHAMBARAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :20/01/2010
O R D E R
K. M. JOSEPH &
P.Q. BARKATH ALI, JJ.
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W.P(CRL). NO. 541 OF 2009 S
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Dated this the 20th January, 2010
JUDGMENT
K.M. Joseph, J.
Petitioner is the wife of Shri Pappachan @ Mathew who has been detained under the provisions of The Kerala Anti- Social Activities (Prevention) Act, 2007 (hereinafter referred to as the Act). Ext.P1 is the order dated 25.09.2009 passed by the District Magistrate ordering detention. There are five cases referred to in Ext.P1 order, which reads as follows:
Sl. Date of
Offence Crime No. Remarks
No occurrence
1 Sec. 55(a) 24/02/2006 36/2006 of 300 ml. of Arrack
Kelakam P.S. was
seized by the fourth
respondent
2 Sec. 55(a) 02/05/06 85/2006 of 2.5 ltrs. of Arrack
Kelakam P.S. seized near the house
of the detenu by the
fourth respondent
3 Sec. 55(a)(i) 14/02/2008 37/2008 of 8.80 ltrs. IMFL
Kelakam P.S. seized from the house
of the detenu by the
fourth respondent
WP(CRL).541/09 S 2
Sl. Date of
Offence Crime No. Remarks
No occurrence
4 Sec. 55(a) 10/07/08 153/2008 of 15 bottles of IMFL
Kelakam P.S. each containing 1 ltr.
was abandoned by
the detenu on seeing
the police and run
away, which was
seized by the fourth
respondent
5 Sec. 55(a) 11/06/09 88/2009 of Seized 13 bottles
Kelakam P.S. of IMFL each
containing 375 ml.
near the premises of
Kottiyoor temple,
seized by the fourth
respondent
2. All the cases are under Section 55(a) (i) of the Kerala Abkari Act. They include cases of seizure of arrack and also cases of seizure of IMFL. All the cases are registered as Crimes of the Kelakam Police Station. The dates of occurrence of the cases are 24.02.2006, 02.05.2006, 14.02.2008, 10.07.2008 and 11.06.2009. In the first case, the allegation is of seizure of 300 ml. of arrack. In the second case, the quantity seized is 2.5 litres of arrack. In the third case, it is 8.80 litres of IMFL. In the fourth case, 15 bottles of IMFl each containing one litre were allegedly abandoned by the detenu on seeing the police. WP(CRL).541/09 S 3 Still further, in the fifth case, the seizure alleged is of 13 bottles of IMFL each containing 375 ml. Ext.P1 order of detention has been approved by Ext.P4 under Section 3(3) of the Act. Ext.P6 is the order passed by the Government on a representation given by the detenu.
3. We heard Shri C.P. Peethambaran, learned counsel for the petitioner and the learned Government Pleader. Petitioner seeks a writ of habeas corpus to produce the detenu before this Court and to set him free.
4. Learned counsel for the petitioner would submit that the Act has been invoked against the detenu in a very casual manner. He would, in this regard, point out that in Ext.P3 submitted by the Sub Inspector of Police, in respect of FIR.88/09, the date of submission of the charge sheet was shown as 18.07.2009, but it is pointed out that Ext.P3 was submitted by the Sub Inspector of Police on 25.06.2009. He poses the question as to how, in a Report submitted on 25.06.2009, the Sub Inspector of Police could have pointed out that date of submission of the charge sheet in the said case as WP(CRL).541/09 S 4 18.07.2009. Secondly, he would contend that in Ext.P1 the detaining Authority has stated as follows:
"12. The respondent is a habitual offender, involved in many cases against the provisions of Abkari Act. The materials furnished by the Superintendent of Police, Kannur reveals that he is continuously involved in many such offences. His last crime committed as per Crime No.88/09 u/s.55
(a) of Abkari Act dated 11.06.09 reveals that he is still involved in such activities. As such, if he remains at large, he would indulge in antisocial activities, detrimental to the peace and traanquility of the people residing in the Thottada and suburabs."
He would submit that Thottada and suburbs are situated far away. He would point out that this betrays non-application of mind. He would point out further that Ext.P4 is the order by which the Government has approved the order of detention under Section 3(3) of the Act. Ext.P5 is stated to be an order issued by the detaining Authority dated 07.10.2009. It reads as follows:
WP(CRL).541/09 S 5
"In the order of detention issued on 25.09.09 against Sri. Thekkedath Pappachan @ Mathew, S/o. Joseph, Thekkedath House, Kottiyoor amsom, Kadappanam, Kelakam Police Station limit, in `Annexure 2' the following erratum is hereby ordered.
In 3rd page, para 12, last line to be read as "people residing in Kelakam police station limit".
The papers read above stands corrected to the above extent only."
5. Learned counsel for the petitioner would submit that these documents would show that the detaining Authority has approached the issue in a most casual manner which warrants interference with the order passed by the Magistrate. He would submit that the order of approval (Ext.P4) is with reference to the contents of paragraph 12 of Ext.P1 which we have already extracted. Even if the erratum order was passed subsequently, there was no approval of the order of detention, with referrence to a change brought about in the order of detention by the issuance of the erratum order (Ext.P5), he contends. He further took us through Ext.P6 order rejecting the representation by the WP(CRL).541/09 S 6 detenu. It is submitted that the order is dated 24.10.2009, but it refers to a representation dated 27.10.2009. He poses a question as to how such a mistake could have been made. He further contended that there was no proper consideration of the representation. He would also contend that the detenu has been in jail for the past three months and having regard to the facts, this Court may direct his release.
6. Per contra, learned Government Pleader would point out that while it is true that Ext.P3 submitted by the Sub Inspector of Police is dated 25.06.2009 and at that stage the charge sheet had not been filed in FIR.88/09. A perusal of Ext.P3 (at internal page 6 of Ext.P3) will show that the document was forwarded to the Superintendent of Police, Kannur by the Deputy Superintendent of Police only on 29.7.2009. By that time, the case had been charge sheeted on 18.7.2009. He would submit that, therefore, there is no basis at all for the petitioner's complaint. Next, he would submit that there was a typographical error in Ext.P1 order in so far as WP(CRL).541/09 S 7 instead of stating Kelakam area, in paragraph 12 it was stated as Thottada and suburbs. He would submit that it was, therefore, upon the error being noticed, Ext.P5 Erratum was issued. He would also point out that the Erratum Order was also served on the detenu on 7.10.2009, as per the time prescribed in Section 7 (2) of the Act. It is pointed out in this regard that though the order of detention was issued on 25.9.2009, the detenu was arrested only on 3.10.2009. These submissions are seen stated in the Counter Affidavit at paragraph 9. There is no Reply Affidavit as such in regard to these aspects, he points out. He would point out that by the time the approval order was passed, the erratum order had already been issued and there was no question of issuing further order approving the detention order with the correction carried out by the erratum order. He would also point out that the detaining Authority has carefully considered the matter as is evident from the narration of the facts in the order of detention and he would submit that the detenu is involved in many cases as noted in the order of WP(CRL).541/09 S 8 detention. He would further submit that the date of the representation mentioned in Ext.P6 order rejecting the representation is only a mistake.
7. As far as the question relating to the statement contained in Ext.P3 to the effect that the case was charge- sheeted in respect of FIR No.88/08 on 18.7.2009 which is an impossibility if the Report was given on 25.6.2009 by the Sub Inspector of Police, we see merit in the contention of the learned Government Pleader that it was actually forwarded to the office of the Superintendent of Police, Kannur only on 29.7.2009. There is no serious dispute that on 18.7.2009, the detenu was in fact charge-sheeted in the case. If that is so, the incorporation of the said fact in Ext.P3 cannot entitle the petitioner to challenge the order of detention.
8. We also do not see any merit in the contention of the petitioner based on the contents of paragraph 12 of Ext.P1 order of detention. It is true that in the said paragraph, the Magistrate has referred to the wrong area. But, we cannot be oblivious to WP(CRL).541/09 S 9 the fact that in the Report submitted by the Authorities, the references are all to the Kelakam Police Station. Ext.P2 is apparently the information placed before the Magistrate by the Superintendent of Police. Therein, it is specifically stated that the involvement of the detenu brings him within the ambit of a known goonda as defined in Section 2(o) of the Act, as per the Explanation provided to the said Section. It is further stated that the Confidential Report reveals that he is a hard core criminal causing serious law and order problem and terrorizing people in Kelakam, Kannur by indulging in anti-social activities and he is causing serious headache to the police and to the public in the area by his criminal activities there, thereby threatening the peace and tranquility. Still further more, in Ext.P1 itself, as pointed out by the learned Government Pleader, reference is actually made to Kelakam in paragraph 11 of the Order. It is specifically stated that the detenu is a threat to the safety of public at Kelakam area. We further notice that, in fact, the Magistrate has also found that the detenu is not entitled to any of WP(CRL).541/09 S 10 the exemptions which are provided in the Act. Therefore, on a whole, we cannot find that there is merit in the contention of the learned counsel for the petitioner that the order is passed in a casual manner. It is true, there was a mistake occurred and apparently the mistake was corrected and the erratum order was also served on the detenu as provided in law. It is with Ext.P1 order as modified by the order of erratum, that Ext.P4 has been passed, approving the detention, as the order of erratum is dated 7.10.2009 and the order approving the detention is on 12.10.2009. Therefore, there is no merit in the said contention of the petitioner also. Petitioner has not produced the representation made by the detenu. We cannot describe the order of rejection of the representation as a one line order. There is no case for the petitioner, even before us, that any of the crimes which are alleged against the detenu are to be excluded for the purpose of considering whether he is a known goonda. There is no serious challenge to the objective satisfaction of the Magistrate that the detenu is a known goonda WP(CRL).541/09 S 11 by the alleged involvement of the detenu in the crimes stated in Ext.P1 order. In the circumstances of the case, we see no reason either to declare the detention illegal or to order release of the detenu.
The Writ Petition fails and it is dismissed.
Sd/= K.M. JOSEPH, JUDGE Sd/= P.Q. BARKATH ALI, JUDGE kbk.
// True Copy // PS to Judge