Kerala High Court
Rafiya vs State Of Kerala on 8 April, 2009
Bench: A.K.Basheer, P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 68 of 2009(S)
1. RAFIYA, W/O.ASHRAF, S/O.PAREETH,
... Petitioner
Vs
1. STATE OF KERALA,REP; BY SECRETARY,
... Respondent
2. THE DISTRICT MAGISTRATE AND DISTRICT
3. THE SUPERINTENDENT OF CENTRAL PRISON,
4. THE SUPERINTENDENT OF POLICE, ERNAKULAM
5. THE CIRCLE INSPECTOR OF POLICE,
For Petitioner :SRI.MATHAI VARKEY MUTHIRENTHY
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.BHAVADASAN
Dated :08/04/2009
O R D E R
A. K. Basheer & P. Bhavadasan, JJ.
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W.P (Crl) No. 68 of 2009
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Dated this the 8th day of April, 2009.
Judgment Basheer, J:
Petitioner's husband, Sri.Ashraf, S/o.Pareed of Perumbavoor Village in Ernakulam District was arrested and committed to Viyyur Central Prison, Thrissur on November 26, 2008, pursuant to Ext.P1 order of instant date, issued by the District Collector and District Magistrate, Ernakulam under Section 3(1) and (2) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (for short, the Act). The said order of detention is under challenge in this writ petition filed under Article 226 of the Constitution of India.
2. It is contended by the petitioner that the order of detention is ex facie illegal and vitiated inasmuch as there are no legal or valid grounds, to detain her husband under the Act, even assuming he is involved in some cases under the NDPS Act. It is further contended that the detaining authority has detained petitioner's husband in gross violation of the provisions contained in Section 7 (1) and (2) of the Act. Still further, neither the sponsoring authority nor the detaining authority is justified in treating the detenu as a Goonda or a Rowdy, it is contended by the petitioner.
3. A perusal of Ext.P1 order of detention would show that the detaining authority had issued Ext.P1 order of detention after arriving at a subjective satisfaction that the detenu had to be detained under the Act keeping in view his indulgence in anti social activities in Ernakulam rural area. The detaining authority, while referring to the report of the sponsoring authority, has noticed that 9 crimes registered by the Excise and Anti Narcotic Special Squad, Ernakulam in Perumbavoor and Hill Palace Police Station were pending against the detenu. It is further seen from Ext.P1 that WP(Crl).68/09. 2 the first of the 9 crimes was of the year 2004, while the last one was registered in October 2008. One of the 9 cases is pending before the Chief Judicial Magistrate's Court, Ernakulam and the other seven are pending trial before the Judicial Magistrate of First Class, Perumbavoor. The last crime is being investigated. The detaining authority, after considering the report of the sponsoring authority took the view that the petitioner's husband "is a hard core drug peddler and anti social, causing serious law and order problems creating a sense of fear and insecurity in Ernakulam district"
Thus the detaining authority formed the opinion that the detenu is a Goonda as defined under the Act.
4. It is not in dispute that the detenu was served with the order of detention, grounds of detention and also copies of the relevant documents indicated in the index annexed to those records. However it is contended by learned counsel for the petitioner that the arresting officer had not read out the order of detention to the detenu as mandated under sub-section (1) of Section 7 of the Act.
5. As regards the above contention, it may at once be noticed that the petitioner had not raised any specific ground in the writ petition pertaining to the violation of the above statutory provision. Anyhow, this being a valid legal ground available to the petitioner we are considering the above contention on its merit.
6. It can be seen from the order of detention as well as the grounds of detention that the detenu had written in his own hand that he had understood the contents of those documents after reading the same. It is true that the detaining authority had not specifically dealt with the above contention in the counter affidavit since, as mentioned by us earlier, no specific ground was raised by the petitioner in this regard. Since there is an WP(Crl).68/09. 3 endorsement made by the detenu himself on the order of detention as well as the grounds of detention that he had received the copy and read and understood the contents thereof, we are satisfied that there is no violation of the provisions contained in sub-section (1) of Section 7 at all.
7. As regards the other contention touching upon sub-section (2) of Section 7, it may yet again be noticed that in the grounds of detention it was specifically indicated by the detaining authority that the detenu would be entitled to file a representation before the Government as well as before the Advisory Board against the order of detention. In that view of the matter also it cannot be said that sub-section (2) of Section 7 had been violated.
8. The other contention raised by the learned counsel as regards Section 7 (2) is that there is nothing on record to indicate that copies of the grounds of detention and relevant documents were furnished to the detenu within 5 days from the date of order of detention. Such a specific contention was not raised in the writ petition. Moreover, the detaining authority has specifically contended that the statutory mandate in sub- section (2) of Section 7 had been complied with. It is true that the endorsement made by the detenu on these documents will not indicate the date on which they were served. But still in the absence of any specific plea in the writ petition we are satisfied that the above contention also cannot be accepted. Moreover, in the affidavit filed by the Sub Inspector of Police, the Arresting Officer, it has been specifically averred that all the above documents were served on the detenu at the time of his arrest itself.
9. Thus having regard to the materials available on record, we are unable to accept the contention raised by the petitioner that the respondents had violated the provisions contained in sub sections (1) and WP(Crl).68/09. 4 (2) of Section 7 of the Act.
10. The other contention raised by the petitioner is that the detenu could not have been declared or branded as a goonda merely for the reason that he is involved in a few cases under the NDPS Act. As has been noticed already, the detenu has already been charge sheeted in eight cases under the NDPS Act. In the ninth crime, investigation is in progress. The first of the nine crimes was registered against the detenu way back in the year 2004 and the last as late as in October, 2008. While conceding that the detenu is involved in nine cases under the NDPS Act, it is contended by the learned counsel that the definition of 'goonda' under Act, 2007 envisages a totally different situation. It is the contention of the learned counsel that by no stretch of imagination the detenu will fall under the definition of 'gooda' especially since in all the nine crimes registered against him so far, the quantity of Narcotic Drug is only small quantity. In all those cases the detenu is charged with bailable offences. Thus it is contended by the learned counsel that the detaining authority has totally misconstrued or misinterpreted the definition of 'gooda' under Act, 2007.
11. We are afraid that the above contention is totally misconceived and untenable. A perusal of the definition of 'goonda' along with that of "anti social activity" and "drug offender" will undoubtedly show that the detaining authority was eminently justified in issuing Ext.P1 order of detention.
12. We have also perused the copy of the order passed by the Advisory Board. It is seen from the said order that the detenu had submitted his representation before the Advisory Board. The Board had considered the representation of the detenu before forwarding its opinion to the WP(Crl).68/09. 5 Government. The detenu was also heard in person on January 14, 2009.
13. We do not find any illegality in the order of detention. There is no merit in any of the contentions raised by the petitioner.
The writ petition fails and it is accordingly dismissed.
A.K. BASHEER Judge P. Bhavadasan Judge an/sb