Kerala High Court
Shruthi P vs State Of Kerala on 6 October, 2009
Bench: R.Basant, M.C.Hari Rani
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 323 of 2009(S)
1. SHRUTHI P., W/O.RAVI.K.,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. DISTRICT MAGISTRATE
3. SUPERINTENDENT, CENTRAL PRISON,
For Petitioner :SRI.BECHU KURIAN THOMAS
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :06/10/2009
O R D E R
R.BASANT & M.C.HARI RANI, JJ.
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W.P(Crl.) No.323 of 2009
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Dated this the 6th day of October, 2009
JUDGMENT
BASANT, J.
What is the nature and quality of consideration which a representation made by a detenu under Article 22(5) of the Constitution of India and Section 7(2) of the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred to as the `KAAPA') must receive at the hands of the Government? Does the failure to give a real and proper consideration by the Government vitiate continued detention? These questions arise mainly for consideration in this Writ Petition.
(2) In this application for issue of a writ of habeas corpus filed under Article 226 of the Constitution of India, the petitioner, the wife of the detenu, assails Ext.P1 order of detention passed under Section 3(1) of the KAAPA against the detenu.
2. The petitioner is the wife of K.Ravi, the detenu. The detenu was involved in as many as 5 cases; the details of which are given below:
W.P(Crl.) No.323 of 2009 2
Case No. Date of Offences Status of Final Relevant offence alleged the case report document filed by Sl. the police No C.C.953/06 between 454,380,461 acquitted Ext.P6 26.02.2006 I.P.C and 1 03.03.2006 11/11/08 C.C.255/08 341, 323, pending trial Ext.R2(k) Ext.P7 324 r/w 34 on 02.07.09 I.P.C (but compounded 2 03/02/08 on 28.07.09) C.C.509/08 341, 323, pending trial Ext.R2(j) Nil 294 (b) r/w
3 02/05/08 34 I.P.C C.P.237/08 427, 506(i) pending trial Ext.R2(h) Nil & 308 I.P.C 4 07/09/08 S.T.C.758 160 I.P.C Pleaded Nil Nil of 2008 guilty on 18.11.2008.
Rs.100/-
5 11/07/08 imposed
3. The Superintendent of Police, Kasargod, by his report under Section 3(1) of the KAAPA dated 23.01.09 [copy produced as Ext.R2(g)], submitted a proposal to the 2nd respondent (District Magistrate) to invoke the powers under Section 3(i) of the KAAPA to detain the detenu. Accepting the report of the sponsoring authority, Ext.P1 order of detention was passed on 16.02.2009. The order could not be executed W.P(Crl.) No.323 of 2009 3 for some time. Finally in execution of Ext.P1 order, the detenu was arrested and detained on 02.07.2009. Copies of the order and grounds were furnished to the detenu in due time and the detenu submitted Ext.R2(m) representation dated 08.07.09 to the Government. That representation submitted through the prison authorities was received by the prison authorities on 08.07.09 and it was forwarded to the Government. The Government allegedly received the same on 13.07.09. In the meantime, Ext.P5 order of approval dated 10.07.09 was passed by the Government under Section 3(3) of the KAAPA. After receipt of Ext.R2(m) representation, the Government, by Ext.P8 order dated 17.07.09, rejected the said representation. In accordance with the provisions of the KAAPA, the Advisory Board considered the matter and opined to the Government that there was sufficient reason to justify detention. Accordingly Ext.R1(a) order dated 26.08.09 was passed by the Government confirming the order of detention under Section 10(4) of the KAAPA. Accordingly the detenu will have to remain in custody for a period of 6 months from 02.07.09. It is at this juncture that we are called upon to consider the W.P(Crl.) No.323 of 2009 4 request of the petitioner, the wife of the detenu to set aside the order of detention and to set the detenu at liberty.
4. We have heard the learned counsel for the petitioner and the learned Additional Director General of Prosecution. The learned counsel for the petitioner assails the impugned order and the continued detention on the following:
GROUNDS I) 2 of the 5 cases referred above should not at all have been reckoned as relevant to decide whether the detenu is a known goonda or a known rowdy.
II) The remaining 3 cases also do not bring the detenu within the sweep of the expression "known goonda/known rowdy" inasmuch as there is no allegation therein of the detenu having been involved in any organised crime affecting public order.
III) The alleged contumacious acts even if true could not have instilled the latter subjective satisfaction under Section 3 of the KAAPA in the mind of the authorities that there was any threat to public order.W.P(Crl.) No.323 of 2009 5
IV) There has been no proper application of mind by the sponsoring authority or the detaining authority before passing Ext.P1 order.
V) The Government before passing the order of approval under Section 3(3) had not applied its mind properly and correctly.
VI) The valuable right of the detenu under Article 22(5) of the Constitution of India and Section 7(2) of the KAAPA to get his representation Ext.R2(m) considered properly by the Government has been violated by the Government in passing Ext.P8 order.
Ground No.I
5. The objection is raised regarding case No.1 and Case No.5 shown in the tabular column given above. The order of detention Ext.P1 was dated 16.02.2009. The report of the sponsoring authority Ext.R2(g) was submitted on 23.01.09. Case No.1 had ended in acquittal on merits as early as on 11.11.08. Case No.5 had also come to an end on 18.11.2008 on which day plea of guilty of the detenu was accepted and a fine of Rs.100/- was imposed on him. Both these cases were not current and live on the dates of Ext.R2(g) and Ext.P1. The W.P(Crl.) No.323 of 2009 6 sponsoring authority erred grossly in assuming that these cases are pending. The detaining authority also erred in accepting the sponsoring authority's report that these 2 cases are pending. For the reason that these 2 cases were not pending on the dates of Ext.R2(g) and Ext.P1, the action of the sponsoring authority and the detaining authority is vitiated. Moreover it is submitted that the 5th case in which allegation is raised only under Section 160 I.P.C is not a case which can bring an offender within the sweep of the definition of a `known goonda or known rowdy' under Section 2(o) or 2(p) of the KAAPA.
6. We are in ready agreement with the learned counsel for the petitioner. Cases 1 and 5 having been disposed of long prior to Ext.R2(g) and Ext.P1, those should not have been taken into reckoning while considering whether the detenu is a known goonda or known rowdy on 16.02.09, the date of the order of detention. Further, the counsel is well founded in his contention that a prosecution under Section 160 I.P.C cannot bring a person within the sweep of a rowdy, goonda, known goonda or known rowdy under Sections 2(j), 2(t), 2(o) or 2(p) of the KAAPA.
W.P(Crl.) No.323 of 2009 7
7. Though we agree with the contention of the learned counsel for the petitioner on this first ground, we are afraid that the detenu cannot claim any benefit on the basis of the said finding as cases 2 to 4, three in number, all of which were pending on the dates of Ext.R2(g) and Ext.P1, would certainly bring the detenu within the sweep of the expression `rowdy' in Section 2(t), `goonda' in Section 2(j) and `known goonda' in Section 2(o) of the KAAPA subject of course to our finding under Ground No.II. The prayer to invalidate the order of detention and the consequent detention on ground No.1 must, in these circumstances, fail.
Grounds II and III
8. For the sake of convenience, we are considering the challenge on grounds II and III together. Under ground II it is contended that the remaining 3 cases should not have been taken into consideration and they could not have brought the detenu within the sweep of the expression `known goonda'. The crux of the contention is that the said 3 offences are not offences which reveal commission of any organised crime.
9. Under Ground No.III it is contended that inasmuch as reference is made to case Nos.II to IV, to justify W.P(Crl.) No.323 of 2009 8 entertainment of the latter subjective satisfaction, the order is vitiated because these 3 cases do not reveal any threat to public order and at worst what is revealed is only a threat to law and order.
10. The learned counsel for the petitioner places reliance on the statement of objects and reasons which prompted the legislature to pass the KAAPA. Reliance is placed particularly on paragraphs 1 and 2 of the statement of objects and reasons, which are extracted below:
"Organised criminal activity has become a threat to both the economic and physical security of the State and Citizen. These activities thrive by pre- planned organisation, criminal networking and the profits generated from unlawful activities. These type of criminal activities create a feeling of insecurity in the society by intimidating or attacking law abiding citizens who oppose or give evidence against them. These organised criminals foil successful investigation and successful prosecution by exploiting the safeguards provided in general law to protect the average citizens against misuse of authority by official functionaries.
(2) The existing laws are inadequate in preventing and controlling the organised criminal activity. Hence it became imperative to enact a legislation to prevent and control the organised anti-
social activities in the State."
11. The counsel further contends that the definition of a `goonda' in Section 2(j) as also the definition of `antisocial W.P(Crl.) No.323 of 2009 9 activity' in Section 2(a) and the definition of rowdy in Section 2
(t) must assume importance and significance in this context. We extract below Section 2(a), 2(j) and 2(t) of the KAAPA.
Section 2(a): `Anti Social Activity' means acting in such manner as to cause or likely to cause, directly or indirectly, any feeling of insecurity, danger or fear among the general public or any section thereof, or any danger to safety of individuals, safety of public, public health or the ecological system or any loss or damage to public exchequer or to any public or private property or indulges in any activities referred in clauses (c), (e),
(g), (h), (i), (l), (m), (n), (q), and (s) of this section.
Section 2(j): `Goonda' means a person who indulges in any anti-social activity or promotes or abets illegal activities which are harmful for the maintenance of the public order directly or indirectly and includes a bootlegger, a counterfeiter, a depredator or environment, a digital data and copy right pirate, a drug offender, an Hawala racketeer, an hired ruffian, rowdy, an immoral traffic offender, a loan shark or a property grabber."
Section 2(t): "2(t) "rowdy" means and includes a person who either by himself or as a member of a gang commits or attempts to commit, or abets the commission of any offences under Sections 153A and 153B of Chapter VIII and Chapters XV, XVI, XVII & XXII of the Indian Penal Code, 1860(Central Act 45 of 1860), or any offences under the provision of the Arms Act, 1959 (Central Act 54 of 1959), or the Explosive Substances Act, 1908 (Central Act 6 of 1908),
(i) punishable with five or more years of imprisonment of any type, or;
W.P(Crl.) No.323 of 2009 10
(ii) with less than five years of imprisonment of any type, except those punishable with less than one year of imprisonment; or
(iii) such offences under any other law for the time being in force, coming under item (i) or (ii), as may be notified by the Government, from time to time.
(emphasis supplied)
12. The learned counsel for the petitioner points out that the KAAPA is enacted by the Kerala legislature in exercise of its legislative competence as per Entry 3 of List III of Schedule 7 of the Constitution of India, which we extract below:
"Preventive detention for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community; persons subjected to such detention."
(emphasis supplied) `Maintenance of public order' is the only ground on which the legislative competence to order detention of the detenue on the basis of 3 cases - cases 2 to 4 referred above, can be justified. The counsel contends that inasmuch as the said cases 2 to 4 do not reveal any organised criminal activity, they cannot be reckoned as sufficient to bring the alleged activity within the sweep of Section 2(a) and consequently to bring the detenu within the sweep of the expression 2(j) of the KAAPA. W.P(Crl.) No.323 of 2009 11
13. The counsel in this context places reliance on the decision of a Division Bench of this Court in Nisha Salim v. State of Kerala [2009(3) KLT 22]. In particular reliance is placed on para.8 and 8(a) of the said decision, which we extract below.
"Para.8: It is undoubtedly true that personal liberty of a person cannot be trifled with by the Police or the executive authority at their whims and fancies. The power of detention has to be exercised by an authority authorised under law with utmost diligence and caution. The order of detention has to satisfy the test of reasonableness and fair play. The detaining authority has to arrive at the subjective satisfaction about the imperative need to detain a person after due application of mind. All the inputs gathered by the detaining authority must lead to the irresistible conclusion that the freedom of movement enjoyed by the detenu may be misused by him to create havoc or breach of peace in the society, thereby putting the peaceful life of the people in peril. It would be a shame if the law enforcing authorities throw up their arms in desperation saying that a particular individual in a given area or locality cannot be controlled by the Police force. The Indian Penal Code and other relevant enactments should, under normal circumstances, take care of situations which may have a propensity to disturb the peaceful life of the local people. The Magisterial powers given under the Code of Criminal Procedure are also sufficient to tackle any untoward situations. The Police authorities are given wide powers under the Police Act and other allied enactments to see that "law and order" and public order are maintained. If an individual creates any law and order problem, he can be dealt with by the Police using the powers vested in them.W.P(Crl.) No.323 of 2009 12
8A. It is true that preventive detention can become a draconian power if it is wielded by the executive or the Police at the drop of a hat. The threat to the society from the proposed detenue should be such that his activities cannot be controlled, or curtailed by using the ordinary means of prevention. It is trite that no citizen can be put behind the bars on the specious ground that he is likely to cause breach of peace in the locality or he may commit some crime in future, if he is allowed to move about freely. As contended by the learned counsel involvement of a person in "several cases"
may not as such be a ground to use the power of preventive detention, particularly when the crimes allegedly registered against him are still under investigation."
14. According to the learned counsel inasmuch as the allegations raised in cases 2 to 4 do not reveal the commission of any organised crime, they cannot be reckoned at all as relevant to decide whether the detenu is a rowdy and consequently a goonda and a known goonda.
15. The learned counsel for the petitioner contends that the distinction between threat to law and order and threat to public order must be alertly borne in mind by this Court while considering the challenge raised on the basis of these two grounds. The allegations raised against the detenu in cases 2 to 4, even if accepted in toto, do not reveal any organised criminal activity or threat to maintenance of public order and consequently those 3 cases should not have been taken into W.P(Crl.) No.323 of 2009 13 consideration to entertain the initial threshold objective satisfaction - as to whether the detenu is a known goonda or a known rowdy. They should not, at any rate, have been taken into consideration for entertaining the latter subjective satisfaction - as to whether the detenue deserves to be detained to prevent him from indulging in antisocial activities, contends counsel.
16. It will only be apposite straight away to consider the precedents relied on by the learned counsel for the petitioner. The counsel first of all relies on the observations of the Supreme Court in Arun Ghosh v. State of W.B [(1970) 1 SCC 98] (para.15) which are stated with approval in the later decision Ajay Dixit v. State of U.P [(1984) 4 SCC 400. We extract the same below:
"It means therefore that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. The French distinguish law and order and public order by designating the latter as order publique. The latter expression has been recognised as meaning something more than ordinary maintenance of law and order. Justice Ramaswami in Writ Petition 179 of 1968 drew a line of demarcation between the serious and aggravated forms of breaches of public order which affect the community or endanger the public interest at large W.P(Crl.) No.323 of 2009 14 from minor breaches of peace which do not affect the public at large. He drew an analogy between public and private crimes. The analogy is useful but not to be pushed too far. A large number of acts directed against persons or inividuals may total up into a breach of public order. In Dr.Ram Manohar Lohia case 1 examples were given by Sarkar, and Hidayatullah, JJ. They show how similar acts in different contexts affect differently law and order on the one hand and public order on the other. It is always a question of degree of the harm and its effect upon the community. The question to ask is :
Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely and individual leaving the tranquility of the society undisturbed ? This question has to be faced in every case on facts. There is no formula by which one case can be distinguished from another."
17. The counsel then relies on the following observations in para.12 and 13 in Angoori Devi v. Union of India [(1989) 1 SCC 385] to highlight the distinction between threat to law and order from a threat to maintenance of public order.
"Para.12: The impact on "public order"
and "law and order" depends upon the nature of the act, the place where it is committed and motive force behind it. If the act is confined to an individual without directly or indirectly affecting the tempo of the life of the community, it may be a matter of law and order only. But where the gravity of the act is otherwise and likely to endanger the public tranquility, it may fall within the orbit of the public order. This is precisely the distinguishing feature between the two concepts. Sometimes, as observed by W.P(Crl.) No.323 of 2009 15 Venkatachaliah, J. in Ayya alias Ayub v. State of U.P: "What might be an otherwise simple `law and order' situation might assume the gravity and mischief of a `public order' problem by reason alone of the manner or circumstances in which or the place at which it is carried out.". Necessarily, much depends upon the nature of the act, the place where it is committed and the sinister significance attached to it.
Para.13: As for example dare-devil
repeated criminal acts, open shoot out,
throwing bomb at public places, committing serious offences in public transport, armed persons going on plundering public properties or terrorising people may create a sense of insecurity in the public mind and may have an impact on "public order". Even certain murder committed by persons in lonely places with the definite object of promoting the cause of the party to which they belong may also affect the maintenance of `public order'."
18. It is now trite that before a valid order of detention is passed under Section 3 of the KAAPA, the detaining authority must first entertain the requisite twin satisfactions. Firstly the initial objective satisfaction must be entertained that the detenu is a known goonda or known rowdy. Then the authority must entertain the latter subjective satisfaction that detention of the detenu is necessary to prevent such detenu from indulging in antisocial activity. Only when both satisfactions are validly entertained on the basis of the W.P(Crl.) No.323 of 2009 16 materials available before him, can the detaining authority pass a valid order of detention under Section 3 of the KAAPA.
19. We are certainly of the opinion that while considering the entertainment of the latter subjective satisfaction, every detaining authority is bound to consider whether the acts complained of against the detenu do really pose a threat to maintenance of public order. When the acts alleged are such that they threaten only the law and order and not public order, they cannot be reckoned as sufficient to justify an order of preventive detention.
20. But we are unable to agree with the learned counsel for the petitioner in the challenge raised by him on ground No.II that even while considering whether a person is a rowdy under section 2(t) or whether he is consequently a goonda under section 2(j) and known goonda or known rowdy under sections 2(o) and 2(p) , the acts alleged must reveal organised criminal activity and must threaten public order and not merely law and order.
21. The scheme of the Act must be borne in mind. Undoubtedly to constitute antisocial activity under section 2(a) and to come within the purview of the descriptive former part W.P(Crl.) No.323 of 2009 17 of the definition of goonda in Section 2(j), the acts alleged must threaten maintenance of public order. But the language of Section 2(t) which we have extracted above does not at all import the requirement that the offences specified therein must also threaten maintenance of public order and not merely law and order. The language does not at all insist that the offences under Section 2(t) must be offences committed by a person as part of organised criminal activity. The plain language of Section 2(t) does not permit us to insist on such a requirement. Consequently a `rowdy' who gets include in the definition of `goonda' in 2(j) by operation of the latter inclusive (deeming) part of the definition cannot insist that he is not a `rowdy' or `goonda' for the reason that any or all the offences alleged against him referred to in Section 2(t) do not refer to organised criminal activity or do not threaten maintenance of public order. A detenu - either a known goonda or known rowdy cannot validly urge that he is not a known goonda or known rowdy for the reason that the cases relied on against him under Section 2(t), 2(p) or 2(o) are cases which do not reveal commission of organised crime and they do not pose any threat to public order. That does not appear to be the scheme W.P(Crl.) No.323 of 2009 18 of the Act at all. Initial threshold satisfaction that a person is a known goonda or a known rowdy must certainly be entertained by the detaining authority. To entertain that, the detenu need only satisfy the definition of goonda and known goonda or rowdy and known rowdy. The definitions of these expressions in 2(j) (inclusive latter part) and 2(o) as also 2(t) and 2(p) do not at all demand that the offences referred to therein must also be instances of organised crime or that they must threaten public order. Such a requirement cannot be read into the definition of `rowdy' in Section 2(t) or known rowdy in 2(p) or even the definition of goonda in Section 2(j) (inclusive latter half) and known goonda in 2(o). Of course, we repeat that while considering the latter subjective satisfaction, it will certainly have to be considered whether the subjective satisfaction of the need to preventively detain the detenu is entertained on grounds/past conduct which are likely to threaten public order in future.
22. In these circumstances, we are unable to accept the challenge raised on ground No.II that the detenu cannot be held to be a known goonda or known rowdy for the reason that cases 2 to 4 referred above do not reveal instances of W.P(Crl.) No.323 of 2009 19 organised crime. The challenge on ground No.II therefore fails.
23. Whether the acts alleged would reveal a threat to public order shall now be considered in detail for the purpose of considering the challenge under ground No.III.
24. The learned Additional Director General of Prosecution submits that there is no litmus test to decide whether the acts alleged constitute a threat to public order or constitute only threat to law and order. The relevant passages of binding precedents have been extracted above. To sum up, the test is only whether the act is confined to an individual without directly or indirectly affecting the tempo of life of the community. If it affects only the victim or victims, it can be reckoned as a threat to law and order only; whereas if the nature and gravity of the act is such that it is likely to endanger public tranquility affecting the tempo of life of the community, it would fall within the ambit of public order.
25. In this context we refer to the allegations raised in cases 2 to 4 above.
26. In C.C.No.255 of 2008, the second case, the final report in which is produced as Ext.R2(k), the allegations as W.P(Crl.) No.323 of 2009 20 revealed from the F.I.R as also the final report filed is that on account of prior animosity of some others against the victims, 3 accused persons including the detenu herein attacked the victims at a public place. In the third case, C.C.No.509/2008, final report in which is produced as Ext.R2(i), the allegation as revealed from the F.I.R and the final report is that the accused persons including the detenu dragged the victim, who was sitting in an autorickshaw in a public place, out of the auto rickshaw and indulged in wanton acts of violence against him. In C.P.No.237 of 2008 (ie.Case No.5), the last of the 3 cases, the final report is Ext.R2(h), the allegations in the F.I.R read along with the allegations in the charge sheet reveal that a public transport vehicle (bus) which was operating on the route was stopped to enable the passengers to disembark. Then the detenu on account of prior animosity threw a stone at the bus and thereby committed the offences. It is further alleged that the detenu threatened the victim that if the police were informed, they will not be permitted to work in the bus.
27. We have referred to the allegations in cases 2 to 4 above only to note that by no stretch of imagination can it be safely held that the allegations do not constitute any threat to W.P(Crl.) No.323 of 2009 21 public order and must be reckoned as posing a threat to law and order only. It will not be inapposite in this context to note that the subjective satisfaction is not justiciable. The fact that the sponsoring authority and the detaining authority reckoned these allegations as sufficient to constitute a threat to public order warranting detention cannot, at any rate, be held to be as sufficient ground to interfere with the impugned order. The plea that subjective satisfaction could not have been entertained at all cannot be accepted. The challenge raised on ground No.III must also, in these circumstances, fail. Ground No.IV
28. The learned counsel for the petitioner has brought to the notice of the Court several circumstances to contend that there has been no proper application of mind either by the sponsoring authority or the detaining authority. The counsel relies on precedents to impress upon the Court the duty of the sponsoring authority to place all relevant facts before the detaining authority and the duty of the detaining authority to consider all relevant facts and circumstances before passing the order of detention. The counsel first of all contends that mind of the sponsoring or detaining authority was not applied W.P(Crl.) No.323 of 2009 22 to the circumstance that 2 out of the 5 cases are certainly cases which cannot be taken note of, ie. case Nos.1 and 5 referred above. We have already, while considering Ground No.I, come to the conclusion that those 2 cases should not have been reckoned by the detaining authority.
29. But the mere fact that those 2 circumstances were taken into consideration by the detaining authority cannot by itself justify invalidation of the impugned order. It is in this context that Section 7(4) of the KAAPA becomes relevant and significant. We extract Section 7(4) of the KAAPA.
"Section 7(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."
30. If the impugned order is justified by the 3 other cases referred to as cases 2 to 4, the fact that cases 1 and 5 were also taken into consideration unjustifiably would not by itself justify invalidation of the order of detention. W.P(Crl.) No.323 of 2009 23
31. The learned counsel points out that though the sponsoring authority had submitted the proposal under Section 3(1), reckoning the detenu as a known rowdy, the detaining authority had reckoned him as a known goonda to pass the impugned order. We do take note of the incongruity. But we note that cases 2 to 4 referred above are sufficient to bring the alleged detenu within the sweep of the expression `known goonda and/or known rowdy' under Section 2(o) and 2(p) of the KAAPA. In these circumstances, the fact that the sponsoring authority had referred to the detenu as a known rowdy, while the detaining authority when he applied his mind had reckoned him only as a known goonda, is not found to be of any crucial significance, in the facts of the case. It appears that the detaining authority on application of his mind to the materials placed before him had come to the conclusion that the detenu is a known goonda and is not to be reckoned as a known rowdy. In the facts of this case that transformation is found to be of no crucial significance.
32. The counsel further points out that in Ext.R2(g) submitted by the sponsoring authority to the detaining authority, there is reference to "rioting cases". The learned W.P(Crl.) No.323 of 2009 24 counsel contends that this expression has been employed unjustifiably by the sponsoring authority and not one of the 5 cases relied on by the sponsoring and detaining authority refers to a case of rioting. We do take note of this submission. It is true that no allegations are raised of the detenu having committed the offence of rioting in any of the 5 cases. The detaining authority has not relied on the allegation that rioting has been committed. More over a careful reading of Ext.R2(g) cannot lead to the conclusion that the expression rioting cases was used by the sponsoring authority to indicate that the detenu was facing prosecution in any case for the offence of rioting. The detaining authority has not borrowed that expression. He has not proceeded on the assumption that the detenu is allegedly involved in rioting cases and in these circumstances the contention that there has been no proper application of mind by the sponsoring and detaining authority for the above reasons cannot also succeed. The challenge raised on Ground No.4 does also, in these circumstances, fail. Ground No.V
33. The learned counsel for the petitioner contends that the approval under Section 3(3) cannot be a mechanical and W.P(Crl.) No.323 of 2009 25 routine act on the part of the Government. The counsel relies on Section 3(3) to contend that the authorised officer/District Magistrate is obliged to forward all records to the Government and the Government is bound to apply its mind before passing the order of approval under Section 3(3). The learned counsel for the petitioner has brought our attention to Ext.P5 order to contend that there is no proper application of mind by the Government before it passed the order of approval under Section 3(3). The counsel in particular points out that Ext.P5 only shows that the Government in passing the order of approval under Section 3(3) was only filling up the blanks. In support of this contention the counsel relies on the words in Italics typed in Ext.P5. The counsel contends that the order of approval, the conclusion is inevitable, is prepared in a format by filling up the blanks. The name of the district - Kasargod, the number of the order of detention, the name of the detenu are all typed in Italics and this, according to the counsel, indicates that there has been no proper application of mind as required on the part of the Government before passing an order of approval under Section 3(3). In this context, the learned counsel for the petitioner places reliance on the W.P(Crl.) No.323 of 2009 26 decision of the Constitution Bench of the Supreme Court in Kamleshkumar Ishwardas Patel v. Union of India [(1995) 4 SCC 51]. The learned counsel contends that the Supreme Court had occasion to consider an identical provision in Section 3(4) of National Security Act (in short `NSA') and has made the following observations in para.34 of the said order. The counsel contends that both under Section 3(4) of the N.S.A and Section 3(3) of the KAAPA, the initial order of detention passed by a delegate of the Government is to hold the field only for a prescribed period. Thereafter it is not the order of such delegate that justifies the detention of the detenu. It is only the order of approval passed by the Government that justifies further detention. Such a crucial order cannot and ought not to be passed without proper application of mind. The counsel contends that Ext.P5 significantly betrays the fact that such an alert application of mind had not preceded the passing of the order under Section 3(3). The counsel particularly relies on the following observations in para.34.
"Para.34:.................................................. ................................................................. The said provision further prescribes that no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the W.P(Crl.) No.323 of 2009 27 State Government. This would show that it is the approval of the State Government which gives further life to the order which would otherwise die its natural death on the expiry of twelve days after its making. It is also the requirement of Section 3(4) that the report should be accompanied by the grounds on which the order has ben made and such other particulars as, in the opinion of the said officer, have a bearing on the matter which means that the State Government has to take into consideration the grounds and the said material while giving its approval to the order of detention. The effect of the approval by the State Government is that from the date of such approval the detention is authorised by the order of the State Government approving the order of detention and the State Government is the detaining authority from the date of the order of approval................................................. ............................................................................. ...... Approval, actual or deemed, postulates application of mind to the action being approved by the authority giving approval. Approval f an order of detention would require consideration by the approving authority of the grounds ad the supporting material on the basis of which the officer making the order had arrived at the requisite satisfaction for the purpose of making the order of detention."
(emphasis supplied)
34. The learned counsel for the petitioner contends that such consideration as stipulated by the Supreme Court did not precede the order of approval Ext.P5 under Section 3(3). The counsel contends that Ext.P5 order of approval and the subsequent detention of the detenu must, at any rate, be W.P(Crl.) No.323 of 2009 28 invalidated for the reason that such an anxious consideration had not preceded Ext.P5.
35. The learned ADGP contends that Kamleshkumar Ishwardas Patel v. Union of India does not at all deal with the manner in which the order of approval ought to be worded. There can be no dispute that the approving authority, ie. the Government under Section 3(3) has to consider all materials and pass an appropriate order. This does not mean that all the materials must be adverted to and a detailed speaking order rendered by the Government while granting approval under Section 3(3). The learned ADGP contends that the requirement of consideration is one thing. But the insistence that the order must reflect such consideration in detail, is entirely different. The learned ADGP points out that what the Government is expected to do under Section 3(4) of the NSA and 3(3) of the KAAPA is only to consider the materials available and decide whether the course adopted by the delegate is justified. The learned ADGP submits that the same question had come up for consideration earlier before another Constitution Bench in Bidya Deb v. Dist.Magis., Tripura [AIR 1969 S.C 323]. The Supreme Court W.P(Crl.) No.323 of 2009 29 in that case was considering an identical provision in Section 3 (3) of the Preventive Detention Act. We have gone through Section 3(3) of the Preventive Detention Act, Section 3(4) of the NSA and Section 3(3) of the KAAPA in detail. We do not think it necessary to extract the relevant statutory provisions in this judgment. Suffice it to say that they are substantially identical. The learned ADGP relies on the observations of the Supreme Court in para.9 of the Bidya Deb v. Dist.Magis., Tripura. The question that came up for consideration in that case was whether it was obligatory that an order of approval should be furnished to the detenu. The learned ADGP points out that the Constitution Bench of the Supreme Court in that decision had taken the view that even the omission to furnish a copy of the order of approval does not vitiate or lead to invalidation of the detention. The following passages in para.9 and 10 are relied on by the learned ADGP.
Para.9:.......................................................... .........................................................
Section 3(3) of the Preventive Detention Act does not specify that the order of approval is anything more than an administrative approval by the State Government. If this be so the necessity of communication of the approval does not arise with that strictness a s does the W.P(Crl.) No.323 of 2009 30 decision under Rule 30A (8) of the Defence of India Rules."
Para.10:....................................................... ......................................................... The scheme of the Preventive Detention Act is merely to approve the original detention by the District Magistrate and the continued detention after 12 days is not under any fresh order but the same old order with the added approval and what the detenu can question, if he be so minded, is the original detention and not the approval thereof."
36. The learned ADGP submits that the decision in Bidya Deb v. Dist.Magis., Tripura continues to hold the field as the same is directly on the point. Their Lordships were deciding the question whether the omission to furnish the order of approval would vitiate or lead to invalidation of the order of detention. The learned ADGP points out that in Kamleshkumar Ishwardas Patel v. Union of India, the Constitution Bench was not directly considering the nature of the order that ought to be passed under Section 3(3). The question that arose in that decision primarily was whether the detenu has a right to make a representation before the detaining authority and whether he has only a right to make a representation before the Government. In Kamleshkumar W.P(Crl.) No.323 of 2009 31 Ishwardas Patel v. Union of India, the Supreme Court took the view that the detenu has a right to make a representation before the detaining authority which passed the order and the deemed approval by the Government does not take away the right of the detenu to make a representation before the delegate who passed the order of detention. It is in that context that the observations in para.34 of Kamleshkumar Ishwardas Patel v. Union of India were made. Kamleshkumar Ishwardas Patel v. Union of India does not refer to Bidya Deb v. Dist.Magis., Tripura specifically. Both decisions are by Constitution Benches and attempt must certainly be made by this Court to harmonise the observations/dicta.
37. We have no hesitation to agree that order of approval under Section 3(3) must be preceded by anxious consideration of all the materials that are forwarded to the Government by its delegate - the District Magistrate, who passed the order. But it must be noted that it is only a course of approving or otherwise of the action of the delegate and the scheme of Section 3(3) clearly reveals that it is only a supervisory jurisdiction to ensure that the delegate has acted W.P(Crl.) No.323 of 2009 32 in tune with the delegation and true to the mandate under Section 3. An order of approval, the scheme of Section 3(3) clearly reveals, is not passed on the basis of any representation made to the Government by the detenu. In the scheme of Section 3(3), it would be idle to expect the Government before passing the order of approval to consider the objections raised and take a decision on such objections. We agree that alert application of mind must precede an order of approval under Section 3(3). But we are unable to agree that the order of approval must be more speaking than Ext.P5. The contention that Ext.P5 does not speak sufficiently cannot be accepted.
38. We now come to the contention that Ext.R2(m) was not considered by the Government before passing Ext.P5. The learned counsel for the petitioner contends that after the detention of the detenue on 02.07.09, he had promptly made Ext.R2(m) representation to the Government. That representation is dated 08.07.09 and the same was handed over to the prison authorities on the same date, ie. 08.07.09. Ext.P5 order of approval is seen passed on 10.07.09. Going by the stipulations of Section 3(3), the Government could have waited till 20.07.09 to pass the order of approval. According to W.P(Crl.) No.323 of 2009 33 the learned counsel, there was no need to pass the order under Section 3(3) on 10.07.09. The representation had been handed over to an officer of the State (Jail authorities) on 08.07.09. The counsel contends that non consideration of the representation dated 08.07.09 (Ext.R2(m)) by the Government before it passed Ext.P5 order is fatal and that must invalidate Ext.P5 order.
39. We are unable to agree. We do not accept that the Government is obliged to wait for the representation and pass an order under Section 3(3) only after considering such representation. We repeat that what is contemplated under Section 3(3) is a supervisory jurisdiction to ensure that the delegate has acted within the scope of the delegation and true to the mandate under Section 3. It was certainly unnecessary for the Government to wait for the representation and wait till the last possible date on which the order of approval could have been passed in terms of Section 3(3). Ext.P5 order was passed on 10.07.09 and it is asserted that Ext.R2(m) had reached the Government only on 13.07.09. In these circumstances, we are unable to accept the argument that Ext.P5 must be held to be vitiated and improper for the reason W.P(Crl.) No.323 of 2009 34 that it had been passed without considering Ext.R2(m) representation.
40. For the above reasons, we feel that there is no merit in the challenge raised on ground No.V. The challenge fails. Ground No.VI
41. We now come to the most important contention advanced competently and with thorough preparation by Shri Bechu Kurian Thomas, the learned counsel for the petitioner. The counsel contends that Ext.R2(m) representation made by the detenu through the prison authorities has not been considered by the Government in accordance with law. The learned counsel relying on Article 22(5) of the Constitution and Section 7(2) of the KAAPA contends that the statute as well as the Constitution concede to the detenu a right to make a representation. It is trite that he must be given an effective, expeditious and efficacious opportunity to make such a representation after his detention. It is also trite, and it is unnecessary for us to refer to precedents, that this right to make a representation inheres in it a corresponding right to proper and expeditious consideration of such representation. Though Article 22(5) of the Constitution of India and even W.P(Crl.) No.323 of 2009 35 Section 7(2) of the KAAPA do not prescribe the details of the manner in which such representation is to be considered, it is well settled that such representation must be considered by the authorities properly. The learned counsel for the petitioner relies on precedents to contend that the detenu is entitled to real and proper consideration of such representation.
42. There has been dispute earlier as to whether the consideration of this representation is an administrative act or quasi judicial act. There has been dispute as to whether an unbiased independent authority ought to consider such representation or not. There has also been dispute as to whether there is a right of hearing before such representation is considered and disposed of. There has also been dispute as to whether the representation must be disposed of by a speaking order giving reasons.
43. All those controversies now appear to have been settled. The Constitution Bench of the Supreme Court in H.Saha v. State of West Bengal [A.I.R 1974 S.C 2154] has settled the controversy and it has clearly been held that there is no right of hearing or an obligation to pass a speaking W.P(Crl.) No.323 of 2009 36 detailed order. We think it sufficient to refer to para.26 of H.Saha v. State of West Bengal, which reads as follows:
"Para.26: The opinion of the Board as well as the order of the Government rejecting the representation of the detenu must be after proper consideration. There need not be a speaking order. There is also no failure of justice by the order not being a speaking order. All that is necessary is that there should be a real and proper consideration by the Government and the Advisory Board."
(emphasis supplied) The counsel laments that even that consideration - a real and proper consideration, has not been given to Ext.R2(m) representation which was disposed of by Ext.P8 order.
44. The learned counsel for the petitioner then relies on the decision in Bhut Nath Mete v. State of W.B [(1974) 1 SCC 645] to contend that though a speaking order giving reasons cannot be insisted, the detenu is entitled to have his representation considered properly. The counsel relies on the following observations in para.23 of the above decision.
"Para.23:We are not persuaded that a speaking order should be passed by Government or by the Advisory Board while approving or advising continuance of detention although a brief expression of the principal reasons is desirable. .......................................... ............................................................................. ....................................W.P(Crl.) No.323 of 2009 37
The bare bones of natural justice in this context need not be clothed with the ample flesh of detailed hearing and elaborate reasoning. It must be self-evident from the order that the substance of the charge and the essential answers in the representation have been impartially considered."
(emphasis supplied) The counsel contends that there is no such consideration in Ext.P8.
45. Lastly and finally the learned counsel for the petitioner relies on the decision in John Martin v. State of W.B[(1975) 3 SCC 836]. A 3 Judge Bench of the Supreme Court, considering the precedents rendered earlier, proceeded to observe thus in para.3 of the said decision.
Para.3: ................................................................. .............................................................................. ....... This however, does not mean that the appropriate Government can reject the representation of the detenu in a casual or mechanical manner. The appropriate Government must bring to bear on the consideration of the representation an unbiased mind. There should be, as pointed out by this Court in Haradhan Saha's Case, "a real and proper consideration" of the representation by the appropriate Government. We cannot over- emphasise the need for the closest and most zealous scrutiny of the representation for the purpose of deciding whether the detention of the petitioner is justified."
(emphasis supplied) W.P(Crl.) No.323 of 2009 38
46. The short grievance of the petitioner is that the detenu's representation Ext.R2(m) did not receive a real and proper consideration. He complains that it is not self evident from the order that the substance of the charge and essential answers in Ext.R2(m) representation have been impartially considered by the Government. The Government in passing Ext.P8 order has dealt with the representation in a casual and mechanical manner, laments the petitioner. The Government has not brought to bear on the consideration of the representation an unbiased mind. The zealous scrutiny of the representation which John Martin v. State of W.B insists has not been given in the instant case, contends the learned counsel for the petitioner.
47. The learned ADGP on the contrary contends relying on the very same decisions that it is not necessary at all for the Government to pass a detailed speaking order. According to the learned ADGP, Ext.P8 order reveals anxious consideration of the representation. A real and proper consideration as insisted by H.Saha v. State of West Bengal has been given to the representation. Before rejecting the representation W.P(Crl.) No.323 of 2009 39 under Ext.P8 order, anxious and zealous scrutiny has been made by the Government, contends the learned ADGP.
48. We must now consider whether Ext.P8 reveals (or can lead us to presume) that such real and proper consideration has been rendered or not. It will be apposite to refer to the language of Ext.P8. Ext.P8 translated roughly reads as follows:
"Your representation dated 08.07.09 has been considered by the Additional Chief Secretary of the Home Department. We regret to inform you that your representation is rejected as the grounds raised therein are not acceptable to release you from preventive detention."
49. In this context it will be appropriate to note that Ext.R2(m) representation is the one dated 08.07.09 referred to in the order. It is not necessary for us to advert to the various other grounds urged therein. But we feel it proper to refer to 2 specific grounds that have been raised.
50. Firstly it is submitted that 2 cases relied on in the order of detention and the grounds for detention are non existent as they have already ended in acquittal long prior to Ext.R2(g) report of the sponsoring authority and Ext.P1 order of detention under Section 3(1). This, it appears to us, is a very W.P(Crl.) No.323 of 2009 40 crucial ground raised. The detenu was thereby pointing out to the Government the factual inaccuracy that has crept in. The sponsoring and detaining authorities had incorrectly and erroneously assumed that cases 1 and 5 were still pending; whereas one had ended in acquittal and the other had been closed accepting the plea of guilty. It has also been raised that the said case ie. case No.5 cannot be taken into consideration while considering the question of detention under Section 3. Both these contentions are factually correct. There is no contention for the respondent that case No.1 or 5 was pending on the date of the proposal of the sponsoring authority or on the date of the impugned order. There is no contention for the respondent that the 5th case ie. the prosecution under Section 160 I.P.C can be taken into account to decide whether a person is a known goonda or a known rowdy. Ext.P8 order which we have extracted above clearly, unmistakably and unambiguously shows that these 2 contentions have not at all been specifically considered by the Government before rejecting Ext.R2(m) representation. To us it appears that this plea - that patently erroneous factual details had crept into the order of detention, has not been considered by the Government when it passed W.P(Crl.) No.323 of 2009 41 Ext.P8 order. At least there is nothing to show that any other contention had been considered. A speaking order is not necessary and it may not be possible to insist that each such contention raised in Ext.R2(m) must have been considered and answered. But at any rate, consideration by the Government cannot be casual or mechanical. Real and proper consideration must be given to the representation. Otherwise it would result in deprivation of the valuable right of the detenu to make a representation to the Government and to request the Government to revoke or modify the order passed against him. As held in Bhut Nath Mete v. State of W.B, answers of the detenu in the representation [Ext.R2(m)] must have been considered impartially and such consideration must be self evident from the order.
51. We are unable to persuade ourselves to agree that Ext.P8 reveals such consideration which is insisted by the precedents referred above. The sure test for us to decide whether there has been proper consideration or not is the omission/failure to refer to the contention that cases 1 and 5 referred above should not have been taken into consideration. We agree with the learned counsel for the petitioner that the W.P(Crl.) No.323 of 2009 42 very same Ext.P8 order (with a change in the date of representation) can be used by the Government to reject the representation of any other detenu detained on any other ground. The language of Ext.P8 order clearly betrays that a real and proper consideration has not been given to the representation made by the detenu.
52. We must alertly remind ourselves that we are dealing with a petition for issue of a writ of habeas corpus filed on behalf of a detenu who has been detained and deprived of his freedom and liberty not for any specific contumacious act committed by him, but solely on the apprehension that he may, in future, judged by his past conduct, indulge in antisocial activities. The cause of liberty and freedom has always been fought with weapons which insist on procedural compliance. The insistence of procedural correctness has gone a long way to help the Court to protect the rights of citizens to freedom and liberty. We are unable to agree that the valuable right of the detenu, to have his representation considered, has been observed and respected by the Government in passing Ext.P8 order. On that last ground raised by the petitioner, the W.P(Crl.) No.323 of 2009 43 continued detention of the detenu deserves to be invalidated. The challenge on ground No.VI therefore succeeds.
53. Before parting with the case, we must impress upon the Government the need to ensure that orders of preventive detention do not suffer from technical or procedural inadequacies. The legislative anxiety to arm the executive with such draconian power to order preventive detention in the interest of societal safety and protection can be frustrated by such inadequate compliance with procedural safe guards. The Government must ensure that such inadequacies do not creep in at any stage to vitiate the order. The officials may be inexperienced and ill equipped to live upto the challenges in the new jurisdiction to order preventive detention available under the KAAPA. Adequate training for and strict insistence of procedural mandates from those wielding such power have to be insisted by the Government if legislative goals are to be fully achieved. The Government must ensure that every representation by the detenu under Article 22(5) of the Constitution and Section 7(2) of the KAAPA is disposed of after real and proper consideration as insisted by the precedents referred above.
W.P(Crl.) No.323 of 2009 44
54. In the result:
a) This Writ Petition is allowed;
b) The continued detention of the detenu is found to be invalid and unjustified;
c) If the detention of the detenu is not necessary in any other case, he shall forthwith be released from custody by the prison authorities;
d) The Registry shall forthwith communicate the order to the Superintendent of the Central Prison, Kannur forthwith.
(R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-