Kerala High Court
Aarifa Beevi vs State Of Kerala on 25 June, 2009
Bench: R.Basant, M.C.Hari Rani
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 198 of 2009()
1. AARIFA BEEVI, W/O.MOHAMMED SHAFI,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE DISTRICT COLLECTOR AND DISTRICT
3. THE SUPERINTENDENT OF POLICE,
For Petitioner :SRI.SIBY MATHEW
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :25/06/2009
O R D E R
R.BASANT & M.C.HARI RANI, JJ.
------------------------------------
W.P(Crl.) No.198 of 2009
-------------------------------------
Dated this the 25th day of June, 2009
JUDGMENT
BASANT, J.
When does the clock start ticking under Section 3(3) of the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred to as the `KAAPA') - on the date of the order of detention or the date of detention ?
(ii) How is the expression "forthwith" in Section 3(3) to be understood and reckoned ?
(iii) Is the detenu entitled to a copy of the report of the Advisory Board under Section 10(3) of the KAAPA ?
(iv) Can the absence of any previous conviction justify the claim to exclude a person from the sweep of the expression `known goonda' in Section 2(o) of the KAAPA ? These questions are raised in this Writ Petition.
2. In this petition for issue of a writ of habeas corpus, the petitioner, the mother of a detenu under the KAAPA, prays that her son the detenu may be directed to be produced before W.P(Crl.) No.198 of 2009 2 the Court and set at liberty after setting aside Ext.P4 order of detention issued under Section 3(2) of the KAAPA.
3. The petitioner's son was allegedly involved in 7 crimes referred to in Ext.P4 order. By Ext.P4 order dated 03.03.09 issued by the 2nd respondent, the detenu was ordered to be detained. The order of detention was executed on 09.03.09. The records were submitted to the Government under Section 3(3) of the KAAPA on 13.03.2009. The order of detention was approved by the Government as per Ext.P6 order dt.23.03.09 passed under Section 3(3) of the KAAPA. The detenu made a representation before the Advisory Board. The Advisory Board considered the same at its sitting on 05.05.09. Reference was answered by the Advisory Board by order dt.07.05.09. The same was communicated to the Government and the Government by Ext.P7 order dt.11.05.09 confirmed the order of detention for a period of 6 months.
4. Shri B.Premnath, the learned counsel for the petitioner contends that the detention of the detenu is in violation of the provisions of the KAAPA and in these circumstances the detention is liable to be set aside and the detenu is entitled to be set at liberty. 4 specific grounds are raised.
W.P(Crl.) No.198 of 2009 3
(i) The order of detention under Section 3(3) of the KAAPA is not approved by the Government within 12 days of the order of detention and this offends the mandate of Section 3(3) of the KA.
(ii) There is infraction of the provisions of Section 3(3) of the KAAPA inasmuch as there was delay on the part of the District Magistrate in forwarding the order of detention and connected records to the Government.
(iii) Copy of the report of the Advisory Board has not been furnished to the detenu and this offends the implied mandate of Section 10(3) of the KAAPA.
(iv) The detenu is not a known goonda answering the definition in Section 2(o) of the KAAPA inasmuch as there is no previous conviction against him.
5. We have heard the learned counsel for the petitioner as also the learned Additional Director General of Prosecutions. We shall now proceed to consider the 4 grounds raised. W.P(Crl.) No.198 of 2009 4 Ground No.1
6. The order of detention (Ext.P4) was passed on 03.03.09 admittedly. In execution of Ext.P4 order dt.03.03.09, the detenu was arrested at 12 noon on 09.03.09. The records were forwarded to the Government by the 2nd respondent/District Magistrate only on 13.03.09. The order of approval was passed on 23.03.09. On these factual aspects, there is no dispute. When does the clock start ticking under Section 3(3) of the KAAPA ? This is the crucial question. The order of approval under Ext.P6 was passed only on 23.03.09. If the clock starts ticking on the date of the order of detention (ie. 03.03.09), the approval under Ext.P6 on 23.03.09 is certainly beyond the period of time stipulated. But the learned Addl.D.G.P contends that the date of the order of detention is not crucial or vital and the date of detention is the crucial date to compute the period of 12 days under Section 3(3) of the KAAPA.
7. We are in ready agreement with the learned Addl.D.G.P. We extract below Section 3(3) of the KAAPA.
Section 3: Power to make orders for detaining Known Goondas and Known Rowdies:
(1) ......................................
(2) ......................................W.P(Crl.) No.198 of 2009 5
(3) When any order is made under this section by the authorised officer under sub-section (2), he shall forthwith report the fact to the Government and the Director Genderal of Police, Kerala, together with a copy of the order and supporting records which, in his opinion, have a bearing on the matter and no such order shall remain in force for more than 12 days, excluding public holidays, from the date of detention of such Known Goonda or Known Rowdy, unless, in the meantime, it has been approved by the Government or by the Secretary, Home Department if generally so authorised in this regard by the Government.
(emphasis supplied) It is very clear from the language of Section 3(3) of the KAAPA that the period of 12 days excluding public holidays must be calculated "from the date of detention" and not from the date of the order of detention.
8. Even though the detention was on 09.03.09 and the order of approval is dated 23.03.09, the same is found to be within 12 days excluding the public holidays. We take note of the fact that 14th, 15th and 22nd of March, 2009 were public holidays in the State of Kerala, not to speak of the fact that the date of detention 09.03.09 also happens to be a public holiday. Ground no.2
9. Yet another contention is raised under Section 3(3) of the KAAPA that the District Magistrate/authorised officer has not "forthwith" forwarded/reported the fact of detention to the W.P(Crl.) No.198 of 2009 6 Government. Admittedly the detention was on 09.03.09 and the report under Section 3(3) of the KAAPA was forwarded only on 13.03.09. The counsel argues that the expression `forthwith' in Section 3(3) is not elastic enough to accommodate the delay from 09.03.09 to 13.03.09. This gap of 4 days which was admittedly there in reporting detention to the Government must be held to violate the unambiguous mandate of Section 3(3), contends the counsel.
10. We are unable to agree that any particular number of days can be held to be crucial or vital while understanding the expression "forthwith" in Section 3 of the KAAPA. The purpose is obvious that after receipt of the report by the Government, order regarding approval under Section 3(3) of the KAAPA has to be passed within 12 days of the date of detention. That having been complied with in letter and spirit in this case, there can be no grievance that there has been a fatal delay in submission of the report under Section 3(3) of the KAAPA by the authorised officer to the Government. The statutory insistence on the District Magistrate forwarding the order of detention and records to the Government has a salutary purpose to achieve and that is grant of approval or refusal of approval by the Government within a period of 12 days. When that requirement W.P(Crl.) No.198 of 2009 7 is met, it would be a futile exercise to count the number of hours/days to decide whether the order of detention has been forwarded on the same day or on a later day. The expression "forthwith" undoubtedly means immediately and the District Magistrate must comply with the requirement strictly in letter and spirit. But while considering whether there is any fatal infraction justifying invalidation, the expression "forthwith" must receive a construction in tune with the purpose that such expeditious despatch must achieve. The arresting officer has to report to his superior and the information regarding detention must reach the District Magistrate who has thereafter to forward the order of detention and records to the Government under Section 3(3) of the KAAPA. The expression "forthwith" definitely must accommodate all these compulsions and circumstances. The challenge raised on ground No.2 must, in these circumstances, fail.
Ground No.3
11. Within 3 weeks of the date of detention the Government, under Section 9 of the KAAPA is obliged to make a reference to the Advisory Board. The Advisory Board is bound to answer the reference within 9 weeks from the date of detention. In the instant case the detention was on 09.03.09. The reference W.P(Crl.) No.198 of 2009 8 was within time, it is submitted and there is no dispute on that aspect. The Advisory Board submitted its report on 07.05.09 and the Government received the same and confirmed the detention under Section 10(4) of the KAAPA on 11.05.05. What then is the grievance ? The learned counsel for the petitioner contends that the detenu has a right to be served with a copy of the decision of the Advisory Board. That having not been done, the mandate of Section 10(3) of the KAAPA is violated, contends the counsel.
12. We are unable to agree. There is nothing in the KAAPA to suggest that the detenu is entitled to receive a copy of the report of the Advisory Board. The Government makes a reference to the Advisory Board and the decision of the Advisory Board is to be conveyed to the Government. No specific provision is available in the statute nor can it be contended that by necessary inference the detenu is entitled to get a copy of the order passed by the Advisory Board on reference. The language of Section 10 (3) of the KAAPA makes the position clear. We extract Section 10(1) and (3) of the KAAPA below:
"Section 10: Procedure of Advisory Board and further action:
(1) The Advisory Board to which a reference is made under the above section shall after considering the reference and the materials placed before it and after calling for such further information as it may W.P(Crl.) No.198 of 2009 9 deem necessary from the Government or from any person called for the purpose through the Government, or from the person concerned and if, in any particular case, it considers necessary so to do or if the person concerned desires to be heard in person, after hearing him in person, prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within nine weeks from the date of detention of the person concerned.
(2) .......................
(3) A person against whom, an order of detention has been made under this Act shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board, and the proceedings of the Advisory Board and its report, except that part of the report in which the opinion of the Advisory Board is specified, shall be confidential:
Provided that the Board has power to permit legal practitioners in the cases deemed fit."
(emphasis supplied) It is obvious that the Advisory Board has to submit its recommendation to the Government and thereupon under Section 10(4) of the KAAPA it is for the Government to pass the order. That order has been passed and a copy thereof is Ext.P7.
In Ext.P7, it has clearly been communicated that the Advisory Board has recommended continued detention of the detenu.W.P(Crl.) No.198 of 2009 10
13. The language of Section 10(3) of the KAAPA makes it clear that the report of the Advisory Board shall be confidential. Of course there is an exception and that is "except that part of the report in which the opinion of the Advisory Board is specified". There can be no contention that the detenu is entitled for a copy of the decision of the Advisory Board. That is expressly declared to be confidential. That part of the report in which the opinion of the Advisory Board is specified is not confidential. That part has been communicated in Ext.P7 order, though no copy of the separate paragraph in which the opinion is given has been furnished. There is no express or implied obligation under the statute to furnish copy of the non confidential part of the Advisory Board's report to the detenu. Decision has been conveyed also. In these circumstances, we find no merit in the challenge raised on this ground. Ground No.4
14. The counsel contends that the detenu having not been convicted in any case earlier, he does not fall within the sweep of the definition of `known goonda' in Section 2(o) of the KAAPA. A reading of Section 2(o)(ii) of the KAAPA which we extract below shows clearly that conviction is not essential and a finding in any investigation by a competent police officer in 2 separate W.P(Crl.) No.198 of 2009 11 instances that the detenu has committed the offences is sufficient to bring him within the sweep of the expression `known goonda'. We extract Section 2(o).
Section 2(o):"known goonda" means a goonda who had been, for acts done within the previous seven years as calculated from the date of the order imposing any restriction nor detention under this Act,-
(i) found guilty by a competent court or authority at least once for an offence within the meaning of the term `goonda' as defined in clause (j) of section 2; or
(ii) found in any investigation or enquiry by a competent police officer, authority or competent court on complaints initiated by persons other than police officers, in two separate instances not forming part of the same transaction, to have committed any act within the meaning of the term `goonda' as defined in clause (j) of Section 2;
(Proviso and explanation omitted as irrelevant in the context.) (emphasis supplied) If there is a previous conviction, clause (i) of Section 2(o) will be attracted. Even when there is no conviction at all, clause (ii) applies with equal force. That there has been no previous conviction is therefore no defence in a case of preventive detention when the detenu falls within the sweep of clause (ii) of Section 2(o) of the KAAPA. KAAPA deals with preventive detention. Societal interests and the need for protection of the W.P(Crl.) No.198 of 2009 12 rights of the vast silent majority have prompted and persuaded the legislature to tolerate the vice of preventive detention. Civilized society can accept the concept of preventive detention only as a necessary evil to prevent abuse of freedom by a few to the detriment of society. The legislature in its wisdom has conceded to the Government/detaining authority the jurisdiction to invoke Section 3 only against known rowdies and known goondas as defined under Section 2(p) and 2(o) of the KAAPA. The threshold requirement must be objectively satisfied. Only thereafter can the question of subjective satisfaction - of the need to detain the detenu, be considered. But while defining a known rowdy and known goonda, the legislature did not choose to insist on previous conviction invariably. It appears that the legislature did not advisedly choose to insist on previous conviction. The satisfaction of the investigating official that offence has been committed were held to be sufficient to attract clause (ii) of Section 2(o) and 2(p). But by way of abundant caution it was insisted that one instance is not sufficient and at least 2 instances of such satisfaction must be there in Section 2
(o) (known goonda) and three in Section 2(p) (known rowdy). There is no challenge against the constitutionality of the statute raised before us. In the light of the clear stipulations in Section W.P(Crl.) No.198 of 2009 13 2(o), the fact that there has been no previous conviction must be held to be irrelevant.
15. No other contentions are raised. We are satisfied that the challenge must, in these circumstances, fail.
16. This Writ Petition is accordingly dismissed.
(R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-