Kerala High Court
Jameela vs State Of Kerala on 21 November, 2007
Bench: P.R.Raman, V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl) No. 232 of 2007(S)
1. JAMEELA, D/O ABDUL MAJEED,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE SECRETARY TO THE GOVERNMENT,
3. THE DISTRICT MAGISTRATE(DISTRICT
4. THE SUPERINTENDENT,
For Petitioner :SRI.BABU S. NAIR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice V.K.MOHANAN
Dated :21/11/2007
O R D E R
P.R.RAMAN & V.K.MOHANAN, JJ. (C.R.)
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W.P (Crl).No. 232 of 2007 - S
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Dated this the 21st day of November, 2007
J U D G M E N T
Mohanan,J:
This writ petition is filed by one Smt.Jameela who claimed to be the first cousin of one Mr.Basheer, who is detained under the provisions of the Kerala Anti-Social Activities (Prevention) Ordinance, 2007 (hereinafter referred to for short as 'KAAPO, 2007') with a prayer to issue a writ of habeas corpus to produce the detenu Sri.Basheer before this Court and to release him forthwith. It is also prayed inter alia to call for the records leading to Ext.P1 and to quash the same by issuance of a writ of certiorari or any other appropriate writ, order or direction.
2. In the writ petition, it is claimed that the petitioner has chosen to prefer this writ petition as her cousin, the detenu is unable to approach this Court as he is detained and thus this petition is being filed by the petitioner as the next friend of the detenu. According to the averments contained in the writ petition, the detention WP(Crl) NO. 232 of 2007 :-2-:
of Mr.Basheer as per Ext.P1, which is an order issued by the third respondent in exercise of her powers under Section 3 of KAAPO, 2007, is illegal since on the date of issuance of Ext.P1 and at the time of his arrest pursuant to Ext.P1, the detenu was in the judicial custody in connection with some criminal cases in the Sub Jail, Manjeri. It is also stated that at the time of passing Ext.P1 order, the detenu was already in custody connected with certain criminal cases in which investigation was going on and with respect to certain other criminal cases, final report has already been filed and the petitioner was granted bail by the concerned Magistrate Court. Along with the writ petition, the petitioner has produced Ext.P2, which is a representation dated 24.9.2007 filed by the detenu before the Chairman, Advisory Board and according to the petitioner, the Advisory Board has not passed any order therein in exercise of the powers under Section 7 (1) of the KAAPO, 2007. In the said representation, WP(Crl) NO. 232 of 2007 :-3-:
several grounds were urged in support of the plea against Ext.P1 detention order. According to the petitioner, Ext.P1 was issued in total non-application of mind by the third respondent and no document was supplied to the detenu by the third respondent. It is also stated therein that there is no nexus between the alleged incidents and Ext.P1 detention order. It is also contended therein that the denial of supplying of documents will amount to denial of right of the detenu to make effective representation as provided under Article 22(5) of the Constitution of India. It is also urged therein that the order of detention is actuated by mala fides and there is no independent consideration of the materials by the detaining authority other than what was reported by the sponsoring authority. According to the petitioner, it is specifically urged that the detaining authority has not stated as to what is the imminent danger for the public peace and tranquility if the detenu is loomed at large. Thus, according to the petitioner, WP(Crl) NO. 232 of 2007 :-4-:
several legal issues are raised through the above representation and those issues are directly concerned with the application of various provisions contained in the Constitution of India so as to ensure the fundamental right of the detenu as a citizen of India. But, according to the petitioner, even Ext.P2 has not been considered by the Advisory Board which is an authority constituted as per the provisions of the KAAPO, 2007 and therefore the continued detention will amount to gross violation of the rights conferred by the provisions of the Constitution of India. In support of the fervent plea to quash Ext.P1 detention order, the petitioner has raised several legal and factual grounds. It is stated that Ext.P1 detention order is passed with total non-application of mind and the same is vitiated due to the violation of procedural safeguards given under Article 22(5) of the Constitution of India.
WP(Crl) NO. 232 of 2007 :-5-:
3. It is stated in the writ petition on the strength of the decision in Rajesh Vashdev Adnani v. State of Maharashtra and others (2005(8) SCC 390), that the detaining authority has issued the order in a mechanical way without application of mind which is evidenced by Ext.P1 itself since the same contained only the verbatim reproduction of what stated in the report of the Superintendent of Police. According to the petitioner, due to the failure of application of mind, though references have been made regarding certain cases registered as early as in 2004, nothing is stated regarding the subjective satisfaction of the third respondent to show the necessity for the detention of the detenue. Therefore, Ext.P1 is liable to be set aside.
4. Relying on the decision reported in Radhakrishnan Prahakaran v. State of Tamil Nadu and others (2000(9) SCC 170), it is alleged that because of the non-supply of necessary documents pertaining to the WP(Crl) NO. 232 of 2007 :-6-:
grounds stated in the order, the detenu was denied the right to make a representation as provided under Section 7(1) of the KAAPO, 2007. Consequently, the non-supply of documents will amount to violation of the provisions contained in Article 22(5) of the Constitution of India.
5. In support of the above contentions, the petitioner very much relied upon the decisions of the apex Court reported in Nandoli Muhammed Rafeeque v. Union of India and others (2004(12) SCC 218), Sofia Gulam Muhammed Bhan v. State of Maharashtra and others (AIR 1999 SC 3051), Ramla v. State of Kerala (2000(3) KLT S.N.47) and State of Tamil Nadu v. Senthil Kumar and another (AIR 1999 SC 971). It is also contended that the preventive detention under any statute is a preventive measure and the same is not a punitive one. Therefore, according to the petitioner, while exercising the powers of issuing an order of WP(Crl) NO. 232 of 2007 :-7-:
preventive detention, the executive authority has to independently consider the imminent danger in case the individual is not detained. According to the petitioner, no power is given to the authority to punish a person without trial. It is stated in the writ petition that while Ext.P1 detention order was passed, the detenu is already in judicial custody in connection with certain cases wherein investigations are pending. The above aspect was not brought to the notice of the detaining authority by the Police and according to the petitioner, that reason itself is sufficient to show that the detaining authority has issued the order without application of mind. Based upon the fact that the detenu was already in custody while issuing Ext.P1 order, it is contented that the detenu was totally prevented from indulging in any detrimental activities and the detaining authority has not considered as to whether the detenu is likely to be released on bail or if the detenu is released on bail, is it likely that he will indulge in the activities detrimental WP(Crl) NO. 232 of 2007 :-8-:
to the public peace and tranquility. Therefore, according to the petitioner, Ext.P1 order is liable to be quashed for non-consideration of the above aspect alone. It is also urged that in three cases, the Police has filed final reports and in those cases, the detenu has been granted bail with conditions. Those bail orders were not placed before the detaining authority and consequently, the detaining authority has miserably failed to peruse the orders passed by the concerned court in those bail applications filed by the detenu and therefore, the order of detention is unsustainable and bad in law. It is also stated that the detenu will not come under the definition of 'Known Rowdy' as defined under Section 2(p) of the KAAPO, 2007 and the detenu will not come within sub- clauses (i) to (iii) of Section 2(p). It is also urged that Sections 2(t)(i) and 2(t)(ii) are not attracted and therefore, the order of detention is absolutely illegal and arbitrary. Ext.P1 order is silent as to how the detaining authority came into her subjective satisfaction for WP(Crl) NO. 232 of 2007 :-9-:
making an order in exercise of the powers under Section 3(1) of the KAAPO, 2007. Thus, according to the petitioner, Ext.P1 is liable to be set aside and consequently, the detenu is entitled to get released from the illegal confinement.
6. Denying the allegations and averments contained in the above writ petition and resisting the prayer, the third respondent has filed a detailed counter affidavit. In the counter affidavit, it is stated that the third respondent has received credible information from the Superintendent of Police, Malappuram vide No.G1/3/KAAPO/2007/MM dated 29.08.2007 with regard to the activities of the detenu. In the counter affidavit, it is stated that the report so received contained information about the involvement of the detenu in seven criminal cases registered in various police stations. The counter affidavit filed on behalf of the third respondent discloses that the detenu has been charge sheeted before the Judicial First Class WP(Crl) NO. 232 of 2007 :-10-:
Magistrate Court, Perinthalmanna in Crime No.417 of 2006 of the Perinthalmanna Police Station for the offence under Section 379 of the Indian Penal code which is a crime registered on the basis of the complaint filed on 26.06.2006 by one Smt.K.M.Suja, the defacto complainant therein. It is also stated in the counter affidavit that after conducting investigation in Crime No.549 of 2006 of Perinthalmanna Police Station for the offence under Section 379 of the I.P.C. on the basis of the complaint on 11.8.2006 by one Sri.Gafoor, the Police has filed final report before the Judicial First Class Magistrate Court, Perinthalmanna. Crime No.620 of 2006 is another crime registered in the Perinthalmanna Police Station for the offences under Sections 379 and 201 of the I.P.C. on the basis of the complaint filed on 12.9.2006 by one Sri.Abdul Rafeeq and in that case also, after investigation, a final report has been filed in the very same Magistrate's Court. Thus, in the above mentioned three criminal cases, the WP(Crl) NO. 232 of 2007 :-11-:
Police has already filed the final report after investigation. Besides the above, the detenu is also the accused in Crime No.92 of 2007 of Areacode Police Station under Section 379 I.P.C., Crime No.73 of 2007 of Edavanna Police Station under Section 379 I.P.C., Crime No.202 of 2007 of Ottappalam Police Station under Section 411(d), 102 Cr.P.C. and Crime No.65 of 2007 of Kondotty Police Station under Section 379 I.P.C. According to the third respondent, on examination and evaluation of the above report of the Superintendent of Police with reference to the connected records, she was satisfied that Sri.Basheer, the detenu comes within the definition of 'Known Rowdy' under Section 2(p) of KAAPO, 2007 and it does not come within any of the categories exempted under the proviso to Section 2(p) of the said ordinance. According to the third respondent, she was also satisfied that if the said Basheer remains at large, he would indulge in anti-social activities, detrimental to the maintenance of peace, safety of life WP(Crl) NO. 232 of 2007 :-12-:
and property of the public and public order in the localities in which he indulges in anti-social activities. Thus, on her satisfaction, by exercising powers conferred on her under sub-sections (1) and (2) of Section 3 of KAAPO, 2007, she had issued Ext.P1 order detaining the said Basheer for a period of six months at Viyyur Central Jail, Thrissur from the date of detention. According to the third respondent, memo for execution of the said order of detention was issued on the same day with a specific direction to comply with all the procedures prescribed for effecting the arrest. Accordingly, the detenu was formally arrested by the Sub Inspector of Police, Pandikkad at 5 p.m. on 13.9.2007 from the Manjeri Sub Jail in the presence of Jail Wardens and the fact of the arrest was intimated to the brother of the detenu namely, Sri.Anwar on the date of arrest itself, by obtaining his written admission of the receipt of the said information. It is also stated in the counter affidavit that at the time of the arrest, the WP(Crl) NO. 232 of 2007 :-13-:
officer, who effected the arrest of Sri.Basheer, had read over to him the order of detention and the grounds of arrest and the following documents namely, order of detention, grounds of detention in Malayalam and the supporting materials were furnished to the detenu with proper acknowledgment. It is further stated in the counter affidavit that the detenu was further informed in writing of his right to make representation before the Government and before the Advisory Board, against his arrest and detention for which also the acknowledgment was obtained from the detenu. Thus, the detenu was taken to the Central Prison, Viyyur on 13.9.2007 itself and admitted there at 8.45 p.m. The counter affidavit further disclosed that in the Jail Admission Authorisation given to the Superintendent of Central Prison, Viyyur, he was specifically directed that the detenu should be offered every opportunity to consult his lawyers and give a reasonable assistance in making representations against the detention order to the Government and the WP(Crl) NO. 232 of 2007 :-14-:
Advisory Board as required under Section 7(2) of the Ordinance. It is also stated that those facts were reported to the Additional Chief Secretary to Government, Home (SSA) Department and Director General of Police, Kerala together with a copy of the order and supporting materials on 7.9.2007. Consequently, the detention of Sri.Basheer was confirmed by the second respondent as per the confirmation order No.61486/SSA 5/2007/Home dated 19.9.2007.
7. In the counter affidavit, the third respondent has specifically denied almost all the factual averments contained in the writ petition. In para 10 of the counter affidavit, it is stated that the detenu was formally arrested from the Manjeri Sub Jail only on 13.9.2007 at 5 p.m and not on 7.9.2007 as alleged by the petitioner and the detenu was taken to Central Prison, Viyyur and detained there at 8.45 p.m. on 13.9.2007 itself. In answer to the averments contained in para 6 of the writ WP(Crl) NO. 232 of 2007 :-15-:
petition, the third respondent has stated that information given by the Superintendent of Police was one coming within the purview of sub-section (1) of Section 3 of the KAAPO,2007 and the said information was accompanied by the relevant records necessary for substantiating the same. Thus, according to the third respondent, on examination of the said information with reference to the connected records, she was satisfied that the detenu would come within the definition of 'Known Rowdy' as he was currently involved in anti- social activities for issue of order of detention and thus, Ext.P1 order is perfectly valid and legal. While resisting the ground (A) of the writ petition, the third respondent has reiterated the above contention and submits that she had, after thorough examination and evaluation of the report received from the Superintendent of Police and after application of mind, come to the subjective satisfaction and accordingly, issued Ext.P1 order. Regarding the averments in Ground (B), It is stated that WP(Crl) NO. 232 of 2007 :-16-:
on the basis of the information furnished by the Superintendent of Police and on its examination, the third respondent is satisfied that the detenu will come within the purview of section 2(p) and he is a 'Known Rowdy' and she further arrived into a conclusion that his detention is essential to prevent him from indulging in anti-social activities and to ensure public peace and protection of life and property of the people in the locality and according to the third respondent, the allegation raised by the petitioner that the order of detention is issued without application of mind is absolutely incorrect. Controverting the contention raised in ground(C), the third respondent has stated that at the time of arrest in addition to the order of detention, the detenu was served grounds for detention (in Malayalam) and the supporting documents coming about 60 pages and in all those pages, the detenu has recorded his acknowledgment by affixing his signature showing the date and time of the receipt. WP(Crl) NO. 232 of 2007 :-17-:
8. In para 15 of the counter affidavit, regarding the averments contained in ground (E) in the writ petition, it is stated that the allegation that the sponsoring authority has not brought to the notice of the third respondent that the detenu was already in judicial custody is not correct. It is also stated that, the fact that the detenue was already in judicial custody, was brought to the notice of the third respondent by the sponsoring authority, specifically pointing out the possibility of the release of the detenu from the Sub Jail at any moment which is likely to endanger public peace and tranquility.
It is also stated that the third respondent was also informed by the sponsoring authority that the detenue is active and would involve in anti-social activities prejudicial to the maintenance of public order, as and when he is released from jail. It is specifically stated that copy of this information was also supplied to the detenu at the time of arrest and his acknowledgment was obtained for the receipt of the same. The third WP(Crl) NO. 232 of 2007 :-18-:
respondent has further stated that the detenu was charge sheeted in three cases after investigation by competent officers on the basis of the complaints initiated by the private parties in separate instances which do not form part of the same transaction for offences under Section 379 of I.P.C.which comes within the purview of Chapter XVII of the Indian Penal code as mentioned in Section 2(t) of the KAAPO,2007. Thus, denying all contra allegations and contentions, the third respondent states that she has found that the detenu is a 'Known Rowdy' as defined in Section 2(p) of the Ordinance and will not fall within any of the categories exempted under the proviso to Section 2(p) of the said ordinance and she was further satisfied that the detenu was currently involving in anti-social activities and that if he remains at large, he would indulge in anti-social activities detrimental to the maintenance of peace, safety of life and property of public and public order in the localities which he indulges in anti-social activities. WP(Crl) NO. 232 of 2007 :-19-:
Thus, according to the third respondent, Ext.P1 order of detention is perfectly legal and valid and therefore, the writ petition is liable to be dismissed.
9. We have heard Sri.Babu.S.Nair, learned counsel appearing for the petitioner and Sri.K.K.Raveendranath, the learned Special Government Pleader and the Liaison Officer.
10. During the course of argument, counsel for the petitioner has fairly submitted that though the petitioner has advanced several contentions and allegations, he is confining only to ground (F). Ground (F) says:-
"F. It is submitted that since the detenue, at the time of passing the detention order, was already in custody, and therefore, he was totally prevented from indulging any detrimental activities, the detaining authority has to necessarily consider as to whether the detenue is likely to be released on bail, or that if the detenue is released on bail, it is likely that he will indulge in the activities detrimental to the public peace and tranquility. This aspect has not been WP(Crl) NO. 232 of 2007 :-20-:
considered by the detaining authority while passing the detention order, which alone vitiates the order of detention."
According to the counsel, it is an undisputed fact that while issuing Ext.P1 order and making the arrest in pursuance of Ext.P1 order, the detenu was already in custody. Therefore, according to the counsel, the detenu was totally prevented from indulging in any anti- social activities. Hence, it is for the detaining authorities necessarily to consider whether the detention order is necessary at that stage. If the detaining authority after consideration of such situation is of positive opinion, they have to state the reasons, how the detenu is likely to indulge in anti-social activities. Therefore, certainly the authority has to answer the self mooted questions as to whether the detenu is likely to be released on bail, whether any application for bail is pending and if there is any likelihood of releasing the detenu on such bail application, or if he is so released, WP(Crl) NO. 232 of 2007 :-21-:
is it likely to indulge in anti-social activities which are detrimental to the public order and peace. According to counsel for the petitioner, unless and until the authorities are able to show that they have applied their minds to such questions and had given their answers to such questions, it cannot be said that the authorities have applied their minds. The counsel further pointed out that on a perusal of Ext.P1, there is nothing discernible to show that the authorities have applied their mind on such crucial questions. According to the counsel, on evaluation of these aspects and on appreciation, if the outcome is against the authorities, Ext.P1 order is liable to be set aside and the detenu is entitled to get release from the confinement. We find some force in the above submission of learned counsel for the petitioner.
11. We have anxiously scrutinised Ext.P1 order to see that any of such questions are mooted and any conclusion is arrived at on such questions. Going by WP(Crl) NO. 232 of 2007 :-22-:
Ext.P1 order, we failed to note anything about the detenu as to whether he is on bail in any of the cases mentioned in the order, whether he is under custody either judicial or police, connected with any of the cases or any bail application pending before any court connected with any crimes mentioned therein and the stage of the bail applications, if any and whether there is any likelihood of passing an order in favour of the detenu on such petition.
12. At this juncture, it is relevant to note that the factum of arrest of the detenu from the Sub Jail, Manjeri is disclosed by the respondents for the first time only when the third respondent filed her counter affidavit.
What else required to show the non-application of mind?
13. Relying upon the decision reported in Jai Singh and others v. State of Jammu and Kashmir (1985 SCC(Cri) 125), it is submitted by the learned counsel for the petitioner that the detenu is entitled to get released WP(Crl) NO. 232 of 2007 :-23-:
forthwith as Ext.P1 order does not disclose anything that the third respondent was aware of the fact that the detenu was already in custody in connection with the criminal cases. In the above decision, the apex court had held as follows:-
".........In fact we are unable to find anything in the records produced before us, either the police dossier submitted to the the District magistrate for action or in any other document forming part of the record that the District Magistrate was aware that the petitioner was already in custody. There is nothing to indicate that the District Magistrate applied his mind to the question whether an order of detention under the Jammu & Kashmir Safety act was necessary despite the fact that the petitioner was already in custody in connection with the criminal case. The cases of the other six petitioners are identical and in the circumstances, we have no option, but to direct their release forthwith, unless they are wanted in connection with some other case or cases."
(emphasis supplied) WP(Crl) NO. 232 of 2007 :-24-:
The factual situation in this case also is not different from the case mentioned above.
14. The learned counsel for the petitioner has brought to our notice another decision of the apex court reported in Rivadeneyta Ricardo Agustin v. Government of the National Capital Territory of Delhi and Others (1994 SCC (Cri) 354). For appreciation of the legal position involved in the case on hand, a comparison of factual situation in the above reported case is necessary which contains in para 7 of the above decision which says as follows:-
"7. In the grounds of detention, the following statement occurs in para 9:
"The Administrator of the National Capital Territory of Delhi is aware that you are in judicial custody and had not moved any bail application in the Court (s) after June 9, 1992 but nothing prevents you from moving bail applications and possibility of your release on bail cannot be ruled out in the near future. Keeping in view your modus operandi to smuggle gold into India and frequent visits to India, the WP(Crl) NO. 232 of 2007 :-25-:
Administrator of the National Capital Territory of Delhi is satisfied that unless prevented you will continue to engage yourself in prejudicial activities once your are released."
In para 8 of the above decision, the apex court had held as follows:-
"8. The above statement merely speaks of a "possibility" of the detenu's release in case he moves a bail petition. It neither says that such release was likely or that it was imminent. Evidently, the statement falls short of the requirement enunciated by this Court in Kamarunnissa (1991) 1 SCC 128: 1991 SCC (Cri) 88. Even in the return filed in this petition, the authority has not stated (in response to Ground 'B' of the writ petition) that there was material before him upon which he was satisfied that the petitioner was likely to be released or that such release was imminent. In Ground 'B' of the writ petition, the petitioner had alleged:
"[T]hat the respondent knew perfectly well that a complaint has already been filed in Court WP(Crl) NO. 232 of 2007 :-26-:
against the petitioner. He also knew that his two applications for bail were rejected by the Court. Between June and August, the petitioner had made no attempt whatsoever to secure any bail either from the trial court or from any superior court. Without any application of mind to this aspect of the matter, the respondent acted perversely in coming to the conclusion that the petitioner was ever likely to indulge in any offence of smuggling, to prevent which the respondent found it necessary to pass the order Annexure'A' hereto."
In the present case, as pointed out earlier, Ext.P1 order does not say anything about such crucial aspect with respect to the detenu. In the case mentioned above, the apex court had observed that the above statement merely speaks of a "possibility" of the detenu's release in case he moves a bail petition. It neither says that such release was likely or that it was imminent. Evidently, the statement falls short of the requirement WP(Crl) NO. 232 of 2007 :-27-:
enunciated by this Court reported in Kamarunnissa v. Union of India (1991 SCC (Cri) 88). Finally, in the above decision, the apex court was pleased to quash the detention order and further ordered that the detenu, if in custody, should be released forthwith if he was not required in any other case or if he was not being detained under an order of competent court.
15. Another decision in Dharmendra Suganchand Chelawat & Suganchand Kanhaiyyalal Chelawat v. Union of India and others (1990 SCC(Cri) 249) has been brought to our consideration of which para 21 is relevant which reads as follows:-
"21. The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention WP(Crl) NO. 232 of 2007 :-28-:
despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."
On an examination of Ext.P1 detention order in the light of the above guidelines, we are satisfied that the third respondent has miserably failed to apply her mind in arrival of her subjective satisfaction for the detention of the detenu in terms of the provisions contained in the KAAPO, 2007. In another judgment reported in Kamarunnisa's case (cited supra), the apex court had held as follows:-
"13. From the catena of decisions referred to above it seems clear to us that WP(Crl) NO. 232 of 2007 :-29-:
even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable materials placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher court. What this Court stated in the case of Ramesh Yadav (1985) 4 SCC 232:1985 SCC (Cri) 514 was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention.
This seems to be quite clear from the case law discussed above and there is no need to WP(Crl) NO. 232 of 2007 :-30-:
refer to the High Court decisions to which our attention was drawn since they do not hold otherwise. We, therefore, find it difficult to accept the contention of the counsel for the petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the detenus were in custody."
In the above decision, the apex court had already referred and placed reliance on another decision Rivadeneyta Ricardo Agustin's case (cited supra). On the strength of the above authorities, the learned counsel for the petitioner submits that Ext.P1 order is liable to be quashed and the detenu is entitled to get release forthwith.
16. Per contra, Mr.K.K.Raveendra Nath, the Special Government Pleader and the Liaison Officer submits that in the present case, the Superintendent of Police has already made available all the details including the fact that the detenu was in custody connected with the criminal cases, which were already WP(Crl) NO. 232 of 2007 :-31-:
brought to the notice of the third respondent and the third respondent has passed Ext.P1 order after appreciating the above fact and on her application of mind to such situation. The above submission was made when it was pointed out that the decision reported in Jai Singh's case (cited supra) has no application in the present case, since in that case, the sponsoring authority did not bring to the notice of the detaining authority regarding the fact that the detenue therein was already in custody. It is true that in the present case, the sponsoring authority has already brought to the notice of the detaining authority that the detenue has involved in several cases out of which in three cases, final report has been filed and in the remaining cases, investigations were pending.
17. The learned Liaison Officer placed reliance on a decision reported in Smt.Poonam Lata v. M.L.Wadhawan and another (AIR 1987 SC 2098). In para 9 of the above WP(Crl) NO. 232 of 2007 :-32-:
decision, the apex court held as follows:-
"9. It is thus clear that the fact that the detenu is already in detention does not take away the jurisdiction of the detaining authority in making an order of preventive detention. What is necessary in a case of that type is to satisfy the court when detention is challenged on that ground that the detaining authority was aware of the fact that the detenu was already in custody and yet he was subjectively satisfied that his order of detention became necessary. In the facts of the present case, there is sufficient material to show that the detaining authority was aware of the fact that the petitioner was in custody when the order was made, yet he was satisfied that his preventive detention was necessary. We do not think there is any force in this contention of Mr.Garg. Since both the contentions canvassed are rejected, the writ petition is dismissed."
It is true, in the present case, the fact that the detenu was in custody at the time of issuance of Ext.P1 order was brought to the notice of the detaining authority, but Ext.P1 does not reflect consideration of that aspect so that in the factual situation, we find that no application for bail was filed by the accused who is the alleged WP(Crl) NO. 232 of 2007 :-33-:
detenu in the said case and hence, the likelihood of his being released or not is certainly a matter which should have been specifically adverted to by the detaining authority so as to impress upon the court. This is also an aspect which has to be considered by the detaining authority at the time of passing the order of detention. In the above decision, it is not clear whether the Supreme Court has considered any question related to the granting of bail etc. as in the case of Rivadeneyta Ricardo Agustin's case (cited supra). Therefore, the said decision is not helpful to sustain Ext.P1 detention order passed against the detenu.
18. Placing reliance on the decision in Bal Chand Bansal v. Union of India and others (AIR 1988 SC 1175), Mr.K.K.Raveendranath submits that Ext.P1 order of detention is legal and valid since the detaining authority was conscious of the fact that the detenu was in judicial custody as in the case cited above. Going by the above WP(Crl) NO. 232 of 2007 :-34-:
decision, it can be seen that there, apart from the awareness of the fact that the detenu was in custody, the detaining authority was also aware and was apprehensive that the detenu would be released on bail. But in the present case, there is no report to that effect that the detenu herein is likely to be released on bail within a short time and there is no recital in Ext.P1 order that the detenu is likely to be released on bail and any move on the part of the detenu in that direction and in case of such release, he is likely to involve in the anti-social activities. Therefore, the above decision relied on by the Liaison Officer is not applicable to the facts and circumstances involved in the case at hand. The personal liberty of every citizen of India is protected by the fundamental rights conferred on them as per the provisions of the Constitution of India. Article 14 envisages that the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India. The above rights are WP(Crl) NO. 232 of 2007 :-35-:
further ensured and more protected under Article 22 in case of arrest and detention in certain cases. The various provisions contained under Article 22 are designed so as to protect the personal liberty of the subject on certain contingencies. In other words, though power of arrest and detention in certain cases are given to the State,as a safeguard, certain provisions are incorporated and when there is violation of such safeguard, it would amount to nothing, but violation of fundamental right conferred on the subject as per various provisions of the constitution.
19. Article 22(1) of the Constitution of India says as follows:-
"22. Protection against arrest and detention in certain cases.-- (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. "
WP(Crl) NO. 232 of 2007 :-36-:
In the decision in Narendra Purushotam Umrao v. B.B.Gujral (1979 SCC (Cri) 557), the apex court had observed that when the liberty of the subject was involved, whether it was under the Preventive Detention Act or the Maintenance of Internal Security Act or the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act or any other law providing for preventive detention, it is the bounden duty of the court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and that the subject is not deprived of his personal liberty, otherwise than in accordance with law. Though as per KAAPO, 2007, the authorities are conferred with the power of detaining persons on satisfaction of the conditions enumerated therein, such powers cannot be exercised in contravention of the safeguards provided under Article 22(5) of the Constitution of India. The authorities, while exercising the powers and curtailing the liberty of the WP(Crl) NO. 232 of 2007 :-37-:
persons, shall very cautiously and only on their full subjective satisfaction, pass such detention orders. Therefore, it is incumbent upon the authorities concerned to apply their mind in the given facts and circumstances of the case and to draw their subjective satisfaction. In the present case, now it is admitted that when Ext.P1 order was issued and when the detenu was arrested pursuant to such orders, he was already in judicial custody. The questions as to whether the detenu had filed any application for bail and whether such application is likely to be allowed are matters which the detaining authority had no occasion to refer to, so as to form an opinion whether he should be kept under preventive detention so as to prevent him from indulging in anti-social activities in case he is enlarged on bail. In the absence of such materials so as to indicate the application of mind by the detaining authority, we have no hesitation to hold that the third respondent has miserably failed to apply her mind while WP(Crl) NO. 232 of 2007 :-38-:
issuing Ext.P1 order. Therefore, Ext.P1 order is issued in violation of the salutary principles and safeguards contained in Article 22 of the Constitution of India. Accordingly, we quash Ext.P1 order of detention issued by the third respondent on the basis of which the detenu is arrested and detained.
20. It is pertinent to note that while issuing Ext.P1 order, though the third respondent has miserably failed to apply her mind to arrive into a subjective satisfaction in terms of the provisions contained in the KAAPO, 2007, we cannot ignore the nature of anti-social activities in which the detenu is involved. The detenu is involved in several cases similar in nature, in which valuable properties of at least the complainants in each case are involved. Though in certain cases, the detenu has already got bail, the investigation is going on in more than four cases. Therefore, even though we are quashing Ext.P1 detention order, it is clarified that in case the detenu is released from custody in the aforesaid WP(Crl) NO. 232 of 2007 :-39-:
criminal proceedings, the question of his preventive detention under the KAAPO,2007 on the above materials may be reconsidered by the appropriate authority in accordance with law and this decision shall not be construed as an impediment for that purpose.
21. In the result, this writ petition is allowed quashing Ext.P1 detention order, but subject to the above observation. The detenu is ordered to be released provided he is not required to be detained in custody in connection with any other case.
P.R.RAMAN,
Judge
V.K.MOHANAN,
Mbs/ Judge
WP(Crl) NO. 232 of 2007
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V.K.MOHANAN, J.
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O.P.NO. OF 2001
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J U D G M E N T WP(Crl) NO. 232 of 2007 :-41-:
DATED: -0-2007 WP(Crl) NO. 232 of 2007 :-42-: