Kerala High Court
Sailaja vs State Of Kerala on 4 January, 2010
Bench: R.Basant, M.C.Hari Rani
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 429 of 2009(S)
1. SAILAJA,W/O.BHASKARAN,AGED 54 YEARS,
... Petitioner
Vs
1. STATE OF KERALA,REP.BY ADDL.CHIEF
... Respondent
2. THE DISTRICT COLLECTOR AND DISTRICT
3. DEPUTY COMMISSIONER OF POLICE(L&O),
For Petitioner :SRI.M.RAJAGOPALAN NAIR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :04/01/2010
O R D E R
R. BASANT &
M.C. HARI RANI, JJ.
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W.P.(Cri) Nos.429, 456 & 462 of 2009
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Dated this the 4th day of January, 2010
JUDGMENT
Basant,J.
We commence by making reference to the celebrated observations of Justice Frankfurter in the dissenting judgment in U.S. v. Rabinowitz (339 U.S. 56 [1950]) that:
"it is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people".
We also draw inspiration from the observations of the U.S. Court of Appeals in Kopf v. Skyrm (993 F2d 374) that the defender of constitutional liberty "must share his foxhole with scoundrels of every sort, but to abandon the post W.P(Crl.) Nos.429, 456 & 462 of 2009 2 because of the poor company is to sell freedom cheaply".
We remind ourselves of the words of Justice Chandrachud in Rattan Singh v. State of Punjab and others ([1981] 4 SCC
481) also that the tribe of the detenu may deserve "no sympathy since its activities have paralysed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-
up, it is essential that at least those safeguards are not denied to the detenu."
2. These observations of the illustrious Judges have been of great help and assistance to us to assuage our feelings of discomfort and uneasiness while discharging our duties in this sensitive jurisdiction of preventive detention. We have tried to console ourselves that though we are concerned mostly with known criminals, goondas, rowdies and anti-social elements, we must deal with their cases in the context of what are great themes of freedom, personal liberty and right to live.
3. Has mind been applied properly before passing the impugned orders of preventive detention under Sec.3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (for short W.P(Crl.) Nos.429, 456 & 462 of 2009 3 `the KAAPA')? Do Sec.2(t) offences (alone) justify the classification of a `rowdy' as a `known goonda' under Sec.2(o) of the KAAPA? Is it essential that there must at least be one `non 2(t) offence' also, alleged or proved before a `rowdy' is reckoned as a `known goonda' and his preventive detention ordered under Sec.3 of the KAAPA? How are the words "can also be taken into consideration as an instance along with the other cases" in the Explanation to Sec.2(o) of the KAAPA to be understood and interpreted?
4. These interesting questions arise for determination in these three writ petitions which are taken up for consideration together. We have heard the learned counsel Sri. Rajagopalan Nair and Sri. Dileep P. Pillai appearing for the petitioners in these cases as also Sri. K.K. Ravindranath, the learned Additional Director General of Prosecutions. We are proceeding to dispose of these cases by this common judgment.
5. The identical crucial fact vitally relevant in all these three cases is that the detenus on whose behalf these petitions have been filed by the petitioners - their close relatives, to quash the orders of preventive detention passed under Sec.3 of the KAAPA, face allegations in more than two cases in pending prosecutions before courts - of having committed offences falling W.P(Crl.) Nos.429, 456 & 462 of 2009 4 within the sweep of Sec.2(t) of the KAAPA. They are reckoned as `known goondas' by the detaining authority. Significantly, there is no allegation whatsoever against them of their having committed any offence other than the offences falling within the sweep of Sec.2(t) of the KAAPA. The tabular column given below carries the vital details:
Sl. WP Total No. of No. of No. of No. of Classifi- lassifica- No. (Cri) No. of cases cases cases cases cation by tion by No. cases charge pending involving involving the the sheeted investiga 2(t) non 2(t) sponsori detaining tion offences offences ng authority only authority 429/09 Nil Known Known 1 6 5 1 6 goonda goonda 456/09 Nil Known Known 2 11 8 3 11 goonda goonda 462/09 Nil Known Known 3 5 4 1 5 rowdy goonda
6. The learned counsel for the petitioners contend that inasmuch as the detenus are not alleged to have committed any non 2(t) offence, they cannot be classified as `known goondas' under Sec.2(o) of the KAAPA and consequently their detention under Sec.3 of the KAAPA classifying them as `known goondas' is legally unsustainable. Non-application of the mind to the question whether the detenus can validly be classified as `known W.P(Crl.) Nos.429, 456 & 462 of 2009 5 goondas' vitiates the impugned orders, contend the learned counsel. Inasmuch as they have been wrongly and unjustifiably classified as `known goondas', their right to make an effective representation under Art.22(5) of the Constitution and Sec.7(2) of the KAAPA are affected to their prejudice. They are hence entitled to be released, contend the learned counsel.
7. The learned Additional Director General of Prosecutions, on the contrary, contends that a `rowdy' under Sec.2(t) is by definition a goonda under Sec.2(j). A `goonda' under Sec.2(j) can be classified as a `known goonda' under Sec.2(o)(ii) if on investigation by a competent police officer he has been found guilty of "any act within the meaning of the term `goonda' as defined in clause (j) of Sec.2". An act of rowdyism - commission of an offence under Sec.2(t), can hence be taken into consideration to classify a person as a `known goonda' under Sec.2(o)(ii) of the KAAPA, contends the learned ADGP. The learned ADGP further contends that even assuming that the classification ought to have been as a `known rowdy' and not a `known goonda', that deficit or inadequacy does not in any way affect the validity of the impugned orders of detention.
8. To resolve the controversy, we are of the opinion that the tools of the statute - the definitions, the legislative scheme W.P(Crl.) Nos.429, 456 & 462 of 2009 6 and the statutory methodology have to be carefully analysed and understood. We shall undertake that exercise initially. When it comes to a question of preventive detention under the KAAPA, it is Sec.3 that is of crucial significance. We extract Sec.3(1) of the KAAPA which confers powers of preventive detention on the Government and its delegates:
3. Power to make orders detaining Known Goondas and Known Rowdies.-- The Government or an officer authorised under sub-section (2) may, if satisfied on information received from a police officer not below the rank of a Superintendent of Police with regard to the activities of any Known Goonda or Known Rowdy, that with a view to preventing such person from committing any anti-social activity within the State of Kerala in any manner, it is necessary so to do, make an order directing that such person or detained."
(rest of the Section omitted as not vitally relevant in this context)
9. First of all, it has to be ascertained whether the detenu is a known goonda or known rowdy. Only if that satisfaction - W.P(Crl.) Nos.429, 456 & 462 of 2009 7 referred to usually by us as the initial, threshold and objective satisfaction, is entertained by the detaining authority, can a valid order of detention be passed. An order of detention can be passed only against a known goonda or a known rowdy. After entertaining the initial threshold satisfaction that the detenu is a known goonda or a known rowdy, the detaining authority will have to further consider the materials and entertain the latter subjective satisfaction that the detention of such detenu is necessary with a view to prevent such detenu from committing any anti-social activity. We repeat that after entertaining the initial objective satisfaction that the detenu is either a known goonda or a known rowdy, it will further have to be considered whether the detention of such known goonda or known rowdy is necessary to prevent him from committing any anti-social activity.
10. The expressions `known rowdy' and `known goonda' in this context become very significant. The KAAPA defines a `goonda' and a `rowdy' in Sec.2(j) and Sec.2(t) respectively. A goonda or a rowdy will have to satisfy the definition of `known goonda' or `known rowdy' later. We will first examine the definition of `goonda' under Sec.2(j). We extract Sec.2(j) below: W.P(Crl.) Nos.429, 456 & 462 of 2009 8
"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 of 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."
(emphasis supplied)
11. The definition of `goonda' has two parts. A person who indulges in any anti-social activity or promotes or abets illegal activities which are harmful to the maintenance of the public order directly or indirectly is a goonda. This is the former part of Sec.2(j). The latter part of Sec.2(j) includes the following within the sweep of the expression `goonda'. They are:
(1) a `bootlegger' as defined under Sec.2(c). (2) a `counterfeiter' as defined under Sec.2(e). (3) a `depredator of environment' as defined under Sec.2
(g).
W.P(Crl.) Nos.429, 456 & 462 of 2009 9
(4) a `digital data & copyright pirate' as defined under Sec.2(h).
(5) a `drug-offender' as defined under Sec.2(i). (6) a `hawala racketeer' as defined under Sec.2(l). (7) a `hired ruffian' as defined under Sec.2(m). (8) a `rowdy' as defined under Sec.2(t).
(9) an `immoral traffic offender' as defined under Sec.2(n). (10) a `loan shark' as defined under Sec.2(q) and (11) a `property grabber' as defined under Sec.2(s) of the KAAPA.
12. A person can be classified as a goonda if he satisfactorily answers the former half of Sec.2(j) or if he falls within any of the categories referred to in the latter half of the inclusive definition of `goonda' in Sec.2(j).
13. We now come to the definition of `rowdy' in Sec.2(t). It reads thus:
`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 W.P(Crl.) Nos.429, 456 & 462 of 2009 10 the Indian Penal Code, 1860 (Central Act 45 of 1860), or any offences under the provisions 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
(ii) with less than five years of imprisonment of any type, excluding those punishable with less than one year of imprisonment; or 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."
A person who either by himself or as a member of the gang commits, attempts to commits or abets the commission of any offences specified under Sec.2(t) (hereinafter referred to as `2(t) offences') falls within the definition of `rowdy' under Sec.2(t).
14. It is relevant to note that a rowdy under Sec.2(t) will, by the operation of the inclusive latter half of the definition of `goonda' in Sec.2(j), be a goonda ipso facto. Though different W.P(Crl.) Nos.429, 456 & 462 of 2009 11 definitions are given for the expression `goonda' in Sec.2(j) and `rowdy' in Sec.2(t), it is interesting to note that a rowdy ipso facto becomes a goonda under Sec.2(j). Why this inclusion of rowdy is made in the definition of `goonda' in Sec.2(j) passes our comprehension. We must say that satisfactory explanation thereof has not been offered to us by the learned ADGP on behalf of the State. Be that as it may, we need now take note only of the fact that a rowdy under Sec.2(t) will ipso facto be a goonda under Sec.2(j) whatever may be the purpose of such inclusion of the rowdy within the sweep of the expression `goonda' in Sec.2
(j).
15. To justify an order of detention under Sec.3 of the KAAPA it is not enough if a person is a goonda or a rowdy. He must be a known goonnda as defined under Sdec.2(o) or a known rowdy as defined under Sec.2(p). Only a goonda or a rowdy who answers the definition of `known goonda' or `known rowdy' can be visited with a valid order of detention under Sec.3. It therefore assumes significance that a person who falls within the sweep of the expression `goonda' or `rowdy' alone can be classified as a `known goonda' or a `known rowdy' under Sec.2
(o) and Sec.2(p) of the KAAPA. Only if they fall within the sweep of Secs.2(o) and 2(p) can they be ordered to be preventively W.P(Crl.) Nos.429, 456 & 462 of 2009 12 detained under Sec.3.
16. We extract the definition of `known goonda' and `known rowdy' below:
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 or 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 person 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. Provided that an offence in respect of which a report was filed by a Police Officer before a lawful authority consequent to the seizure, in the presence of witnesses, of W.P(Crl.) Nos.429, 456 & 462 of 2009 13 alcohol, spirit, counterfeit notes, sand, forest produce, articles violating copyright, narcotic drugs, psychotropic substances, or currency involved in hawala racketeering may be included for consideration through the report had resulted from an action initiated by a police officer.
Explanation.- An instance of an offence involving a person, which satisfies the conditions specified in the definition of known rowdy referred to in clause (p) of Section 2 can also be taken into consideration as an instance, along with other cases, for deciding whether the person is a known goonda or not."
2(p). `Known Rowdy' means any person, who had been, by reason of acts done within the previous seven years as calculated from the date of the order imposing any restriction or detention under this Act; -
(i) made guilty, by a competent Court at least once for an offence of the nature under item (i) of clause (t) of Section 2 or any offence notified as such under the said clause; or W.P(Crl.) Nos.429, 456 & 462 of 2009 14
(ii) made guilty, by a competent Court at least twice for any of the nature under item (ii) of clause (t) of Section 2 or any offence notified as such under the said clause; or
(iii) found, on investigation or enquiry by a competent police officer or other authority, on complaints initiated by persons other than police officers, in three separate instances not forming part of the same transaction to have committed any offence mentioned in clause (t) of Section
2. Provided that any offence committed by a person:-
(i) by virtue of his involvement as a member of the family or a close relative of the family, in an incident which took place by a reason of a family dispute quarrel involving family members of close relatives on either side; or
(ii) by virtue of his involvement as a neighbour or as a close relative of the neighbour in an incident which occurred W.P(Crl.) Nos.429, 456 & 462 of 2009 15 due to a dispute between immediate neighbours; or
(iii) by virtue of his involvement as an employee of any establishment in an incident which occurred in connection with a dispute between himself and the establishment with regard to the conditions of service; or
(iv) as a member of the student community in a recognised educational institution, by virtue of his involvement, merely by his presence but without any overt act constituting the offence mentioned in clause (t) of Section 2 without being involved in any criminal conspiracy facilitating the same, in an incident which occurred due to the general involvement of students of the institution in that particular incident; or
(v) as a member of a recognised political party, by virtue of his involvement merely by his presence, but without any overt act constituting the offence mentioned in clause (t) of Section 2 without being involved in any criminal conspiracy facilitating the same, in an incident which W.P(Crl.) Nos.429, 456 & 462 of 2009 16 occurred due to the general involvement of the workers of that party in an agitation or protest or programme organised by the party with prior information given to the police officer or Magistrate having jurisdiction; or
(vi) by virtue of his involvement in a criminal act committee by him before he had attained the age of eighteen years;
shall be omitted from the computation of the number of offences taken into account for deciding whether a person is a known rowdy;"
17. The definition `known goonda' in Sec.2(o) suggests that only a goonda can be a `known goonda'. But such a strict insistence is not seen made in Sec.2(p) which defines the expression `known rowdy' to mean any person who satisfies the requirements of Sec.2(p) What we note is that there is no specific insistence in the definition of Sec.2(p) that a known rowdy must be a rowdy. But that is of no crucial significance as any person to satisfy the ingredients of (i), (ii) and (iii) of Sec. 2(p) must definitely be a rowdy under Sec.2(t). In these W.P(Crl.) Nos.429, 456 & 462 of 2009 17 circumstances, the fact that in the definition of a `known rowdy', there is no semantic insistence that he must be a rowdy is of no relevance as any person who answers the requirements of (i), (ii) and (iii) must definitely be a rowdy under Sec.2(t).
18. We must now note the distinctions between the definition of the expressions `known goonda' and `known rowdy' in Secs.2(o) and 2(p). Conviction at least in one case for an offence within the meaning of the term `goonda' as defined under Sec.2(j) would make a `goonda' a `known goonda' under Sec.2(o)(i). Similarly, conviction for one or two offences of the variety mentioned in Sec.2(p)(i) and Sec.2(p)(ii) respectively would bring a rowdy within the sweep of the expression `known rowdy' under Sec.2(p). In this context, we find that the expression `found guilty' has been used in Sec.2(o)(i); whereas the expression `made guilty' has been employed in Sec.2(p)(i) and Sec.2(p)(ii) of the KAAPA. The unidentical and different expressions used on this aspect in the two definitions, we note, is of no crucial significance.
19. We are here crucially concerned with the distinction between the definitions in Sec.2(o)(ii) and Sec.2(p)(iii). Finding by a competent police officer on investigation that the person has committed two offences/acts within the meaning of the term W.P(Crl.) Nos.429, 456 & 462 of 2009 18 `goonda' in Sec.2(j) would bring such person within the sweep of the expression `known goonda' under Sec.2(o)(ii); but to bring him within the sweep of the expression `known rowdy' under Sec.2(p)(iii), there must be not two but three instances of such commission of offences under Sec.2(t). The difference between the expressions "to have committed any act within the meaning of the term `goonda' in Sec.2(j)" in Sec.2(o)(ii) and "to have committed any offence mentioned in Sec.2(t)" in Sec.2(p)(iii) is also of no crucial importance in the given facts scenario. We intend only to observe that, whatever be the reasons, different expressions have been employed in the definition of `known goonda' and `known rowdy' in Sec.2(o) and Sec.2(p) of the KAAPA. For us, what is crucially relevant is that three 2(t) offences at least must have been committed to bring a person within the play of Sec.2(p)(iii); whereas commission of two offences would bring him within the sweep of `known goonda' under Sec.2(o)(ii).
20. It must also be noted alertly that a proviso similar to the proviso to Sec.2(o)(ii) is significantly absent when it comes to the definition of `known rowdy' in Sec.2(p). Initiation of proceedings consequent to seizure of arms and explosives under the Arms Act and the Explosive Substances Act made by police W.P(Crl.) Nos.429, 456 & 462 of 2009 19 officials cannot under any circumstances be counted to bring a rowdy within the sweep of the expression of `known rowdy' in Sec.2(p); whereas seizure of alcohol, spirit, counterfeit notes, sand etc., under certain circumstances can bring a person within the sweep of the expression `known goonda' under Sec.2(o)(ii). Provisos (i) to (vi) are there in the definition of `known rowdy' in Sec.2(p); but such provisos are significantly not available in the definition of `known goonda' under Sec.2(o) of the KAAPA.
21. What we are attempting to note is that the scheme of the Act is totally different when it comes to the definition of a `known goonda' under Sec.2(o) as distinguished from the definition of `known rowdy' in Sec.2(p) of the KAAPA.
22. Alert application of mind to all the relevant circumstances is necessary and essential before passing an order of detention under Section 3 of the KAAPA. If there be no alert application of mind to all the relevant circumstances, the impugned order of detention and the consequent detention are liable to be invalidated. The minimum that a detenu preventively detained can insist and demand is that no order of detention should be passed against him without and before alert application of mind by the detaining authority to all relevant aspects.
W.P(Crl.) Nos.429, 456 & 462 of 2009 20
23. We have already noted that it is important whether a detenu is classified as a known goonda or a known rowdy before an order of detention is passed against him. To satisfy the Court that the mind of the detaining authority has been applied alertly, such consideration is necessary. There is another dimension to this requirement. The nature of representation which the detenu can make would be totally different depending on the question whether he is classified as a known rowdy or known goonda. The defences available to him would be significantly different. For him to make an effective representation, it is hence important that mind must have been applied alertly and a decision must have been taken on the question whether he is being ordered to be detained reckoning him as a known goonda or a known rowdy. The absence/failure to apply mind pointedly on this aspect would not only vitiate the order of detention on the ground of inadequate application of mind, it will also vitiate the order of detention and the consequent detention on the ground that it deprives the detenu of an effective opportunity to make a representation under Article 22(5) of the Constitution as also Section 7(2) of the KAAPA.
24. In the instant cases, as already noted, the detenus are alleged to have committed Section 2(t) offences only. There is W.P(Crl.) Nos.429, 456 & 462 of 2009 21 no allegation of the detenus having committed any offence other than Section 2(t) offences. In cases 1 and 2, both the sponsoring authority as well as the detaining authority have classified the detenus as known goondas, whereas in case No.3, the sponsoring authority had described the detenu to be a known rowdy; but the detaining auhority had reckoned him as a known goonda in the order of detention. Reasons are not given by the detaining authorities as to why the detenus who have no "non 2
(t)" offences to their credit are sought to be classified as known goondas and not known rowdies. Nay, even in case No.3 we get no clue as to why the detaining authority disagrees with the sponsoring authority to alter the classification from known rowdy to known goonda. The counsel argue that this reveals total failure to apply the mind of the authorities. In cases 1 and 2, both the authorities have not applied their mind to the question whether the detenus can be classified as known goondas and if so, how. In case No.3, the sponsoring authority had classified the detenu as a known rowdy, but the detaining authority without application of mind had reckoned him as a known goonda.
25. We may hasten to observe that it is not very crucial in all cases as to how the sponsoring authority has classified the W.P(Crl.) Nos.429, 456 & 462 of 2009 22 detenus. The detaining authority is not a prisoner of the opinion expressed by the sponsoring authority in the report submitted under Section 3(1) of the KAAPA. Even where a sponsoring authority sponsors a detenu for detention on the premise that he is a known goonda or known rowdy, it will certainly be open to the detaining authority, after due and proper application of mind, to come to a conclusion that the detenu must be reckoned as a known rowdy or a known goonda respectively contrary to the opinion of the sponsoring authority. The detaining authority is not a prisoner of the opinion expressed by the sponsoring authority and the mere fact that the detaining authority orders detention on a different ground is certainly not sufficient to invalidate the order of detention.
26. But the detaining authority must apply its mind to the question alertly and pointedly. Has that been done in the instant case? This is the question to be considered.
27. The learned counsel argue that a rowdy under Section 2(t) of the KAAPA, who has committed only Section 2(t) offences, cannot ever be classified as a known goonda for detention under Section 3 of the KAAPA. To do otherwise would be to defeat the very scheme and mechanics of the Statute. In this context the counsel point out that though a rowdy under Section 2(t) has W.P(Crl.) Nos.429, 456 & 462 of 2009 23 been included in the definition of goonda under Section 2(j), such a goonda cannot become a known goonda under Section 2
(o) if he has not committed any non 2(t) offences. If by commission of 2(t) offences he can be reckoned as a rowdy under Section 2(t) and consequently a goonda under Section 2(j) and further a known goonda under Section 2(o)(ii), that would defeat and frustrate the provisions of Section 2(p)(iii) which insists that there must be 3 cases of commission of 2(t) offences to bring the detenu within the sweep of a known rowdy under Section 2(p) and consequently liable to suffer an order of detention under Section 3 of the KAAPA.
28. We find considerable force in this contention. If acts of rowdyism - commission of offences under Section 2(t), alone were to be reckoned as sufficient to bring a detenu within the sweep of Section 2(o)(ii), that would virtually be defeating the provisions of Section 2(p)(iii) and denying the advantage conceded to a rowdy that there must at least be 3 instances under Section 2(p)(iii) before he is classified as a known rowdy.
We cannot lightly assume that what has been given with the right hand under Section 2(p)(iii) has been taken away unceremoniously by the left hand under Section 2(o)(ii). From the scheme of the Act, it therefore appears to us that in respect W.P(Crl.) Nos.429, 456 & 462 of 2009 24 of a rowdy 3 instances are necessary and 2 instances are insufficient to classify him as a known goonda to attract the play of Section 3.
29. There is one more dimension to this. The 6 provisos to Section 2(p) are instances of exclusion of offences committed under Section 2(t). If we were to reckon 2(t) offences alone to be sufficient to attract 2(o)(ii), the benefits of these provisos would be denied to a detenu. That would mean that the sponsoring and detaining authorities by calling a rowdy, a goonda and known goonda, can virtually deny to him the benefits of the 6 provisos to Section 2(p). If that be the law, a detenu could be deprived of the advantage of the 6 provisos to Section 2(p) and also the advantage of Section 2(p)(iii) which insists that there must be 3 cases (and not 2) to bring a person within the sweep of the expression known rowdy - by the authorities simply choosing to call him a known goonda and not a known rowdy.
30. The argument of the learned ADGP is that a rowdy under Section 2(t) is by definition a goonda under Section 2(j). A goonda can become a known goonda if he satisfies Section 2(o)
(ii). "Any act within the meaning of the term goonda" in Section 2(o)(ii) must take within it an act of rowdyism - ie. commission of an offence under Section 2(t). In these circumstances, the W.P(Crl.) Nos.429, 456 & 462 of 2009 25 learned ADGP argues that if a person is found on investigation by a competent police officer of having committed two or more 2
(t) offences, that can ipso facto bring him within the sweep of the expression known goonda under Section 2(o)(ii).
31. We are unable to accept this argument. We have already noted that a rowdy has been included as a goonda under Section 2(j). We are unable to understand the rationale or the need for such inclusion. No explanation has been offered as to how and why a rowdy is ipso facto included within the definition of a goonda under Section 2(j).
32. It will be apposite in this context to refer to the definition of antisocial activity. We extract the same below:
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 ), (e),
(g), (h), (i), (l), (m), (n), (q), and (s) of this Section."
33. The former part of the definition `Anti Social Activity' describes the nature of the act that must be committed. The latter half brings within the sweep of definition of antisocial activity indulgence in activities referred to in clauses (c), (e), (g), W.P(Crl.) Nos.429, 456 & 462 of 2009 26
(h), (j), (l), (m), (n), (q) and (s) of Section 2. What is of importance is that an offence under Section 2(t) is not included as an activity which ip so facto would fall within the sweep of the definition of antisocial activity. While the activities of a bootlegger (c), Counterfeiter (e), the depredator of environment
(g), digital data and copyright pirate (h), a drug-offender (i), a hawala racketeer (l), a hired ruffian (m), an immoral traffic offender (n), a loan shark (q) and a property grabber (s) are included in the definition of antisocial activity, significantly the activity of a rowdy is not ip so facto included in the definition of antisocial activity. What we try to notice is that acts of a rowdy shall amount to antisocial activity only if the activity falls within the former descriptive part of the definition of antisocial activity in Section 2(a) and not ipso facto as in the case of activity of other offenders who are covered by the latter inclusive part of the definition.
34. We are, in these circumstances, of the very firm and definite opinion that where a person is not found guilty or found in investigation to have committed any non 2(t) offences, the mere fact that he has committed 2(t) offences, whatever be the number, cannot bring him within the sweep of the expression `known goonda' under Section 2(o)(ii). This conclusion is W.P(Crl.) Nos.429, 456 & 462 of 2009 27 inevitable considering the broad scheme of the Act and also the deprivation and frustration of the advantage of Section 2(p)(iii) and provisos 1 to 6 for a rowdy if he were permitted to be classified as a known goonda under Sectin 2(o) on the ground that he has committed 2(t) offences only.
35. The learned ADGP in this context relies on the explanation to Section 2(o). We extract the same:
"Explanation:- An instance of an offence involving a person, which satisfies the conditions specified in the definition of known rowdy referred to in clause (p) of Section 2 can also be taken into consideration as an instance, along with other cases, for deciding whether the person is a known goonda or not."
36. How can this explanation be of help to the respondents? The plain reading of the explanation clearly shows that an instance of an offence which satisfies the definition of 2
(p) "can also be taken into consideration" as an instance "along with other cases" for deciding whether the person is a known goonda or not. Plain language suggests that this explanation must be read as a proviso to Section 2(o)(ii). This does not permit reckoning of the instance of a 2(t) offence as one under Section 2(o)(ii) to attract the definition of known goonda. But such an instance can also be taken into consideration if it satisfies the other requirements of Section 2(p). Such an W.P(Crl.) Nos.429, 456 & 462 of 2009 28 instance can also be taken into consideration along with other cases. The same cannot by itself be taken into consideration. That according to us is the plain meaning of the explanation. The explanation, according to us, only facilitates the reckoning of a 2(t) offence satisfying the requirements of Section 2(p) also along with other "non 2(t) cases" under Section 2(o). The explanation ensures that the benefit of the provisos 1 to 6 shall be available to such persons even when one such instance along with other cases is taken into reckoning under Section 2(o)(ii). Section 2(p) and 2(o) read along with the explanation can never lead a Court to the conclusion that where no non 2(t) offences are alleged, 2 or more offences under Section 2(t) can be taken into consideration under Section 2(o)(ii). That certainly is not the law as we understand it.
37. If there is at least one non 2(t) offence proved or alleged against a goonda, he can be classified as a known goonda if there are other instances satisfying Section 2(p) to bring him within the sweep of a known goonda under Section 2(o)(ii). Section 2(t) offences by themselves, when they are not accompanied by other offences/acts of the nature specified in Section 2(j), cannot certainly bring a person within the sweep of the expression known goonda under Section 2(o). W.P(Crl.) Nos.429, 456 & 462 of 2009 29
38. In the instant cases as stated earlier, there is no non 2
(t) offence even alleged against the detenus. Whatever be the number of cases under Section 2(t) in which they are involved, the detenus cannot be validly classified as known goondas. Consequently the impugned orders of detention, classifying the detenus as known goondas under Section 2(o) for the purpose of passing the impugned orders of detention under Section 3, cannot be justified. The same warrant interference.
39. It is true that the instances referred to in the tabular columns above may be sufficient to bring the detenus within the sweep of the expression known rowdy under Section 2(p). But that is not the reason for passing the impugned orders of detention. Both the sponsoring and the detaining authorities in cases 1 and 2 and the detaining authority ignoring or overlooking the opinion of the sponsoring authority in case No.3 have chosen to classify the detenus as known goondas to pass the impugned orders under Section 3 of the KAAPA. It is not for this Court to substitute the initial threshold satisfaction and the latter subjective satisfaction of the detaining authorities and to hold that if not known goondas, the detenus can be reckoned as known rowdies for the purpose of justifying the impugned orders of detention under Section 3. Doing so would deprive the W.P(Crl.) Nos.429, 456 & 462 of 2009 30 detenus of their opportunity to raise relevant contentions under Article 22(5) of the Constitution and Section 7(2) of the KAAPA against the orders of detention passed against them.
40. The learned ADGP relying on the decision in Shruthi v. State of Kerala [2009(4) KLT 893] and the observations in para.28 and 31 thereof contends that this Court has taken the view that this transformation/distinction is of no crucial significance. We must immediately note that the question in this form did not arise, was not raised and was not considered in the said decision. Such a contention was not raised and was not actually considered in the said decision. The same cannot be reckoned as a precedent to conclude that a rowdy can be classified as a known goonda at the discretion of the detaining authority and that the detention can be justified on the plea that if not as a known goonda as shown in the order of detention, the detention of the detenu can be justified as a known rowdy before Court.
41. The learned ADGP contends that the language of Section 2(o)(ii) is plain and simple. It does not distinguish between a 2(t) offence and a non 2(t) offence. In these circumstances, relying on the principles relating to interpretation of statutes adumbrated in State of Jharkhand W.P(Crl.) Nos.429, 456 & 462 of 2009 31 v. Govind Singh [2005(1) KLT 34(SC)], the learned ADGP argues that when the words of the Statute are clear, plain and unambiguous, the Court is bound to give effect to that meaning irrespective of consequences.
42. We are afraid that this argument cannot be accepted. The scheme of the Act has to be borne in mind while deciding whether the words of the Statute are clear, plain or unambiguous. In the light of the different definitions for a goonda, known goonda, rowdy and known rowdy in Sections 2(j), 2(o), 2(t) and 2(p), we are unable to accept the argument that the words of Section 2(o)(ii) are so plain, clear and unambiguous as to give a construction to Section 2(o)(ii) ignoring the mandate of Section 2(p). The last trace of doubt on this aspect, according to us, is eliminated by the explanation to Section 2(o) which unambiguously mandates that an instance of an offence under Section 2(t) which satisfies the conditions specified in Section 2
(p) can also be taken into consideration along with other cases only. We do not entertain any doubt on this aspect. The words of Section 2(o)(ii) in the context and in the scheme, according to us, are plain, clear and unambiguous that 2(t) offences, whatever be the number, by themselves cannot be taken into reckoning W.P(Crl.) Nos.429, 456 & 462 of 2009 32 under Section 2(o)(ii) except where at least one non 2(t) offence is alleged against the detenu.
43. It follows that the classification of the detenus as known goondas under Section 2(o) in these cases is not legally justifiable. We note that mind has not been pointedly applied by the detaining authority on this aspect in these cases. The non application of mind has resulted in prejudice to the detenus in that their right to make a representation under Article 22(5) and Section 7(2) is thereby affected to their prejudice.
44. It eludes one comprehension why the detaining authorities in these cases have chosen to classify the detenus as known goondas and not known rowdies. Sans negligence/non application of mind, we see no other reason whatsoever. We need only reiterate our view, which we have already stated with emphasis in many cases earlier, that the executive must equip itself with the requisite competence and efficiency and live upto the challenge and mission before it if the legislative willingness to concede such draconian powers to the executive, in the yearning to ensure societal safety and security, were to be meaningful and useful to the polity.
45. Various other contentions have also been raised by the petitioners. But in the light of the view that we have taken W.P(Crl.) Nos.429, 456 & 462 of 2009 33 on the above contention, we are not adverting to the other contentions and the facts relevant thereto.
46. It follows from the above discussions that the impugned orders of detention and the consequent detention of the detenus are not valid. The same deserve to be set aside.
47. In the result:
a) These Writ Petitions are allowed;
b) Detention of the detenus - Serin, S/o.Bhaskaran, the son of the petitioner in W.P(Crl) No.429/2009, Sunilkumar @ Soda Sunil, the husband of the petitioner in W.P(Crl) No.456/2009 and Sreejith, son of the petitioner in W.P(Crl) No.462/2009 are hereby set aside;
c) If the detention of the said detenus are not necessary in connection with any other case, they shall forthwith be released by the prison authorities.
48. Registry shall forthwith communicate this order to the prison authorities concerned.
(R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-