Kerala High Court
Mohamed Rafy vs State Of Kerala on 24 March, 2009
Bench: A.K.Basheer, P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 38 of 2009(S)
1. MOHAMED RAFY, AGED 27 YRS,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE DISTRICT COLLECTOR AND DISTRICT
3. THE SUPERINTENDENT OF POLICE,
4. THE DEPUTY SUPERINTENDENT OF POLICE,
For Petitioner :SRI.K.RAMAKUMAR (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.BHAVADASAN
Dated :24/03/2009
O R D E R
A.K. BASHEER & P. BHAVADASAN, JJ.
~~~~~~~~~~~~~~~~~~~~~~
W.P.(Crl.) No.38 OF 2009 - S
~~~~~~~~~~~~~~~~~~~~~~
Dated this the 24th day of March, 2009
JUDGMENT
Basheer J.
Ext.P4 order of detention issued by the District Collector and District Magistrate, Malappuram under Section 3 (1) read with Section 3 (2) of the Kerala Anti-social Activities (Prevention) Act 2007 against petitioner's brother Sri. Ubaid is under challenge in this writ petition.
2. The relevant facts and grounds for detention as discernible from Ext.P4 and Ext.P5 may be briefly noticed.
3. In Ext.P5 grounds for detention, it is seen mentioned that the detenu was charge sheeted by Vengara Police in crime No. 55/2007 for offences punishable under Section 20 (b) (ii) (B) of the Narcotic Drugs and Psychotropic Substance Act, 1985. The allegation against the detenu is that he was found in possession of 60 gms of ganja meant for sale. He was apprehended with the contraband by Vengara Police on February 21, 2007 and recovery was effected in the presence of witnesses. Charge sheet was laid against him before the Judicial Magistrate of First Class, Malappuram and the case is now pending trial in C.C. No. 574/2007.
4. In the other crime (crime No. 78/08) registered by Vengara Police, the charge against the detenu is that on March 12, 2008, he was found in possession of 3.20 Kgs. of ganja meant for sale. Recovery of the contraband was effected in the presence of witnesses from the residence of the detenu itself. That case is now pending trial before the Special Court under the NDPS Act, Vadakara in S.C 18/2008.
5. A conjoint reading of Ext.P4 and Ext.P5 will show that the detaining authority came to the subjective satisfaction that the detenu has to be classified as 'known goonda' after considering the materials placed before it by the sponsoring authority, the W.P.(Crl).No.38/09 2 Superintendent of Police. The authority took the view that if the detenu remains at large, he would continue to indulge in sale of narcotic substances in Malappuram district causing a feeling of insecurity to the peace loving people and would thus endanger the health of the younger generation of the district. It is further revealed that the detaining authority was of the view that the two cases referred to above would attract section 2 (i) of the Act which defines a "drug offender". It is in the above circumstances that Ext.P4 order of detention was passed by the detaining authority after considering Ext.P3 report of the sponsoring authority, the Superintendent of Police, Malappuram as contemplated under Section 3 of the Act.
6. It is contended by learned senior counsel appearing for the petitioner that the order of detention is wholly illegal and vitiated. He points out that the detenu would not fall within the ambit of 'known goonda' It is further contended by him that neither the sponsoring authority nor the detaining authority, particularly the latter had applied its mind while issuing the impugned order. It is the further contention of the learned senior counsel that the non supply of translated version of the order of detention has totally vitiated the order.
7. In the separate counter affidavits filed by respondent Nos. 1 and 2, the order of detention has been stoutly defended and justified. It is asserted by these respondents that the detaining authority had issued the impugned order after careful evaluation of the entire materials placed before him and after arriving at the subjective satisfaction that the detenu had been indulging in anti-social activities in the area in question and therefore his preventive detention was warranted in the facts and circumstances of the case. It is further contended that in Ext.P4 order of detention as well as in Ext.P5 grounds of detention all the relevant W.P.(Crl).No.38/09 3 provisions were quoted and brought to the notice of the detenu. Copies of all relevant documents were supplied to him. His representation was considered by the Government and the order of detention was approved as contemplated under the Act. The representation submitted by the detenu was considered by the Advisory Board. Later, the Government had confirmed the order of detention after considering the opinion of the Advisory Board. Thus, it is contended by these respondents that the order of detention does not suffer from any vice of illegality or irregularity.
8. The primary contention raised by the learned senior counsel is that the detenu would not fall within the ambit of the definition of 'known goonda' under Section 2 (o) of the Act. It is further contended by him that the order of detention is silent with regard to the subjective satisfaction allegedly arrived at by the detaining authority in this regard.
9. Learned Senior counsel points out that going by the provisions contained in Section 3 of the Act only 'known goonda' or 'known rowdy' can be detained under the Act with a view to prevent such person from committing any anti social activity in any manner within the state of Kerala. Therefore, recording the satisfaction that the proposed detenu is either a 'known goonda' or 'known rowdy' is sine qua non, in the absence of which the order will be vitiated. He further contends that the above essential requisite being conspicuously absent in the order of detention, it is liable to be quashed.
10. In Ext.P4 order the detaining authority has stated that the detenu is a 'known goonda' and if he remained at large, he would continue to indulge in the sale of narcotic substances in Malappuram district. It is true that the detaining authority has not ventured into a elaborate discussion as to how such a subjective satisfaction was arrived at. The detaining authority has of course referred to two cases registered W.P.(Crl).No.38/09 4 against the detenu under the NDPS Act. It is yet again true that in Ext.P5 grounds for detention, there is no reference to 'known goonda'. On the contrary there is specific reference to Section 2 (i) of the Act which defines a "drug offender". Section 2(i) of the Act, is extracted hereunder:
" 2(i). drug-offender" means a person who illegally cultivates, manufactures, stocks, transports, sells or distributes any drug in contravention of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985) or in contravention of any other law for the time being in force, or who knowingly does anything abetting or facilitating any such activity;
11. In this context it is profitable to refer to the definitions of 'goonda' and 'known goonda' also which read thus:
"2 (j). goonda" means a person who indulges in any anti- social activity or promotes or abets any illegal activity 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;
"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 W.P.(Crl).No.38/09 5 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:
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 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 though the report had resulted from an action initiated by a police officer.
12. A perusal of the definition of "goonda" will clearly show that a drug offender will also fall in the dragnet of the said definition. Similarly, a known goonda takes within its ambit, a goonda also. Thus, in our view a drug offender will undoubtedly fall within the definition of known gooda. In the case on hand, the detenu is found to have been involved in two crimes registered under the NDPS Act. Admittedly the two cases are pending trial before the competent court.
13. In this context we may also refer to the meaning of "anti social activity" as defined under Section 2(a) of the Act. Any person acting in W.P.(Crl).No.38/09 6 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 the safety of individuals, safety of public, public health or ecological system or any loss or damage to public exchequer or any public or private property or indulges in any activities referred in clauses (c), (e), (g), (h), (i), (m), (n), (q) and (s) of Section 2 (a) shall be held to be indulging in anti social activity. Therefore, a conjoint reading of the above definition clauses will unambiguously show that the detenu who is admittedly charge sheeted in two cases under the NDPS Act will satisfy the definition of 'known goonda' as he is a person indulging in an anti social activity.
14. The next contention raised by the learned senior counsel is that grounds for detention (Ext.P5) does not refer to the detenu as a 'known goonda' where as the order of detention specifically mentions that detenu is being detained since he is a 'known goonda'. The very purpose of furnishing a copy of grounds for detention to the detenu is to enable him to understand the basis on which the order is being issued. It is true that grounds must be specific and unambiguous. The grounds must reveal the basis on which the detenu is being detained. The materials related to his activities either as a known goonda or known rowdy as the case may be must be furnished to the detenu. A perusal of Ext.P5 will show that the details of the two cases pending against the detenu were clearly spelt out. It has also been indicated in the grounds for detention that the provisions of NDPS Act had not been found to be effective enough to deter the detenu from indulging further in similar offences. Having carefully perused the order of detention and the grounds for detention, we are satisfied that the detaining authority has complied with the statutory mandates as contemplated under Sections 3 and 7 of the Act.
W.P.(Crl).No.38/09 7
15. In this context we may notice that the petitioner has no case that the detenu has not been furnished with copies of the relevant documents which were relied on by the detaining authority while issuing the order of detention. In any view of the matter, we do not find any reason to hold that the order of detention is vitiated for any reason. We cannot accept the contention that the detenu would not fall within the ambit of 'known goonda'. Similarly the omission to refer to the detenu as a known goonda in Ext.P5, will not also vitiate the order of detention.
16. The next contention raised by the learned senior counsel is that the detaining authority is guilty of non application of mind while issuing the order of detention. Referring to Ext.P3 report of the sponsoring authority it is pointed out by the learned senior counsel that the said authority had proceeded on the basis that the detenu had already been convicted for the offence under the NDPS Act. It is true that the sponsoring authority had in fact mentioned in his report that in spite of his conviction, the detenu had not stopped indulging in detailing with narcotic substances. Similarly, as regards crime No. 55/2007 (one of the two crimes which are pending against the detenu) a wrong section had been quoted by the sponsoring authority. But the detaining authority has not repeated the mistakes committed by the sponsoring authority. This clearly indicates that the detaining authority has applied its mind. It is true that the detaining authority has not referred to the provisions of NDPS Act under which the detenu has been charge sheeted. Both in the order of detention as well, the grounds of detention, particulars of the two cases have been clearly indicated. The detaining authority has in fact referred to Section 2 (i) of Act, 2007 which defines 'drug offender', even though no reference has been made to 'known goonda'. We have discussed the above aspect in the preceding paragraph of this judgment. In our view, the failure to W.P.(Crl).No.38/09 8 make a specific reference to "known goonda" in the grounds of detention will not in any way invalidate the order of detention. For the very same reason the grounds of detention cannot also be held to be bad or vitiated.
17. We may now refer to some of the decisions cited before us by the learned senior counsel in support of the various contentions raised by him.
18. In Rajesh Vashdev Adnani Vs. State of Maharashtra & Others [2005 (8) SCC 390] their Lordships of the Apex Court were dealing with a case in which the detaining authority had verbatim reproduced the proposal of the sponsoring authority in its order of detention. The court held that this clearly indicated non application of mind. A similar instance was noticed by the Apex Court in Jai Singh and Others Vs. State of Jammu & Kashmir [1985 (1) S C 561].
19. But in the case on hand we have already noticed that the mistakes committed by the sponsoring authority in his report were apparently noticed by the detaining authority. In the order of detention, the detaining authority had not repeated the same mistakes. Therefore, it is evident that there was application of mind on the part of the detaining authority.
20. In R. Kalavathy Vs. State of Tamil Nadu [2006 (6) SCC 14] the question which came up for consideration was whether definition of "goonda" contained in Section 2 (f) of Tamil Nadu Prevention of Dangerous Activities of Bottleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum - Grabbers and Video Pirate Act 1982 was attracted in that case. The Apex Court noticed that goonda as defined in Section 2 (f) of the Act connotes that goonda must be a person who habitually commits offences. But the detenu in the above case that came up before the Apex Court was involved only in a single transaction W.P.(Crl).No.38/09 9 though consisting of several acts. It was held that the expression "habitually" implies commission of such crime repeatedly or persistently.
21. Yet another contention raised by the learned senior counsel is that the detenu had not been furnished a Malayalam translation of the order of detention though the grounds of detention was in Malayalam. It is rightly pointed out by the learned Additional Director General of Prosecution such a contention was never raised in the writ petition. But, still, he contends that it is the admitted position that order of detention was read out by the arresting officer to the detenu. The order clearly refers to "known goonda" and therefore the detenu was very well aware that he was being detained for being a known goonda. We find there is considerable force in the above contention. More importantly petitioner has not produced any material to show that any prejudice has been caused to the detenu or any of his rights has been adversely affected disabling him from making an effective representation before the Government or the Advisory Board. In that view of the matter, we do not find any merit in the above contention either. In this context we may also notice that the petitioner has no case that the detenu has not been furnished with Malayalam translation of the relevant documents relating to the two cases pending against him. Obviously therefore no prejudice has been caused to the detenu on that score.
22. Thus, having considered the entire materials available on record, we do not find any illegality or irregularity in the order of detention passed by the detaining authority. We have been informed that the Advisory Board had rendered its opinion advising the Government that sufficient grounds do exist to detain the detenu under the Act. It is on record that the Government has passed Ext.P8 order accepting the above opinion of the Advisory Board. The detenu is ordered to undergo detention W.P.(Crl).No.38/09 10 for the maximum period of six months as revealed from Ext.P8.
23. Having regard to the entire facts and circumstances, we are satisfied that Ext.P4 order of detention is legally valid and sustainable and no ground exists warranting our interference.
The writ petition fails and it is accordingly dismissed.
A.K. BASHEER, JUDGE P. BHAVADASAN, JUDGE kmd/cl W.P.(Crl).No.38/09 11 A.K. BASHEER Judge P. Bhavadasan W.P.(Crl).No.38/09 12 Judge an.