Kerala High Court
Praseetha vs The State Of Kerala on 16 September, 2009
Bench: R.Basant, M.C.Hari Rani
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 321 of 2009(S)
1. PRASEETHA, W/O. K. SYAMKUMAR,
... Petitioner
Vs
1. THE STATE OF KERALA, REP. BY ADDITIONAL
... Respondent
2. THE DISTRICT COLLECTOR & DISTRICT
3. THE CHAIRMAN, KERALA ANTI-SOCIEAL
4. THE DEPUTY COMMISSIONER OF POLICE
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 :16/09/2009
O R D E R
"CR"
R.BASANT & M.C.HARI RANI, JJ.
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W.P.(Crl.)No.321 OF 2009
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DATED THIS THE 16TH DAY OF SEPTEMBER, 2009
J U D G M E N T
Basant, J.
1) Does revocation of a detention order under Section 10(4) fall within the sweep of Section 13(2) of the Kerala Anti Social Activities (Prevention)Act (hereinafter referred to as the 'KAAPA')?
2) Does Section 13(2)(i) of the KAAPA override the requirements of Section 3(1) of the KAAPA and is it independent of the stipulations of Section 3(1) of the KAAPA ?
These are the questions of law coming up for consideration in this writ petition.
2. The petitioner is the wife of the detenu by name Syamkumar, who has been detained under Section 3(1) read with Section 13(2) of the KAAPA. A synoptic resume of the W.P.(Crl.)No.321/09 -2- events which led to the passing of the impugned order of detention (i.e.Ext.P1) appears to be vital and necessary.
3. The detenu was involved in four criminal cases, the details of which are given below:
Sl.No. Crime No. Police Date of Offences alleged Station offence (inter alia) Crime Vanchiyoor U/s.323,324,341,308 No.203/04 Police & 34 IPC.
1 Station 01/08/04
Crime Vanchiyoor 143,147,148,149,324,
No.142/2002 Police 23/7/02 452,326&427of IPC.
2 . Station
Crime Pettah U/s.324 & 34 IPC
No.147/02 . Police
3 Station 11/10/02
Crime No. Pettah U/s.394 & 34 IPC
81/07 Police
4 Station 03/04/07
On the basis of these four cases, the detenu was considered to be a known rowdy and an order of detention dated 31-3-2008 was passed against the detenu under Section 3(1) of the KAAPA.
A copy of that order is not made available to the court. In execution of the said order of detention, the detenu was arrested on 19-6-2008 and he continues to be under detention. The said W.P.(Crl.)No.321/09 -3- order of detention was approved under Section 3(3) of the KAAPA. The said order of detention was challenged in W.P.(Crl.) No.274/2008 before this Court. But when a reference was made to the Advisory Board constituted under Section 8 of the KAAPA, the Advisory Board reported that in its opinion no sufficient cause is there for the detention of the detenu. Accordingly, by order dated 22-8-2008 ( a copy of which is not produced), the order of detention was revoked under Section 10(4) of the KAAPA and the detenu was released. W.P.(Crl)No.274/2008 was, in these circumstances, closed as infructuous as per judgment dated 26-8-2008, a copy of which is produced as Ext.P5.
4. Subsequently, the detenu was involved in another crime, i.e. Crime No.659/2008. The incident in that case occurred on 22.10.2008. The crime was registered; it was investigated; final report was filed and the same was registered as C.P.No.52/2009 before the Magistrate concerned.
5. After the said investigation was completed, Exhibit P3 report dated 19.6.2009 (signed on 20.6.2009) was submitted by the 4th respondent, Deputy Commissioner of Police, W.P.(Crl.)No.321/09 -4- Thriuvananthapuram City to the 2nd respondent, District Magistrate under Section 3(1) of the KAAPA. On the basis of the said report, the impugned order of detention, Ext.P1 was passed on 30-6--2009. The alleged detenu was arrested and he continues to be under detention from 18-7-2009. The order under Section 3(1) of the KAAPA passed by the second respondent has been approved by the Government under Section 3(3) of the KAAPA. The order under Section 10(4) has not yet been passed, it is conceded.
6. Before us, the learned counsel for the petitioner Sri.M.Rajagopalan Nair, assails the impugned order on the following five grounds:
1) The detaining authority erred in assuming that Section 13(2) of the KAAPA granted a power to detain without strict compliance with the provisions of Section 3 of the KAAPA.
2) Revocation under Section 10(4) cannot be reckoned as revocation under Section 13(1) and consequently it must be held that the provisions of W.P.(Crl.)No.321/09 -5- Section 13(2) have no application to an order of revocation under Section 10(4) of the KAAPA.
3) When revocation under Section 10(4) of the KAAPA is consequent to the opinion of the Advisory Board, no fresh order of detention can be passed relying on the same grounds wholly or by placing reliance on the same in part.
4) There has been no proper application of mind by the detaining authority before passing Ext.P1 order.
5) Ext.P1 order is bad for the reason that copies of relevant documents have not been furnished as mandated by Section 7(2) of the KAAPA and Article 22(5) of the Constitution of India.
7. Ground No.1. It will be apposite straight away to take note of the relevant statutory stipulations. Section 10(4) of the KAAPA deals with revocation of an order of detention consequent to the opinion of the Advisory Board. It reads as follows:
"10(4) In every case where the Advisory Board has W.P.(Crl.)No.321/09 -6- reported that there is in its opinion sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of a person concerned, the Government shall revoke the detention order and cause the person to be released forthwith". (emphasis supplied)
8. Section 13(1) of the KAAPA deals with the power to revoke an order of detention and Section 13 (2) deals with the circumstances under which revocation of an earlier order of detention shall not bar issuance of another order of detention. It reads as follows:
"13. Revocation of detention order,-
(1) A detention order may, at any time, be revoked or modified by the Government. (2) The revocation or expiry of detention order W.P.(Crl.)No.321/09 -7- shall not be a bar for the issuance of another detention order under Section 3 against the same person, if he continues to be a person falling within the definition of known rowdy or known goonda as given in Section 2(o) or Section 2(p) and if, -
(i) after release, he is found to have, again involved in an offence of the nature described in Section 2
(o) or Section 2(p) at least in one instance; or
(ii) the facts, which came to the notice of the Government or the authorised officer after the issuance of the earlier detention order, considered along with previously known facts are sufficient to cause a reasonable apprehension that he is likely to indulge in or promote or abet anti-social activities; or
(iii) the procedural errors or omissions, by reason of which the first order was revoked, are rectified in the procedure followed with regard to the W.P.(Crl.)No.321/09 -8- subsequent order, even if the subsequent order is based on the very same facts as the first order."
9. The learned counsel for the petitioner contends first of all that the sponsoring and detaining authorities appear to have misread of Section 13(2) of the KAAPA, to erroneously assume that Section 13(2) gives a fresh ground of detention not contemplated by Section 3(1) of the KAAPA. The learned counsel submits that Section 13(2) does not confer any powers in addition to Section 3 of the KAAPA, but only clarifies the circumstances under which the power to pass a fresh order of detention under Section 3 of the KAAPA would remain unaffected even when an earlier order of detention is revoked or the period of detention expires.
10. We find it easy to accept this contention of the learned counsel for the petitioner. An order of detention can be passed only under Section 3 of the KAAPA. To pass such an order of detention, the detaining authority must entertain the twin satisfactions contemplated in Section 3(1) of the KAAPA. The person against whom the order has been passed must be a W.P.(Crl.)No.321/09 -9- known goonda or known rowdy. This is referred to as the threshold satisfaction or the initial objective satisfaction. Once that threshold objective satisfaction is entertained, a further satisfaction will have to be entertained that it is necessary to detain the detenu to prevent him from committing anti-social activities. This is the latter subjective satisfaction. We are unable to agree that Section 13 of the KAAPA stipulates any different requirements to justify an order of detention under Section 3 of the KAAPA. Section 13(2) only deals with the situation where revocation of an order of detention or expiry of the period of detention thereunder will not affect the powers of the detaining authority to pass a fresh order under Section 3(1) of the KAAPA. Section 13(2) of the KAAPA does not prescribe any different standards for passing an order of detention. According to us, Section 13(2) only stipulates that powers under Section 3 of the KAAPA can be invoked and exercised even when there is revocation of an earlier order of detention under Section 13 of the KAAPA or expiry of the period of detention under an earlier order. Ordinarily and normally revocation of an order of W.P.(Crl.)No.321/09 -10- detention must be held to make it impermissible to pass a fresh order of detention on the same grounds. Section 13(2) only clarifies that notwithstanding the fact that an order of revocation was passed earlier or the fact that the period of detention under an earlier order of detention has expired, a subsequent order of detention under Section 3 of the KAAPA can be passed if the stipulations of Section 13(2) of the KAAPA are satisfied. Section 13(2) does therefore only lift (subject to conditions) the bar against passing a fresh order of detention when an earlier order of detention has been revoked under Section 13(1) or when the period of detention under an earlier order has expired.
11. In fact it must be noted very carefully that an order of detention can be passed only if the requirements of Section 3 of the KAAPA are satisfied at the time of passing the order. But, when an order of revocation under Section 13 of the KAAPA is already passed, such powers under Section 3 of the KAAPA can be invoked only if the requirements of Section 13(2) are also satisfied. Merely because an order of revocation is passed under Section 13(1) of the KAAPA, no new grounds of detention are W.P.(Crl.)No.321/09 -11- granted under Section 13(2). The detaining authority must still be satisfied about the existence of the twin grounds of satisfaction under Section 3. There is an additional requirement when there is a revocation of an earlier order of detention, that Section 13(2) must also be satisfied before such fresh order of detention is passed.
12. This position of law is not seriously disputed. The learned ADGP only contends that all requirements of Section 3 have been satisfied before passing the order of detention. In addition, the requirements of Section 13(2) are also satisfied in the instant case, contends the learned ADGP. The learned ADGP further argues that it cannot be contended that in view of the earlier order of revocation dated 22.8.2008 no further order under Section 3 of the KAAPA can at all be passed. We agree with the learned ADGP. We shall later go into the question whether the requisite latter subjective satisfaction is properly entertained before passing the order under Section 3 of the KAAPA or not.
13. The learned ADGP contends that in a case where the W.P.(Crl.)No.321/09 -12- order has been revoked under Section 13(1), in cases falling under clause (i) of Section 13(2) involvement in an offence of the nature described under Section 2(o) or 2(p) of the KAAPA at least in one subsequent instance is ipso facto sufficient to induce the latter subjective satisfaction. We are unable to agree with the learned ADGP on this aspect. A satisfaction under Section 3 of the KAAPA in all its rigour must be entertained - i.e., both the initial objective satisfaction as well as the latter subjective satisfaction, before an order of detention is passed under Section
3. Section 13(2)(i) cannot be held to dispense with or substitute the requirement of the latter subjective satisfaction under Section
3. The challenge on the first ground is so answered in favour of the detenu.
14. Ground No.2: The learned counsel for the petitioner contends that revocation under Section 10(4) of the KAAPA is totally different in nature, content and quality to the revocation under Section 13(1). According to the learned counsel, Section 13(1) speaks of voluntary revocations by the Government on its own. This may happen in cases falling under clauses (ii) and (iii) W.P.(Crl.)No.321/09 -13- of Section 13(2). The Government may on its own revoke an order of detention on any appropriate ground. On the realisation that there was really no sufficient ground or on the satisfaction that that there has been procedural inadequacies or on any other appropriate ground the Government may on its own revoke an order of detention before the period of detention has expired. Basically, Section 13(1) postulates voluntary revocations by the Government in its discretion and not obligatory or mandatory revocations under Section 10(4) of the Act, contends counsel.
15. We find considerable force in this contention of the learned counsel for the petitioner. Though, the expression employed in Sections 10(4), 13(1) and 13(2) is all "revocation", it would be idle to assume that revocation under Section 10(4) would fall within the sweep of the expression "revocation" either under Section 13(1) or under Section 13(2). The scheme of the KAAPA read in the light of Article 22 reveals that Advisory Board's opinion must be taken in all cases of detention. If the Advisory Board reports that there is sufficient cause for the detention of a person, the Government under Section 10(4)of the KAAPA has W.P.(Crl.)No.321/09 -14- the discretion to pass an order of confirmation or not. But, in a case where the Advisory Board reports that in its opinion no sufficient cause is there for the detention of a person, the Government is bound to revoke the order of detention. That is revocation different in quality, content and nature than the voluntary revocation under Section 13 of the KAAPA . Under Section 10(4), though called revocation, it virtually amounts to setting aside of the order of detention by an Advisory Board constituted under Section 8 of the KAAPA read with Article 22 of the Constitution. The Advisory Board has to consider the materials and render a decision as to whether there is sufficient cause to justify the detention. That decision has to be conveyed to the Government as the opinion of the Advisory Board. When a negative opinion is given by the Advisory Board, the Government has no discretion whatsoever and Section 10(4) mandates that the Government shall revoke the order of detention.
16. We have no hesitation to agree that the revocation contemplated under Sections 13(1) and (2) does not include the revocation under Section 10(4) of the KAAPA. We are supported W.P.(Crl.)No.321/09 -15- in this conclusion by the decision of the Bombay High Court in Amritlal Shah v. State of Maharashtra (1986 Cri.L.J.1587) DB. The following observations in that decision in paragraphs 14, 16 and 18 are of relevance. Their Lordships were considering identical provisions of the COFEPOSA in Section 8(f) and Section 11(2).
"14. Mr.Gumaste contended that since there are no words of limitation in sub-sec.(2) of S.11 of the COFEPOSA Act even in cases where the Advisory Board has given its opinion in favour of the detenu, a fresh order of detention can still be passed. We are unable to agree that a fresh order of detention can be passed if the order of revocation is made under the duty cast upon the appropriate Government under S.8(f) of the COFEPOSA Act. The said provision states that ".........in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the W.P.(Crl.)No.321/09 -16- person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith." The order of revocation which is passed under S.8(f) is an order which the appropriate Government is obliged to pass. There is no alternative to the revocation of the detention order. If the appropriate Government does not discharge its duty under S.8(f), a further writ can be issued to it for discharging its duty.
16. But, however, the question still remains as to whether a fresh order of detention can be passed against the same detenu. In our opinion, to hold that this can be done is to set at naught the provisions contained in Art.22(4) of the Constitution. If a person is required to be released consequent to a report of the Advisory Board which is adverse to the order of detention, we do not see how the same person W.P.(Crl.)No.321/09 -17- can be detained again unless there are fresh grounds for his detention. Such fresh orders of detention will set at naught the protection which is afforded to citizens by insisting that no order of detention can enure beyond a period of three months if such detention has not been approved by the Advisory Board.
18. ........ ........ In our opinion, therefore, considering these aspects of Art.22(4) of the Constitution and the effect of the report made by an Advisory Board and of the opinion expressed by it as provided for, in keeping with the requirement of Art.22(4) of the Constitution, in the different laws of preventive detention, no order of detention can be passed against a detenu who has been released under S.8(f) of the COFEPOSA Act unless there are fresh grounds for his detention."
(emphasis supplied) W.P.(Crl.)No.321/09 -18-
17. A question had arisen before the Supreme Court in Ibrahim Bachu Bafan v. State of Gujarat (AIR 1985 SC
697) as to whether setting aside of an order of detention by the High Court or the Supreme Court in exercise of their powers under Articles 226 and 32 of the Constitution of India can be held to amount to revocation. It has clearly been held that setting aside of an order by superior constitutional courts in exercise of their power of judicial review cannot be held to amount to revocation -i.e., voluntary revocation under Section 11 of the COFEPOSA. Similar is the provision in Section 13 of the KAAPA. There is no contention before us that setting aside of an order of detention by superior constitutional courts would attract Section 13(2). By the reason and logic of the decision in Ibrahim Bachu Bafan it has got to be held that a distinction must be drawn between obligatory revocation under Section 10(4) of the KAAPA and voluntary revocations under Section 13(1).
18. Involuntary, obligatory and mandatory revocation under Section 10(4) cannot according to us, at any rate, be equated to the voluntary and discretionary revocation by the W.P.(Crl.)No.321/09 -19- Government under Section 13. We have no hesitation, in these circumstances, to agree with the learned counsel for the petitioner that revocation of an order of detention under Section 10(4) cannot fall within the sweep of Section 13(1) or (2). Ground No.2 is answered in favour of the petitioner.
19. Ground No.3: An interesting question arises as to whether any further order of detention can be passed under Section 3 of the Act when the order is revoked under Section 10 (4) on the basis of the opinion of the Advisory Board. Here again, the decision in Ibrahim Bachu Bafan (supra) indicates the position of law, though that decision dealt not with revocation under Section 10(4) of the KAAPA (analogous provision Section 8
(f) of the COFEPOSA). The decision in Ibrahim Bachu Bafan (supra) as also the decision Chhagan Bhagwan Kahar v. N.J.Kalna (1989 (2) SCC 318) are authorities of the proposition that when an order of detention is quashed by the court by issuing a high prerogative writ, the facts/ grounds on the basis of which such an order of detention is passed should not be taken into consideration either as a whole or in part, even W.P.(Crl.)No.321/09 -20- along with fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order. The Hon'ble Supreme Court observed thus in paragraph 12:
"12. It emerges from the above authoritative judicial pronouncements that even if the order of detention comes to an end either by revocation or by expiry of the period of detention there must be fresh facts for passing a subsequent order. A fortiori when a detention order is quashed by the court issuing a high prerogative writ like habeas corpus or certiorari the grounds of the said order should not be taken into consideration either as a whole or in part even along with the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the court strikes down an earlier order by issuing rule it nullifies the entire order." (emphasis supplied)
20. There can hence be no dispute that on the same W.P.(Crl.)No.321/09 -21- grounds a fresh order of detention cannot be passed when the constitutional courts in exercise of their powers to issue writs have quashed an order of detention. By the same principle, we are of the view that grounds relied on in the orders revoked on the basis of the opinion of the Advisory Board cannot also be reckoned as grounds for passing a fresh order of detention. Not doing so would be disservice to the mandate of Article 22(4) of the Constitution of India.
21. But, in this case, we are not really concerned with that situation. Order of detention is not sought to be passed on the same grounds or the same circumstances. The order of detention is sought to be passed on the basis of the further circumstance that has emerged against the detenu in this case, i.e., registration of Crime No.659/08 and the filing of the final report which gave rise to C.P.No.52/09. We are in agreement with the learned counsel for the petitioner that when revocation is under Section 10(4), the grounds of detention relied on in the order revoked cannot constitute valid grounds to justify passing of a fresh order of detention under Section 3. To take any different W.P.(Crl.)No.321/09 -22- view would be to defeat the mandate of Article 22(4) of the Constitution of India. But, if there are fresh grounds justifying the passing of a fresh order of detention, the mere fact that there was revocation under Section 10(4) of an earlier order of detention cannot offer any immunity against detention under Section 3. The question then will be whether a fresh order of detention can be justified on the fresh grounds that have been relied on. We need only state that a fresh order of detention on fresh grounds is perfectly possible even when the earlier order is revoked under Section 10(4) of the KAAPA.
22. A question arises about Section 13(2)(i) of the KAAPA. Section 13(1) deals with revocation or modification of an order of detention by Government. But, Section 13(2) deals not merely with revocation, but it deals with expiry of an order of detention also. If an order of detention has been passed and the period of the said order of detention has expired under Section 12 (or by expiry of the period specified in the order of detention), a fresh order of detention on the same grounds cannot be justified. But, a further fact- involvement in an offence of the nature specified W.P.(Crl.)No.321/09 -23- under Section 13(2)(i) would lift the bar against passing a fresh order of detention. But, even then, Section 13(2)(i) can help only to lift the embargo against passing a fresh order of detention and cannot substitute or dispense with the requirements under Section 3 - of both the initial objective satisfaction as well as the latter subjective satisfaction. To understand this , it must be noted that Section 13(1) deals with revocation or modification whereas Section 13(2) deals not only with such revocation or modification, but also with the expiry of the period of detention stipulated under the order of detention. The challenge raised on the 3rd ground does in these circumstances succeed.
23. Ground No.4: The learned counsel for the petitioner contends that there has been no proper application of mind by the detaining authority as expected of him under Section 3 of the Act. The learned ADGP contends that inasmuch as the impugned order is not passed on the basis of the grounds relied on in the earlier order revoked under Section 10(4) and has been passed on the basis of a subsequent circumstance that has arisen, the order of detention is perfectly valid if both the satisfactions W.P.(Crl.)No.321/09 -24- contemplated under the Section are shown to be validly entertained by the detaining authority. In this context, the learned ADGP relies on the fact that the alleged detenu continues to be a 'known rowdy' taking into account the fifth case - Crime No.659/08 of Fort Police Station, Thiruvananthapuram in which the final report has been filed and case registered as C.P.No.52/09.
24. We are in ready agreement with the learned ADGP that if the detenu continues to be a 'known goonda' or 'known rowdy' under Section 3 of the KAAPA and his detention is found to be necessary on the basis of the further contumacious acts committed by him, certainly a fresh order under Section 3 can be passed notwithstanding the revocation of the earlier order under Section 10(4). Therefore, the challenge on this ground is only whether there has been proper application of mind to come to both the satisfactions under Section 3.
25. The five cases referred above confirm that the alleged detenu continues to be a 'known rowdy' as defined under Section 2(p) of the KAAPA. The former objective satisfaction can W.P.(Crl.)No.321/09 -25- therefore be entertained if the existence of the five cases is considered by the detaining authority and he entertains the requisite satisfaction on the basis of such consideration. The learned counsel for the petitioner contends that before the detaining authority, no materials whatsoever relating to the previous cases were placed and in these circumstances, the detaining authority has not applied his mind properly to the question whether the alleged detenu is a 'known rowdy' or not.
26. The learned counsel for the petitioner further contends that there has been significant non-application of mind and there exists serious incongruity between the allegations raised in Exhibit P4 final report submitted by the police and the statements in Exhibit P1 order about the nature of the offence allegedly committed by the detenu in Crime No.659/08. The learned counsel points out that the allegation taken note of by the detaining authority in Exhibit P1 is that the detenu had assaulted the victim in Exhibit P4 with a stone and caused grievous injuries to him on 22.10.2008. The learned counsel points out that significantly, this is not the allegation in Exhibit P4 against the W.P.(Crl.)No.321/09 -26- detenu. In Exhibit P4, the only allegation against the detenu who figures as the 2nd accused in that crime is only that he hit the victim on his back and chest with hands. The learned counsel for the petitioner contends that the allegation of hitting the victim with a stone is raised in Exhibit P4 only against the first accused in that crime and not against the detenu in this case. The learned counsel argues that in not having precisely applied his mind to the crucial allegation against the detenu in Exhibit P4 and in having made different allegations against the detenu in Exhibit P1, there is significant and total absence of application of mind alertly by the detaining authority. This vitiates the order of detention, contends the learned counsel for the petitioner. We find force in that contention.
27. The learned counsel for the petitioner submits that the order of detention which is supported by the grounds in Exhibit P2 have been prepared without proper application of mind. In this context, the learned counsel relies on the decision of the Hon'ble Supreme Court in Rajesh Vashdev v. State of Maharashtra 2006(1)KLT 408(SC) to contend that alert W.P.(Crl.)No.321/09 -27- application of mind is necessary not only when the order of detention is prepared and passed, but also while preparing the grounds for detention. The learned counsel builds up this argument on the basis of the recital in Exhibit P2 that the order of detention is passed to detain the detenu for a period of six months. The learned counsel argues that if detention were ordered under Exhibit P1 for a specified period of six months, that would have offended the mandate of Anitha Bruse v. State of Kerala (2008(2) KLT 857) and would have been set aside for that reason itself. The learned counsel argues that Exhibit P2 grounds for detention which accompanied Exhibit P1 thus reveals absence of application of mind. The impugned order is liable to be set aside on this ground, contends the learned counsel. We find force in this contention also. The nature of the allegations narrated and taken cognizance of by the detaining authority in Exhibit P1 does not rhyme well with the precise allegations raised against the detenu in Exhibit P4 charge sheet.
28. The learned counsel for the petitioner further contends that there has been a snapping of the nexus between the alleged W.P.(Crl.)No.321/09 -28- contumacious act committed on 22.10.2008 and the order of detention passed on 30.6.2009. The learned counsel submits that the live link between the alleged act and the order of detention must be held to be snapped because of the elapse of a period exceeding eight months from the date of the alleged act.
29. The learned counsel for the petitioner submits that the detaining authority was conscious of this long gap of time between the alleged contumacious act on 22.10.2008 and the order of detention dated 30.6.2009. That gap of time was sought to be explained by the detaining authority by a curious statement that "it can be because of the apprehension of threats from him and his associates to the victims and witnesses as reported by the Deputy Commissioner of Police(Law and Order), Trivandrum City." The learned counsel for the petitioner submits that the explanation offered for this long gap of time between 22.10.2008 and 30.6.2009 is not legally sufficient or satisfactory. The learned counsel submits that it is non-existent as there is nothing to indicate that any other incident had taken place and the victims have refrained from complaining because of the W.P.(Crl.)No.321/09 -29- apprehension of threats from the detenu or his associates. The explanation offered is a non-existent one. There are no materials to support the said allegation which is pressed into service to justify the gap of time between 22.10.2008 and 30.6.2009. The learned counsel for the petitioner has taken us through Exhibit P3 report in detail to point out that there is no specific allegation whatsoever that any incident had taken place after 22.10.2008 and before 30.6.2009 about which complaints were not made by the alleged victims on account of such alleged fear against the detenu or his associates.
30. For all these reasons, we are persuaded to agree that there is merit in the contention that there has been no proper application of mind by the detaining authority before passing the impugned fresh order of detention. The challenge on this ground thus succeeds.
31. Ground No.5: The learned counsel for the petitioner finally contends that the impugned order is bad for the reason that copies of relevant documents have not been furnished to the detenu. First of all, it is contended that the detaining authority W.P.(Crl.)No.321/09 -30- erroneously assumed that the order is being passed in exercise of the power to order detention available under section 13(2) of the KAAPA. We have already considered this question while dealing with Ground No.1. The detaining authority hence did not apply his mind to the relevant documents relating to crime Nos.1 to 4 referred to in paragraph 2. This is evident from the further fact that the documents relating to Crime Nos.203/04, 142/02, 147/02 and 81/07 were not relied on by the detaining authority as relevant documents. In continuation of the same error, the detaining authority has omitted to furnish to the detenu documents relating to these crimes 1 to 4. Thus, it is contended that the satisfaction that the petitioner is a 'known rowdy' has been entertained by the detaining authority without perusing the relevant documents. At any rate, a grievous error is committed in not having furnished those documents to the detenu under section 7(2). We note that no documents relating to any crime other than the 5th crime, Crime No.659/08 had been furnished to the detenu under section 7(2). We agree with the learned counsel for the petitioner that this is a crucial and vital lapse on W.P.(Crl.)No.321/09 -31- the part of the detaining authority.
32. The learned counsel for the petitioner then contends that even assuming that there is a power of detention under section 13(2) different from Section 3, the previous order of detention and the order of revocation of that detention must have been relied on and copies must have been furnished to the detenu. Admittedly, under section 7(2), the previous order of detention dated 31.3.2008 or the order of revocation dated 22.8.2008 have not been furnished to the detenu. This again is found by us amount to denial of the right to have the relevant documents communicated under Article 22(5) of the Constitution of India and under section 7(2) of the KAAPA.
33. The learned counsel for the petitioner then contends that reliance is placed on the report of the Advisory Board. The copy of the report has not been furnished. Of course, section 10 (3) of the KAAPA makes it clear that the report of the Advisory Board is confidential except a limited portion of such report, i.e., the opinion. If the same cannot be furnished to the detenu, evidently reliance cannot be placed on such report of the W.P.(Crl.)No.321/09 -32- Advisory Board. Moreover, in this case, we note that even the non-confidential portion of the Advisory Report - or even the order passed under section 10(4) in furtherance of such report have not been furnished to the detenu. This again we find is a crucial lapse.
34. A contention is raised that the Advisory Board has given the opinion that a fresh order can be passed on the same grounds. If as already held by us under Ground No.3, a fresh order cannot be passed on the very same ground, after order of revocation under section 10(4) is passed, observations contra made by the Advisory Board are of no relevance. In this context, we note that the Advisory Board's report is not furnished at all to the detenu and reliance placed on the observation of the Advisory Board in the confidential opinion rendered by it cannot be relied on to justify Exhibit P1 order. We find support for this conclusion in the observations of the Division Bench of the Bombay High Court in Amritlal Shah(supra). We extract paragraph 18 below:
"18. That apart, if the appropriate Government W.P.(Crl.)No.321/09 -33- is free to take a fresh step in the direction of detaining a person by its interpretation of the opinion given by the Advisory Board, it will be a great injustice to the citizen concerned. In every law of preventive detention the report of the Advisory Board is required to be confidential. If the appropriate Government decides to take a fresh action on the basis of its own interpretation or reading of the report of the Advisory Board, how is a citizen able to challenge the action of the appropriate Government? The contents of the report of the Advisory Board are a closed book as far as the citizen is concerned."
35. On the basis of the above discussions, we uphold the challenge raised against the impugned order under Ground No.5 also.
36. In the light of our findings under grounds 1 to 5, it follows that the impugned order deserves to be set aside. W.P.(Crl.)No.321/09 -34-
37. In the result:
(a) this Writ Petition is allowed.
(b) the impugned order of detention is set aside.
(c) If the detention of the detenu is not necessary in any
other case, he shall forthwith be released from custody by the prison authorities.
(d) The Registry shall forthwith communicate the order to the prison authorities.
R.BASANT, JUDGE.
M.C.HARI RANI, JUDGE.
dsn