Kerala High Court
This Writ Petition Has Been Filed By The ... vs Union Of India (2015 (16) Scc 177). So As on 2 February, 2021
Author: M.R.Anitha
Bench: K.Vinod Chandran, M.R.Anitha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942
WP(Crl.).No.312 OF 2020
PETITIONER
MARY SELMA
AGED 23 YEARS
W/O. JAISON, PARUTHIYIL VEEDU, WARD NO.24,
MARARIKKULAM SOUTH, ALAPPUZHA DIST.
BY ADVS.
SRI.C.RAJENDRAN
SRI.B.K.GOPALAKRISHNAN
RESPONDENTS
1 STATE OF KERALA
REPRESENTED BY THE ADDL. CHIEF SECRETARY (HOME),
GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE DISTRICT MAGISTRATE,
CIVIL STATION, ALAPPUZHA, PIN-688001.
3 SUPERINTENDENT OF POLICE (RURAL),
SUPERINTENDENT OFFICE, ALAPPUZHA, PIN-688001.
4 STATION HOUSE OFFICER,
MANNANCHERRY POLICE STATION, ALAPPUZHA, PIN-
688001.
5 THE SUPERINTENDENT,
CENTRAL PRISON, POOJAPPURA, THIRUVANANTHAPURAM-
695012.
W.P.(Crl).312/2020
2
6 THE SUPERINTENDENT,
CENTRAL PRISON, THRISSUR-680010.
BY GOVERNMENT PLEADER SRI.K.A.ANAS
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD
ON 02-02-2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(Crl).312/2020
3
K.VINOD CHANDRAN & M.R.ANITHA, JJ.
-----------------------------------
W.P.(Crl.) 312 of 2020
-----------------------
Dated : 2nd February, 2021
JUDGMENT
C.R. M.R.Anitha, J.
1.This writ petition has been filed by the wife of the detenu, challenging the order of detention issued by the second respondent/District Magistrate.
2.Ext.P1 is the detention order passed by the District Magistrate, Alappuzha/2nd respondent dated 19.8.2020 under Sec.3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter be referred as 'KAA(P)A'). Detention order has been executed on 28.8.2020. 2nd respondent passed the detention order on the basis of the reports of the Superintendent of Police (Rural), Alappuzha (3rd respondent), the Sponsoring Authority.
3.The husband of the petitioner (hereinafter referred as detenu) has been classified as a 'known rowdy' on the basis of eight cases registered against him. According to the petitioner, the impugned order passed is in W.P.(Crl).312/2020 4 total violation of Sec.3(3) of KAA(P)A. The approval has not been granted in 12 days from the date of arrest. It is alleged that there is delay in consideration of the representation by the Government. Petitioner further alleges that the detenu was served illegible, non readable and incomplete documents (six in number) which caused prejudice in making an effective representation. It is her further case that there were no records before the Detaining Authority while passing the impugned order to prove that the detenu was released on bail after Ext.P14 dismissal of bail; order in Crime No.1052/2019 of Mannachery Police Station. So the detenu can only be presumed as remaining in judicial custody and there is no consideration by the Detaining Authority as to why the detenu should in that context be detained in a preventive manner. Hence according to the petitioner, the detention order passed by the Detaining Authority, approved and confirmed by the authorities concerned, is without any application of mind and is illegal and unconstitutional.
4.Counter affidavit has been filed by the 1 st and W.P.(Crl).312/2020 5 2nd respondents separately refuting the allegations of the petitioner and supporting the impugned order passed by the Detaining Authority. According to them, there is strict compliance of Sec.3(3), which excludes the holidays, in computation of 12 days. Copies of the records have been furnished to the detenu as far as possible and the records produced before the Detaining Authority by the Sponsoring Authority itself would reveal that the petitioner was on bail. Hence there is no question of any prejudice having been caused to the detenu and the impugned order has been passed perfectly in accordance with law considering all the documents produced before the Detaining Authority on strict application of mind and hence there is no reason whatsoever to interfere with the order passed by the Detaining Authority.
5.We will deal with the objection raised by the petitioner one by one. According to the petitioner, there is non compliance of Sec.3(3) of KAPPA. Detention order has been passed on 19.8.2020, executed on 27.8.2020 and approved by the Government on 16.9.2020 which is beyond W.P.(Crl).312/2020 6 12 days prescribed under Sec.3(3). Sec.3(3) provides that the Authorized Officer under sub- section (2) of Sec.3 shall forthwith report the factum of passing the detention order to the Government and the Director General of Police, together with copies of the order and supporting records. It further provides that no such order shall remain in force for more than 12 days from the date of detention, but of course with a rider excluding public holidays from the date of detention. According to the respondent, there is sufficient compliance of Sec.3(3) since Saturdays were also declared as holidays as per the then existing COVID-19 protocol issued by the Government of Kerala.
6.On computing the period from 27.8.2020 excluding public holidays and Saturdays (29.08.2020, 30.8.2020, 31.8.2020, 1.9.2020, 2.9.2020, 5.9.2020, 6.9.2020, 10.9.2020, 12.9.2020 13.9.2020), on 16.9.2020 when it was approved by the Government it will be the 11th day even if 27.8.2020 is included. That is within 12 days prescribed under Sec.3(3). In computing the period of limitation as per Sec.12(1) of the Limitation Act,1963, the day W.P.(Crl).312/2020 7 from which such period is to be reckoned shall be excluded. If 27th is excluded, it will be on the 10th day that Government approved the detention order. So it is well within the time of 12 days stipulated under S.3(3)of KAAPPA. Hence the contention to the contra advanced by the learned counsel is not sustainable and is hereby negatived.
7.The learned counsel further argues on the delay caused in disposal of the representation by the Government. According to him the detention order was passed on 19.08.2020,executed on 27.08.2020, approved by the Government on 16.9.2020 and representation was given by the detenu to the Government and also to the Advisory Board on 17.9.2020. Advisory Board approved the detention order on 19.10.2020. The Government as per order dated 28.10.2020 confirmed the order.
8. The grievance of the petitioner is that the representation to the Government was disposed off only on 4.11.2020 as per Ext.P17, after the confirmation of the order by the Government. But it has come out that an Officer of the Government independently considered the W.P.(Crl).312/2020 8 representation and rejected the same on 4.11.2020 and it was served upon the detenu on 8.11.2020. There cannot be a contention raised that the Government ought to have considered the representation before sending the matter to the Advisory Board since the representation was dated on the next day on which the records where forwarded to the Advisory Board. If the representation was considered while the matter was pending before the Advisory Board then it would have violated the dictum in Golam Biswas vs. Union Of India (2015 (16) SCC 177). So as rightly pointed out by the learned Government Pleader there is no delay in the above regard and no prejudice has been caused to the accused. We do not find any merit in the contention so advanced by the counsel for the petitioner.
9. According to the petitioner, non readable and incomplete documents, have been produced before the Detaining Authority and without any application of mind,based on such non readable and incomplete documents the impugned order has been passed. To substantiate the contention, the learned counsel brought our attention to W.P.(Crl).312/2020 9 page No.55 which is the copy of the FIR in Crime No.139/2014 marked as Ext.P5. Copy of the FIR obviously is not a readable one. Page 58 is the copy of the FIR in Crime No.907/2014 which is produced and marked as Ext.P7, which cannot be said to be fully readable. The learned counsel further brought our attention to Page No.61 which according to him, is an incomplete document marked as Ext.P9, which would show that it is an official memorandum dated 17.11.2014 issued by the Judicial First Class Magistrate, Alappuzha, intimating the enlargement of the accused on bail. But on the bottom of the document wherein the conditions are enumerated, there is a specific endorsement of 'PTO' (Please Turn Over); but the reverse page is not enclosed which shows that the document is incomplete. Copy of the FIR in Crime No.1692/2015 has been produced and marked as Ext.P10. On looking at Ext.P10, as rightly contended by the petitioner, it evidently cannot be read. Ext.P12, is the memorandum of bail order in Crime No.839/2016. It is illegible and conditions are also not readable from the same. Ext.P13 particulars of the W.P.(Crl).312/2020 10 accused would show that the detenu is the 2 nd accused in that Crime. Exts.P5, P7, P10 and P12 are not readable and legible and Ext.P9 is an incomplete document supplied to the detenu causing prejudice to his right to make a representation.
10. Yet another contention advanced by the learned counsel is with regard to Ext.P14. According to the learned counsel, though Crime Nos.622/2020 and 869/2020 are said to have been registered after the rejection of bail by virtue of Ext.P14 in Crime No.1052/2019, no material is available with the Detaining Authority to find the accused having come out of judicial custody, after Ext.P14 by which Crl.M.P.400/2020 in Crime No.1052/2019 has been dismissed by the Sessions Judge, Alappuzha on 6.2.2020. So according to the learned counsel there is absolute non application of mind by the Detaining Authority in passing the detention order since there is nothing to substantiate that the accused was released on bail by any Court after Ext.P14 dismissal of bail order in Crl.M.P.400/2020 so as to commit the crimes registered as Crime Nos.622/2020 and W.P.(Crl).312/2020 11 869/2020. On perusing the impugned order, there is reference to Crime No.622/2020; which relates to an incident occurred on 27.4.2020 in pursuance of which the detenue was arrested on 30.4.2020 and released on the same day. But there is nothing to indicate his release after Ext.P14, which was prior to the commission of Crime No 622/2020. If the release was made in Crime 1052/2019, it could only have been by a bail order, which document has not been produced by the Sponsoring Authority or perused by the Detaining Authority. As far as Crime No. 869/2020, which relates to a still subsequent event, the details provided in the impugned order itself is that accused is absconding. The crux of the argument of the learned counsel for the petitioner is about the non application of mind by the Detaining Authority while passing the impugned order.
11. At the time of hearing the learned Public Prosecutor also could not bring to our attention any document from their file to prove the release of the detenu after Ext.P14 and a subsequent arrest made. We are told that the detenu was arrested from the Jail where he was W.P.(Crl).312/2020 12 in custody by order issued by the learned Magistrate on 26.8.2020. The arrest for the purpose of preventive detention was made on 27.8.2020. That again would strengthen the case of the petitioner that the detenu was not released from the prison after Ext.P14.
12. The above facts would reveal that before passing of the detention order, the Detaining Authority has not perused the bail order in Crime No.1052/2019. In this context the learned counsel for the petitioner placed reliance on Hajara v. State (1997 (2) Crimes 704 = 1997 0 CrL.J. 2196). In that case the detenu urged that bail application and the bail order were not placed before the Detaining Authority and the detaining Authority had no opportunity to consider the same and also alleged that the grounds of detenu were in English and they were not translated into Malayalam and hence the detenu had not been enabled to give a proper representation. The respondent on the other hand contended that all those were irrelevant documents and all the relevant documents were produced before the Detaining Authority and on consideration of such relevant documents, the W.P.(Crl).312/2020 13 detention order was issued. While disposing that matter this Court referred to Abdul Sathar Ibrahim Manik v. Union of India (AIR 1991 SC 2261). In that decision it was held that failure to supply bail application and the order refusing bail will not cause any prejudice to the detenu. But the Court held that in a case where detenu is released on bail and is at liberty at the time of passing the order of detention then the Detaining Authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case bail application and the order granting bail should necessarily be placed before the Authority and the copies should also be supplied to the detenu. In that decision, Dr.Hanuman Gulam Hussain Chougle v. Union of India (Crl.W.P.1384/1991) was also quoted wherein the detenu was already on bail and certain conditions were imposed restricting the movement of the detenu, which were held to be vital facts. Ultimately it was concluded by this Court in Hajara's case that the Apex Court has made a distinction between bail being granted before the order of detention and the W.P.(Crl).312/2020 14 bail being granted subsequent to the order of detention and has taken a view that when the detenu was already on bail before the detention order was passed, the bail order and the bail application are vital documents which are to be considered by the Detaining Authority.
13. In the present case, the recommendation of the Sponsoring Authority contained a tabulation of the details of the various Crimes which indicates the detenu having been released in Crime No.1052/2019. But there is no order of court produced subsequent to Ext. P14, which was an order declining bail in that Crime. But there is nothing from the impugned order to infer that the bail order releasing the accused was perused by the Detaining Authority and there is subjective satisfaction that the conditions in the bail order will not suffice to prevent further anti-social activities of the detenu. So that would definitely amount to non application of mind, as rightly contended by the learned counsel.
14. It is also relevant in this context to quote Rajesh Vashdev Avnani v. State of Maharashtra and others (2005 (8) SCC 390). In W.P.(Crl).312/2020 15 that case the detenu challenged not only the detention order on the ground of non application of mind by the Detaining Authority while granting approval to the detention proposal but also at the time of preparation of detention order and grounds thereof. That was a case in which preventive detention was ordered under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) - Sec.3(1)(i) and Sec.3(1)
(iii) and also the the Customs Act, 1962 - Sec.108. The contention of the detenu was that on perusal of the detention order, it is verbatim reproduction of proposal made by the Sponsoring Authority with a minor change of altering the word "he" with "you". In the said context it was held that the Detaining Authority has to apply the mind while granting approval and also while passing the detention order and examining the grounds of the detention. The said decision was passed by the Apex Court by following the dictum in Jai Singh v. State of J. & K. (1985 (1) SCC 561 = 2005 KHC 1895). In that case, the detenu was already in custody in connection with a criminal case W.P.(Crl).312/2020 16 and it was held that nothing was there to indicate that the District Magistrate applied his mind to the question whether an order of detention under the Jammu and Kashmir Safety Act was necessary despite the fact that the petitioner was in custody in connection with the criminal acts.
15. The learned counsel for the petitioner also brought to our attention Shajitha Suneer v. State of Kerala and Others (2019 (3) KHC 453) wherein this Court has stressed the need for application of mind on the part of Detaining authorities while passing detention orders. In that case the Court set aside the detention order on the ground of non application of mind of the Detaining Authority. It has been found therein that the reason for arriving at a conclusion regarding non application of mind is based on the fact that in spite of the fact that accused was enlarged on bail with conditions the Detaining Authority did not consider whether bail conditions are sufficient to prevent the detenu from continuing to indulge in anti-social activities. The learned Prosecutor would contend that the above W.P.(Crl).312/2020 17 decision has been taken up by the respondents before the Apex Court and as per Crl.Appeal No...../2020 (arising out of SLP Crl.No...../2020 [@ Diary No.34801/2019], (copy was made available at the Bar) the Apex Court has observed that the view taken in the impugned judgment is doubtful. However, since the detention period was already over long back, leaving the question open the matter was disposed of with a direction that the judgment shall not be treated as a precedent in future cases including in respect of the respondent therein. We have to notice that the Hon'ble Supreme Court in Noor Salman Makani vs. Union of India (AIR 1994 SC 575), referred to in the cited decision of this Court, had held that whether a particular document was vital or not would depend on the facts of each case.
16. In the present case, failure of the Detaining Authority to consider the bail order alone is not the irregularity pointed out. In this case we have already discussed that there is no document whatsoever to show that the detenu was released on bail and there after involved in other crimes. The only order W.P.(Crl).312/2020 18 enclosed with the impugned order is the dismissal of the bail application by the Sessions Court. In other words there is nothing to show that the detenu was out of prison at the alleged time when the subsequent crimes were alleged to have been committed. So the facts and circumstances of this case is entirely different from Shajitha Suneer's case, referred above.
17. In this case, we have already found that Exts.P5, P7 P10 and P12 are not readable and legible and Ext.P9 is an incomplete document supplied to the detenu which caused prejudice to the detenu insofar as his right to make a proper representation based on those documents. It has also been found that Crime Nos.622/2020 and 869/2020 alleged to have been registered after the rejection of bail order, Ext.P14, in Crime No.1052/2019 which fact has not been considered by the Detaining Authority. We reiterate there is no order enlarging the accused on bail, after Ext.P14, placed before the Detaining Authority. So much so, the impugned order has been passed by the Detaining Authority without verifying a relevant W.P.(Crl).312/2020 19 document. Some other documents, Ext.P5 (Crime 139/2014), Exts.P7 and P9 (Crime 907/2014), Ext.P10 (Crime 1692/2015), are non readable copies, which prejudiced the detenu from making a proper representation. That would in turn lead to a conclusion that the impugned detention order has been passed based on two crimes alone ie., Crime Nos.136/2014 and 1052/2019 of Mannancherry Police Station. That would even take away the petitioner out of the purview of "known rowdy" as defined under Sec.2(p) of KAAPA since Sec.2(p)(iii),which mandates that in order to include a person as "known rowdy" there should be at least three separate instances on which investigation or enquiry by a competent Police Officer or Authority on complaints initiated by persons other than Police officers not forming part of the same transaction is pending within seven years prior to the order of detention. Moreover we have also found that the Detaining Authority has not verified any documents to show that after Ext.P14 the detenu has been released from jail by any competent Court. If a release has been effected, necessarily the conditions W.P.(Crl).312/2020 20 imposed on release had to be verified by the Detaining Authority. So there is absolute non- application of mind on the part of the Detaining Authority in passing the impugned order.
18. Law of preventive detention is very harsh and its provisions are very stringent which affect the personal liberty of a citizen, guaranteed under Article 21 of the Constitution of India. Whenever such an intervention is made by a statutory body affecting the personal liberties, it should be in strict compliance of the procedure established by law. Whenever there seems to be violation, the Court should not be reluctant to interfere in order to uphold the fundamental rights of the citizen guaranteed under the Constitution of India. In this case we have already discussed that non- application of mind is writ large on the part of the 2nd respondent/Detaining Authority.
19. Based on the above discussion we are of the considered view that the impugned detention order passed by the second respondent is vitiated by non-application of mind and hence is not sustainable and is liable to be set W.P.(Crl).312/2020 21 aside.
20. In the result, the detention order is set aside and writ petition allowed. We direct release of the husband of the petitioner, Jaison @ Binukuttan @ Steel Binu forthwith from the Central Prison, Viyyur. We make it clear that the absence of a bail order releasing the detenu from judicial custody in Crime No.1052/2019 is pointed out only to find non- application of mind in passing an order of preventive detention on the part of the Detaining Authority and it shall not affect the trial in the two Crimes registered subsequently.
Sd/-
K.VINOD CHANDRAN Judge Sd/-
M.R.ANITHA Judge Mrcs/2.2.x W.P.(Crl).312/2020 22 APPENDIX EXHIBITS:
EXHIBIT P1 A TRUE PHOTOCOPY OF THE DETENTION ORDER NO.SC6-191905/2020 DATED 19.8.2020 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P2 A TRUE PHOTOCOPY OF THE FIR IN CRIME NO.136/2014 OF MANNANCHERY POLICE STATION.
EXHIBIT P3 A TRUE PHOTOCOPY OF THE FIS IN CRIME NO.136/2014 OF MANNANCHERY POLICE STATION.
EXHIBIT P4 A TRUE PHOTOCOPY OF THE RELEVANT PAGES OF PARTICULARS OF THE DETENU IS THE 3RD ACCUSED IN CRIME NO.136/2014 MANNANCHERY POLICE STATION.
EXHIBIT P5 A TRUE PHOTOCOPY OF THE FIR IN CRIME NO.139/2014 OF MANNANCHERY POLICE STATION.
EXHIBIT P6 A TRUE PHOTOCOPY OF THE RELEVANT PAGES OF PARTICULARS OF THE DETENU IS THE 5TH ACCUSED IN CRIME NO.139/2014 MANNANCHERY POLICE STATION.
EXHIBIT P7 A TRUE PHOTOCOPY OF THE NOT READABLE COPY OF FIR IN CRIME NO.907/2014 OF MANNANCHERY POLICE STATION.
EXHIBIT P8 A TRUE PHOTOCOPY OF THE RELEVANT PAGES OF PARTICULARS OF THE DETENU IN CRIME NO.907/2014 MANNANCHERY POLICE STATION.
EXHIBIT P9 A TRUE PHOTOCOPY OF THE OFFICIAL MEMORANDUM OF BAIL DATED 12.11.2014. W.P.(Crl).312/2020 23 EXHIBIT P10 A TRUE PHOTOCOPY OF THE FIR IN CRIME NO.1692/2015 OF MANNANCHERRY POLICE STATION.
EXHIBIT P11 A TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE FINAL REPORT IN CRIME NO.1692/2015 (FOUR PAGES NOT LEGIBLE).
EXHIBIT P12 A TRUE PHOTOCOPY OF THE MEMORANDUM OF THE BAIL OF THE DETENU AND ANOTHER DATED 9.12.2016.
EXHIBIT P13 THE RELEVANT PAGE REGARDING THE PARTICULARS OF THE DETENU IS THE 2ND ACCUSED IN CRIME NO.839/2016 OF MANNANCHERY POLICE STATION.
EXHIBIT P14 A TRUE COPY OF THE ORDER IN CRL.M.P.400/2020 OF SESSIONS COURT, ALAPPUZHA DATED 6.2.2020.
EXHIBIT P15 A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 17.9.2020 ADDRESSED TO THE 1ST RESPONDENT.
EXHIBIT P16 A TRUE PHOTOCOPY OF THE ORDER APPROVING THE DETENTION ORDER DATED 16.9.2020.
EXHIBIT P17 A TRUE PHOTOCOPY OF THE ORDER DISPOSING THE REPRESENTATION DATED 4.11.2020.
EXHIBIT P18 A TRUE COPY OF THE CONFIRMATION ORDER DATED 27.10.2020.