Kerala High Court
Ashraf vs Inspector General Of Police on 25 July, 2014
Author: P.B.Suresh Kumar
Bench: Thottathil B.Radhakrishnan, P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
FRIDAY,THE 25TH DAY OF JULY 2014/3RD SRAVANA, 1936
WP(C).No. 16320 of 2014 (L)
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PETITIONER:
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ASHRAF, AGED 53 YEARS,
S/O.PAREED, KALAPPURACKAL HOUSE,
KANJIRAKKATTU BHAGOM,
PERUMBAVOOR VILLAGE, ERNAKULAM DISTRICT.
BY ADV. SMT.ANITHA MATHAI MUTHIRENTHY
RESPONDENT:
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INSPECTOR GENERAL OF POLICE,
KOCHI RANGE, PIN-682031.
BY SENIOR GOVERNMENT PLEADER SMT.KOCHUMOL KODAVATH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 25-07-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
PJ
WP(C).No. 16320 of 2014 (L)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT.P1 COPY OF ORDER NO.O9(DP)/CAMP/13 KOR DT.20.03.2014 ISSUED BY
RESPONDENT.
EXT.P2 COPY OF APPEAL/REPRESENTATION DT.11.04.2014 BEFORE THE
HON'BLE ADVISORY BOARD,ERNAKULAM BY THE PETITIONER'S
COUNSEL
EXT.P3 COPY OF ORDER IN O.P.32/2014 DT.02.05.2014.
RESPONDENT(S)' EXHIBITS
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NIL.
/ TRUE COPY /
P.S. TO JUDGE
PJ
THOTTATHIL B.RADHAKRISHNAN &
P.B.SURESH KUMAR, JJ.
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W.P.(C).No.16320 of 2014
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Dated this the 25th day of July, 2014
Version certified for reporting
J U D G M E N T
Thottathil B.Radhakrishnan, J.
1.We have heard the learned counsel for the petitioner and learned Senior Government Pleader.
2.This is a writ petition filed invoking Article 226 of the Constitution of India, seeking to quash Exhibit P1 detention order passed under the Kerala Anti-social Activities (Prevention) Act, 2007, hereinafter referred to as 'KAAPA'. That order is one restraining the petitioner from entering the jurisdictional limits of Ernakulam Rural District Police Chief, for a period of one year from 20.3.2014. Petitioner's representation to the Advisory Board under KAAPA was considered by that authority. Paragraph Nos.5 and 6 of Exhibit P3 order of the Advisory Board clearly show that crimes at serial Nos.1 to 3 and 6 in Exhibit P1 restraint order WPC.No.16320/14 2 could not have been made the foundation to enter subjective and objective satisfaction to pass an order in the nature of Exhibit P1. This means that, if at all Exhibit P1 were to stand, it has to be on the basis of the crimes at serial Nos. 4, 5 and 7 as noted in Exhibit P1. The allegations against the petitioner in those cases, as rightly noted by the Advisory Board, fall squarely under Sections 2(i), 2(j) and consequently under Section 2(o) (ii) of KAAPA. Noticing the substance of the allegations of those cases, the plea of the petitioner that mere possession would not attract those provisions was rightly repelled by the Advisory Board. 'Possession' is necessarily an inseparable component of any or all of the activities of stocking, transportation, sale or distribution. Hence, the mere absence of the word 'possession' in the definition of the term 'drug-offender' in KAAPA is not decisive to exclude a person found to be in possession of any drug in contravention of the Narcotic Drugs and Psychotropic Substances Act or in contravention of any other law for the time being in force, from the ambit of 'drug-offender' as defined in Section 2(i) of KAAPA and therefore from the purview of the terms 'goonda' and 'known-goonda' defined respectively in clauses (j) and (o) WPC.No.16320/14 3 of Section 2 of KAAPA. This is the law. The petitioner's plea that in the absence of the word 'possession' in those definition clauses, he cannot be covered by a restraint order under KAAPA has, therefore, been rightly repelled by the Advisory Board.
3.But the fundamental issue is that the satisfaction of the authority at the first instance ought to be explicit to the effect that the said authority would have passed the impugned Exhibit P1 order of restraint even on the basis of the crimes noted at serial Nos.4, 5 and 7, that is to say, de hors crimes noted at serial Nos.1 to 3 and 6. We have considered the entire contents of Exhibit P1 in the light of the submissions made by the learned counsel on either side. While the petitioner is noted as one who is involved in such activities for about ten years, the fact of the matter remains that if cases on serial Nos.1 to 3 and 6 are excluded, the other three occurrences at serial Nos.4, 5 and 7 are registered as crime cases in 2011, 2013 and 2012 respectively. We notice all these only for the limited requirement to assess as to whether Exhibit P1 contains the expression of the consideration by its WPC.No.16320/14 4 maker as to whether that order of restraint would have been passed on the basis of cases at serial Nos.4, 5 and 7 only, if the other cases were ineligible to be included and counted to put the petitioner within the definition of 'drug offender'. We do not see that Exhibit P1 reflects such consideration. The satisfaction in that regard which has to be arrived at by the competent authority under the Act cannot be substituted by any conclusion that the Advisory Board would enter. Nor can we independently assess and conclude by providing reasons to independently support the result of Exhibit P1. *
4.For the aforesaid reasons, Exhibit P1 order is unsustainable in terms of the constitutional and legal requirements as prescribed by the Constitution and the laws.
5.Be that as it may, being in writ jurisdiction, issuance of a writ in the nature of certiorari or any writ, direction or order, is within the realm of granting discretionary reliefs, of course, in accordance with law. The constitutional power of the High Court under Article 226 has to be regulated to take care of all relevant aspects that would impact on situational justice. We WPC.No.16320/14 5 have assessed the quality of the allegations in crimes at serial Nos.4, 5 and 7 of Exhibit P1 and are of the clear and firm view that the petitioner cannot get a blanket order of having Exhibit P1 quashed without conditions being imposed on him by this Court.
For the aforesaid reasons, it is ordered that Exhibit P1 shall not be enforced against the petitioner on condition that he shall mark appearance in the office of the District Police Chief, Ernakulam Rural, on all Mondays and Thursdays, commencing from 31.7.2014, between 10 a.m. and 11 a.m. Such requirement to appear will be for a period of one year from 20.3.2014, that is to say, the period for which Exhibit P1 has been issued. This shall be monitored appropriately by the District Police Chief, Ernakulam Rural and that office will have necessary authority to issue instructions for surveillance of the petitioner. Writ petition ordered accordingly.
(THOTTATHIL B.RADHAKRISHNAN, JUDGE) (P.B.SURESH KUMAR, JUDGE) WPC.No.16320/14 6 * See for support Keshav Talpade v. Emperor, AIR 1943 FC 72(B) and Shibban Lal v. State of U.P., AIR 1954 SC
179.
(THOTTATHIL B.RADHAKRISHNAN, JUDGE)
(P.B.SURESH KUMAR, JUDGE)
DG/Sha
- -true copy-
PS to Judge.