Kerala High Court
Joicy vs State Of Kerala
Author: V Shircy
Bench: P.R.Ramachandra Menon, V Shircy
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
WEDNESDAY, THE 22ND DAY OF NOVEMBER 2017/1ST AGRAHAYANA, 1939
WP(Crl.).No. 347 of 2017 (S)
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PETITIONER:
-------------
JOICY,
AGED 24 YEARS, W/0 JOMSON @ JOMON,VALIYAVEETIL,
PUNNAPRA.P.O, ALAPPUZHA DISTRICT.
BY ADVS.SRI.VIPIN NARAYAN
SRI.C.JAYAKIRAN
RESPONDENTS:
--------------
1. STATE OF KERALA,
REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT,
HOME DEPARTMENT,SECRETARIAT,THIRUVANANTHAPURAM-695001.
2. THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE,
COLLECTORATE, ALAPPUZHA-688001.
3. THE DISTRICT POLICE CHIEF,
ALAPPUZHA-688001.
4. SUB INSPECTOR OF POLICE,
PUNNAPRA POLICE STATION, ALAPPUZHA-688001.
R1-R4
BY GOVERNMENT PLEADER SRI K.A. ANAS
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
22-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(Crl.).No. 347 of 2017 (S)
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APPENDIX
PETITIONER(S)' EXHIBITS
-----------------------
EXHIBIT P1 TRUE COPY OF THE ORDER OF DETENTION NO.SC-2061/2017
DATED 17.04.2017 ISSUED BY THE 2ND RESPONDENT UNDER SECTION 3(1)OF
KERALA ANTI-SOCIAL ACTIVITIES(PREVENTION)ACT 2007.
EXHIBIT P2 TRUE COPY OF THE GROUNDS OF DETENTION DATED
17.04.2017.
EXHIBIT P3 TRUE COPY OF THE REPORT BY THE 3RD RESPONDENT DATED
03.04.2017
EXHIBIT P4 TRUE COPY OF THE FINAL REPORT ALONG WITH THE FIR IN
CRIME NO.826/2011 OF PUNNAPRA POLICE STATION AS SUPPLIED TO DETENU
EXHIBIT P5 TRUE COPY OF THE FINAL REPORT ALONG WITH THE FIR IN
CRIME NO.38/2015 OF PUNNAPRA POLICE STATION AS SUPPLIED TO DETENU
EXHIBIT P6 TRUE COPY OF THE FINAL REPORT ALONG WITH THE FIR IN
CRIME NO.1040/2013 OF PUNNAPRA POLICE STATION AS SUPPLIED TO DETENU
EXHIBIT P7 TRUE COPY OF THE FINAL REPORT ALONG WITH THE FIR IN
CRIME NO.1050/2013 OF PUNNAPRA POLICE STATION AS SUPPLIED TO DETENU
EXHIBIT P8 TRUE COPY OF THE FIR IN CRIME NO.955/2016 OF PUNNAPRA
POLICE STATION ALONG WITH DOCUMENTS AS SUPPLIED TO DETENU.
RESPONDENT(S)' EXHIBITS
-----------------------
NIL
KS.
True copy
P.S. (Hr.Gr.)To Judge
C.R.
P. R. RAMACHANDRA MENON & SHIRCY V.,JJ.
==============================
W.P.(Crl.)No. 347 of 2017
==============================
Dated this the 22nd day of November, 2017
JUDGMENT
Shircy V.,J.
The petitioner, the wife of one Jomson@Jomon who is detained in Central Prison Viyyur as 'known rowdy' as per an order dated 17.04.20017 of the District Magistrate (for short 'detaining authority') under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act (hereinafter referred to as 'KAAPA' in short) seeks to set aside the order by filing this Writ Petition under Article 226 of the Constitution of India .
2. The District Magistrate, who is the 2nd respondent, has issued Ext.P1 detention order on 17.04.2017 under Section 3(1) of the KAAPA on the basis of Ext.P3 report of the 3rd respondent, the District Police Chief and the Sponsoring Authority. The 4th respondent was entrusted to WPCR 347/2017 2 execute the order and the detenu was detained in prison on 26.05.2017 on the basis of the detention order. Ext.P1 detention order was approved by the Government on 03.06.2017 and the Advisory Board rejected his representation and the order was confimed by the Goverment on 12.07.2017. The petitioner being aggrieved preferred this petition raising the following reliefs : -
"i) Set aside Ext.P1 order issued against the detenu udner Section 3(1) of the kerala anti Social Activities (Prevention) Act, 2007,
ii) issue a writ of Habeas Corpus commanding the respondents to produce the body of Sri Jomson before this Hon'ble Court and set the detenu at liberty forthwith;
and
iii) Issue any other appropriate writ, order or direction as the petitioner prays later or as this Hon'ble Court may deem fit and necessary to issue in the interest of justice.
3. We heard Sri.Vipin Narayanan, the learned counsel for the petitioner, Sri. K.A. Anas, the learned Government Pleader for the respndents and perused the records. WPCR 347/2017 3
4. The detaining authority has reckoned five cases for issuing the detention order against the detenu. The details of the cases mentioned in Ext.P1 order are as follows:
Sl. Police Station and Date and Time Offences Stage No Crime No. 1 Punnapra Police 11/12/11 Sections 143, Pending trial Station Crime No. 147, 148, 826/29011 149, 294(b), 333, 427 & 307 IPC 2 Punnapra Police 20/10/2013 Sections 143, Pending trial Station Crime No. 147, 148, 1040/2013 149, 323, 324, 294(b), 333, 427 & 307 IPC 3 Punnapra Police 23/10/2013 Sections 143, Pending trial Station Crime No. 147, 148, 1050/2013 149, 294(b), 324, 326 & 308 of IPC 4 Punnapra Police 19/1/2015 Sections Pending trial Station Crime 143,147, No.38/2015 148, 149, 294(b), 307, 332 IPC
5 Punnapra Police 19/10/2016 143,147,148, Investigation Station Crime 149,294(b), No.955/2016 506(ii) of IPC and Section 27 of the Arms Act.
5. Out of the five cases except Crime No. 955/2016, all WPCR 347/2017 4 cases are pending for trial. In Crime No. 955/2016 the invesigation is in proress.
6. The petitioner has challenged Ext.P1 detention order projecting various grounds. It is vehemently argued by the learned counsel for the petitioner that Ext.P1 order is illegal, unjust and arbitrary and the same was passed without application of mind by the detaining authority, simply accepting the Report of the sponsoring authority, the Police Chief, and so it is liable to be set aside. Though various grounds are urged the point stressed by the learned counsel for the petitioner is that the complaintants in Crime Nos 826/2011 and 38/2015 are Assistant Sub Inspectors of Police and hence the two cases could not be considered in view of the specific bar under Section 2 P(iii) of KAAPA and inclusion of those cases to bring the detenu within the sweep of the definition of 'known rowdy' itself indicates that there was non-application of mind and that the detaining authority erred grossly in passing the detention order. It is WPCR 347/2017 5 also argued that the order was issued in violation of Section 7 of KAAPA as the copies of the order as well the statements of witnesses recorded under Section 161 Cr.P.C. etc. were not furnished to the detenu and thus he was deprived of his fundamental and constitutional right guaranteed under Article 22(5) of the Constitution of India to make an effective representation to the authorities concerned. It is further argued that the impugned order was issued without the objective and subjective satisfaction by the detaining authority and hence, the order under challenge is liable to be set aside .
7. The learned Govement Pleader has stoutly defended the impugned action of the detaining authority and controverted the grounds projected and pleaded that the detenu is a person indulged in criminal activities prejudicial to the maintenance of peace and public order and his involvement in the criminal activities repeatedly justify in drawing the inference that there is every chance for WPCR 347/2017 6 perpetuating similar instances disturbing public order affecting the public at large. It is further contended that the detenu is a hardcore criminal involved in anti- social activities creating terror and threat to the society and so to control it and to keep a vigil over his anti-social activities to maintain public order, and also to prevent such illegal and anti-social activities in future, after complying with all the procedural formalities contemplated under the Act, and that too after safeguarding the rights of the detenu the detention order was issued and there was absolutely no violation of any of the provisions of KAAPA or infringement to the personal rights of the detenu and hence the challenge raised against the impugned order is only to be rejected. An order of detention under Section 3 of KAAPA can be passed only against a person who is a Known goonda or a Known rowdy. It is equally important to note that only if such person is likely to indulge in anti-social activities affecting public order and his detention is necessary to prevent such WPCR 347/2017 7 activities a detention order can be passed. Here in this matter the detaining authority passed the order considering him as 'Known rowdy'. The definite contention of the detenu is that he does not fall under the definition of Known rowdy and hence the order is illegal. Whether the order under challenge suffers from any illegality is the question mooted for consideration. Before addressing the challenge, we feel that it is proper to reiterate the provisions of KAAPA, which are quite relevant for disposal of this petition as under:
2. Definitions.- (a) 'anti-social activity' means acting in such manner as to cause or is 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 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 (c), (e), (g), (h), (i),
(l), (m),(n),(q), (qb) and (s) of this section;
2. (f) 'detention order' means an order made under section 3;
(The order of detention was passed against the detenu treating him as a person coming under the definition of WPCR 347/2017 8 'known rowdy' and 'rowdy'.) Section 2(p) of KAAPA defines 'known rowdy' as :
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
(ii)made guilty, by a competent court at least twice for any offence of the nature mentioned 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 reason of a family dispute or 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 WPCR 347/2017 9 occurred 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 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 committed 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 WPCR 347/2017 10 whether a person is a known rowdy;
2 (t) '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 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 Explosives 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, except those punishable with less than one year of imprisonment; or
(iii)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.
8. Section 3 of the Act deals with the power of the detaining authority to issue orders to achieve the intention of the Act to prevent or control anti-social activities for the safety of general public and to save them from threat, terror and nuisance. It reads as :
"3. Power to make orders for detaining WPCR 347/2017 11 Known Goondas and Known Rowdies.- (1)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 prevent 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 be detained.
(2) If having regard to the circumstances prevailing, or likely to prevail in any area, the Government, if satisfied that it is necessary so to do, may, by order in writing, direct that during such period as may be specified in the said order, the District Magistrate having jurisdiction may exercise the powers under sub-section (1) in respect of such persons residing within his jurisdiction or in respect of such persons not so resident who have been indulging in or about to indulge in or abet any anti-social activities within such jurisdiction.
(3)When any order is made under this section by the authorised officer under sub-section (2), he shall forthwith report the fact to the Government and the Director General of Police, Kerala, together with a copy of the order and supporting records which, in his opinion, have a bearing on the matter and no such order shall remain in force for more than 12 days, excluding public holidays, from the date of detention of such Known Goonda or Known Rowdy, unless, in the meantime, it has been WPCR 347/2017 12 approved by the Government or by the Secretary, Home Department if generally so authorised in this regard by the Government."
9. As referred above, the detaining authority has reckoned five cases committed by the detenu in five separate instances within a span of seven years to satisfiy that he is a person coming under the definition of 'known rowdy' out of which the defacto complainants in two cases are police perssonel. The first case is Crime No.826/2011 of Punnapra Police Station registered for the offences under sections 143, 147, 148, 149, 294(b), 333, 427 and 307 of Indian Penal Code. At present, the case is pending before the Addl. Sessions Court-II, Alappuzha as SC No.947/2013. The de facto complainant is one Prasad, the then Additional Sub Inspector of Punnapra Police Station. In Crime No. 38/2015 registered for the offences under Sections 143, 147, 148, 149, 294(b), 332, 307 IPC also the de facto complainant is the then Additional Sub Inspector of Police, WPCR 347/2017 13 Punnapra. This case is also pending as S.C. No.955/2016, before the Addl.Sessions Court-III, Alappuzha . So in Crime No. 826/2011 as well in Crime No. 38/2015, the victims/de facto complainants are Police Officials and on their complaints the cases were registered. The learned counsel for the detenu vehemently argued that since complaints were initiated on the reports of Police officers these cases cannot be considered for passing the detention order in view of the specfic bar under Section 2(p)(iii) of KAAPA and inclusion of those cases clearly indicate non-application of mind of the detaining authority . It is pertinent to note that both the police officials are the injured in the respective cases and they sustained injuries along with the other police personnel while discharging their official duties. The records reveal that the detenu and others with the intention to deter them from discharging their official duty attacked them with deadly weapons and attempted to cause their death. As they sustained serious injuries in the attack, they were rushed to WPCR 347/2017 14 the hospital and admitted for treatment. The crimes in the respective cases were registered on the basis of the statements recorded in accordance with the provisions of law . The first incident was in the year 2011 and the second one was in the year 2015. The offences alleged in both the crimes are coming under Chapters VIII, XVI, and XVII of the Indian Penal Code.
10. But the question to be looked into is whether the detaining authority could place reliance on the cases initiated on the complaints of the Police Officers to bring the detenu within the meaning of 'Known rowdy'. The learned counsel for the petitioner strenuously argued that the manner in which the detenu is detained depriving his liberty pursuant to the above cases is quite illegal as there is a clear bar under Section 2(p)(iii) of KAAPA in reckoning cases initiated on the reports of police officers. As mentioned earlier, it is true that the complaints were initiated on the intimation given by the police officers, WPCR 347/2017 15 who sustained injuries in the attack. KAAPA is an enactment introduced to provide for the effective prevention and control of anti-social activities by miscreants who have no respect towards law. Every citizen has a right to live in the country in a peaceful atmosphere. The police personnel are duty bound to see that such an atmosphere is maintained and they have to prevent illegal activities and unruly behaviour of persons indulged in anti-social activities for the welfare of the public at large.The documents produced along with the detention order would show that in Crime No.826/2011, the police officials were present to maintain law and order situation in the premises of a church, where a festival was going on. The detenu including some other miscreants have created law and order situation there and when the ASI and his team were discharging their duty to maintain law and order and to create a peaceful atmosphere for the smooth conduct of the festival, they were brutally attacked by the detenu and others. The ASI who sustained WPCR 347/2017 16 injuries was rushed to hospital along with other injured police officials where they had to undergo treatment as an inpatient and intimation was passed by the hospital authorities to the police station and the statements of the injured were recorded and the case was registered against the detenu and the co-indictees.The name of the detenu was seen recorded in the FI statement given by the injured police officer. So the ASI who sustained injuries had given FI statement before the authorities about the offences committed by the detenu and on the basis of the complaint lodged by him, the first case was registered against the detenu.
11. In Crime No.38/15 (SC 230/16) the police officials sustained injuries when they tried to save certain passengers who were wrongfully restrained and threatened by the detenu and the co-indictees. The police team rushed to the spot to save them from the clutches of the detenu and his associates on getting information but they were WPCR 347/2017 17 wrongfully restrained from discharging their duties by the detenu and the other accused and brutally attacked with the intention to murder them. Crime No.38/15 was also registered on the statement of the police official, the then A.S.I. of Police, Punnapra. His statement was seen recorded at 9 p.m. on the very same day, while he was undergoing treatment in the Medical College, Alappuzha.
12. Of-course, in these two crimes, the defacto complainants are the Assistant Sub Inspectors of Police. The complaints were preferred by them as they sustained injuries in the attack by the detenu and the co-accused and they had given statements while undergoing treatment in the hospital. It is significant to note that the injured though police officers are the two victims in the attack by the detenu. They are two individuals/ human beings. Just because of the fact that they are police officers, they do not cease to be human beings. The provisions of this Act will no way curtail the rights of the Police Officers. At no stretch WPCR 347/2017 18 of imagination it could be construed that the words employed in Section 2(p) (iii) that "complaints initiated by persons other than police officers" would mean that when police officers are attacked and complaints are registered against the assailants those cases shall not be reckoned for passing an order under Section 3 of KAAPA for issuing detention order against the persons who are repeatedly indulging in criminal activities causing threat, fear, nuisance and disturbance to the society at large. In fact, the police officers are in a better position than ordinary citizen as they were prevented from discharging their official duty. In the course of that they sustained injuries. The argument advanced by the learned counsel for the petitioner, if accepted, would mean that even if police officers are assulted any number of times, the assailants could not be brought to book under the KAAPA. The intention of legislature could never be so. Clause (iii) of Section 2 (p) of KAAPA would only indicate misuse of powers by police WPCR 347/2017 19 officers and to safeguard the interest of detenu . It appears that in both these incidents while the deteneu along with the co-assailants were creating threat and fear in the public, the duty bound police personnel attempted to prevent them and avert causing terror and threats to public at large by them and tried to maintain law and order at the respective places, but they were wrongfully attacked with deadly weapons and attempted to murder them. In fact, the records would indicate that the detenu is a dangerous person, who is involved in prejudicial activities and will not spare even police officials who are supposed to protect law and order situation for the welfare and security of the general public, which is of prime importance and that the detenu is a person who has no respect towards law and order. The embargo in Section 2(p)(iii) of KAAPA does not mean to say that complaints lodged by police officers who sustained injuries in an attack by the detenu, which resulted in launching of prosecution against the assailants cannot be WPCR 347/2017 20 recokned to pass a detention order to bring them under the definition of known rowdy or Known goonda. The intention of legislation could only be to avoid or prevent misuse or expolitation of the powers of Police personnel and it could never be to discard the complaints of Police officers when they themselves become victims in the attack by such miscreants which is quite often now a days. So, it is not correct to cocnlude that these two crimes could not be recokned so as to bring the detenu within the sweep of Section 2(p)(iii) of KAAPA and consequently to pass an order under Section 3 of KAAPA. So at any cost, it cannot be construed that the detaining authority with non-application of mind disregarded the provisions of the Act and passed the order of detention against the detenu. A hyper technical approach is not possible, though preventive detention is preventive and not punitive.
13. An order of detention under Section 3 of KAAPA can be passed against a person who is a 'known goonda' or a WPCR 347/2017 21 'known rowdy'. For that, three separate instances not forming part of same transaction within a period of 7 years need to be reckoned, but here five cases have been reckoned by the detaining authority on the basis of the report of the sponsoring authority. It is contended by the respondents that in the year 2007, Crime No. 293/2007 was registered under Section 107 Cr.P.C. but subsequently it was dropped. Therafter, on 7.8.2009, a warning was issued against him under Section 15(1) of the KAAPA. Still then, he was continuing with anti-social activities as revealed from the records.
14. The records further reveal that his last prejudicial activity was on 19.10.2016 in Crime No.955 of 2016. The proposal to pass the detention order by the sponsoring authority to the detaining authority was on 3.4.2017 and the detention order was passed on 17.4.2017. The learned counsel has argued that there is a gap of about 6 months in passing the order of detention and there is no nexus WPCR 347/2017 22 between these dates and hence, there was no necessity to pass such an order after an inordinate delay. As mentioned above, the last prejudicial activity by the detenu was on 19.10.2016 but he could be arrested only on 02.04.2017 and the proposal for detention order was made immediately that is on the next day on 03.04.2017. It was specifically pointed out in the report that there was likliehood of him indulging in criminal activities causing threats to the life of public when released on bail. The offences alleged against the detenu in the last case are coming under Chapters XVI, XVII, XXII of Cr.P.C. and offence under the Arms Act is also involved. Therefore on the basis of cogent materials anticipating his release or likelihood of his release on bail, to protect the interest of the general public, which is of prime importance the order was issued and executed the order on 26.05.2017. The sponsoring authority made it clear in the report and the fact that the detenu was in judicial custody while the proposal was made was known to the detaining WPCR 347/2017 23 authority. The subjective satifaction of the detaining authority on the basis of the sequence of events committed by the detenu prompted to hold that the live nexus between the prejudicial activity and the order of detention was not snapped or broken so as to pass the order of detention. Non-application of mind by the detaining authority could be attributed only if there was long unexplained interval between the offending acts committed by the detenu and the detention order. Here, there is no such situation as clear from the records. We strongly feel that insinuation levelled against the authorished authorities by the detenu is without any merits. Therefore, we are of the considered view that Ext. P1 order is not at all vitiated by non-application of mind by the detaining authority.
15. The learned counsel for the detenu has also argued that the detention order is not supported by valid grounds and it was passed without application of mind. It is pertinent to note that the detaining authority has taken into WPCR 347/2017 24 consideration of the cases that he had committed on various dates from the year 2011 till 2016. It is also significant to note that the offences alleged against him are included under Chapters XV, XVI, XVII and XXII of IPC and the provisions of the Arms Act, 1959. Out of the five cases, four cases are pending trial before the Additional Sessions Court, Mavelikkara and investigation is well in progress in the last crime registered against him on 19.10.2016 .
16. KAAPA is enacted to prevent as well to have effective control over anti-social activities of persons indulged in such activities, to protect the community or the public at large free from threat or danger by the unruly behaviour of those persons. Quarrel, fight, clash or assault between people for some reason or other, are quite common in a society though a major group of people wish to live in harmony and peace. Still issues are there and cases are being registered by police though their prime duty is to prevent such instances. When anti-social activities are WPCR 347/2017 25 caused by a person repeatedly which seriously cause disturbance, threat, feeling of insecurity, danger etc. to a society at large or to the people of the locality, Section 3 of KAAPA gives power to the detaining authority to pass an order to prevent it. The words employed in the relevant provision 'it is necessary so to do' contemplates objective and subjective satisfaction of the detaining authority to pass such stringent orders curtailing the freedom of an individual to a certain extent, for the society at large. As the prime intention of the Act is to prevent or control anti-social activities by such persons who fall within the sweep of 'Known goonda' or 'Known rowdy', for the safety of the public, the detaining authority is vested with power to take tough and stringent decisions giving prime importance to the welfare of society than the private right of an individual by putting him behind the bar without trial as a preventive measure for the period stipulated in the Act. As preventive order is passed on suspicion, the criminal antecedents of the WPCR 347/2017 26 person affecting public order or disturbing the community, enable the detaining authority to arrive at subjective satisfaction. In Crime No.1040/2013, the victim is even a minor and the allegation is that the detenu has attempted to murder him along with the co-indictees as he opposed peddling of narcotic items and drugs by the detenu in his locality. The subjective satisfaction of the detaining authority that the detenu is dangerous to the life of the community as a whole, is clearly discernible from the order, based on his past conduct and incidents involved by him. In Ext.P1 all the cases have been narrated in detail and details of the cases were forwarded as Exts.P4 to P8 along with Ext.P2 report of the sponsoring authority. It is revealed that the detenu is indulged in prejudicial acts for a long time and as he has become a threat to the society, the sponsoring authority recommended preventive detention and the detaining authority on subjective satisfaction so as to safeguard the interests of the Society passed the order. The WPCR 347/2017 27 argument of the learned Counsel for the detenu that Ext.P1 is not supported by valid grounds cannot be accepted as the details of all the cases in which the detenu had involved are narrated in detail and it was considered after meticulous evaluation. It is further argued that the order is vitiated as all the documents relied on by the authority to pass the order were not furnished to him and there is non
-compliance of Section 7 of KAAPA.
Section 7 of KAAPA reads as follows:
(1)When a person is arrested in pursuance of a detention order, the officer arresting him shall read out the detention order to him and give him a copy of such order. (2)The grounds of detention, specifying the instances of offences, with copies of relevant documents, as far as practicable, on the basis of which he is considered as a "known goonda" or "known rowdy" and giving such materials relating to his activities on the basis of which his detention has been found necessary, shall be furnished to him as soon as possible nevertheless, in any case, within five days of detention and he shall also be informed in writing, under acknowledgement, of his right to represent to the Government and before the Advisory Board against his detention".
WPCR 347/2017 28
But proviso 4 to section 7 reads as:
"4)The order of detention shall not be deemed to be invalid merely because one or more of the facts or circumstances cited among the grounds are vague, non-existent, irrelevant or invalid for any reason whatsoever and such order shall be deemed to have been made by the Government or the Authorised officer after having been satisfied about the need for detention with reference to the remaining facts and circumstances, provided that the minimum conditions for being classified as a known goonda or known rowdy are satisfied."
17. A reading of this provision itself would show that the order shall not be deemed to be invalid merely because a copy of relevant document was not served on him. Section 7 only says that copies as far as practicable shall be served on him .But of-course that does not show that the rigour in the procedure laid down can be diluted by the authorities on the other hand the mandatory provisions and procedural safeguards have to be strictly followed .
18. A Full Bench of this Court in Stenny Aleyamma Saju v. State of Kerala and Others [2017(3)KHC 517] in which one of us was a member (P.R. Ramachandra WPCR 347/2017 29 Menon, J.) held as follows :
''So as to express/record satisfaction of the detaining authority twin circumstances have to be fulfilled. First one is the 'objective satisfaction' that the persons concerned is a 'known goonda' in terms of S.2(o)(ii) of the Act or 'known rowdy' in terms of S.2(p)(iii) of the Act. The second one is the 'subjective satisfaction', of course, based on the report of the Police Officer not below the rank of Superintendent of Police and such other materials that the detenu has pursued 'anti-social activities' by virtue of his past conduct referred to and that there is chance for perpetuating similar instances detrimental to the society at large, affecting the 'public order' which hence requires to be prevented by passing an order of detention.''
19. In the instant case, we also do not find any serious procedural irregularities as detention order, with grounds for detention, was supplied to him on acknowledgment to submit a meaningful and elaborate representation before the Advisory Board. So, the argument of the learned counsel that the precious right guaranteed by the Constitution under Article 22(5) is violated is not correct.
20. In Vijay Narain Singh v. State of Bihar [AIR 1984 SC 1334], the Supreme Court held as under :- WPCR 347/2017 30
"The Court should examine the case without being overwhelmed by the gruesomeness of the incident involved in the criminal trial. It is well settled that the law of preventive detention is a hard law and therefore it should be stritly construed. Care should be taken that the liberty of a person is not jeopardised unless his case falls squarely within the four corners of the relevant law''.
21. In Sama Aruna v. State of Telengana and another [AIR 2017 SC 2662], the Apex Court held that:
"Detention order must be based on reasonable prognosis of future behaviour of person based on his past conduct in light of surrounding circumstances. Live and proximate link that must exist between past conduct of person and imperative need to detain him must be taken to have been snapped in this case. Detention order which is founded on stale incident must be regarded as order of punishment for crime, passed without trial, though purporting to be order of preventive detention. Essential concept of preventive detention is that detention of person is not to punish him for something he has done but to prevent him from doing it."
22. On a meticulous evaluation of the materials available with the principles laid down in the decisions referred above, we are unable to accept the arguments WPCR 347/2017 31 advanced by the learned counsel for the petitioner that Ext.P1 is liable to be set aside. On the other hand, we are of the considered view that the detaining authority, on objective as well subjective satisfaction on the basis of the materials placed by the sponsoring authority, passed the order of detention to safe guard the interests of the society and to maintain public order and it is strictly in conformity with the relevant provisions of KAAPA. In view of the above reasons, we find that the order of detention is perfectly justifiable and the contentions raised against the same are devoid of merits.
Dismissed Sd/-
P. R. RAMACHANDRA MENON JUDGE Sd/-
SHIRCY V.
JUDGE
ks. True copy
P.S. (Hr.Gr.)To Judge
WPCR 347/2017 32
WPCR 347/2017 33