Kerala High Court
Suryamol vs State Of Kerala on 11 February, 2011
Bench: K.M.Joseph, M.L.Joseph Francis
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 472 of 2010(S)
1. SURYAMOL, AGED 25 YEARS,
... Petitioner
Vs
1. STATE OF KERALA, REP.BY SECRETARY
... Respondent
2. THE DISTRICT COLLECTOR, ERNAKULAM.
3. THE SUPERINTENDENT OF POLICE,
For Petitioner :SRI.SAJIV.C.K.
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :11/02/2011
O R D E R
K.M. JOSEPH &
M.L. JOSEPH FRANCIS, JJ.
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W.P.(Crl).No. 472 of 2010 S
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Dated this the 10th day of February, 2011
JUDGMENT
Joseph, J.
The petitioner has approached this Court seeking the following reliefs:
" (i) Call for the records pertaining to Exts.P2 and P4 and quash the same by issuing a writ of certiorari.
(ii) Issue a writ of habeas corpus or any other writ, order or direction, directing the 3rd respondent to produce the petitioner's husband Balu, S/o. Pavithran, Ponothu house, Kuzhupilly, Munambam, Ernakulam District before this Hon'ble Court.
(iii) Issue a writ of mandamus or any other writ, order or direction, directing the respondents to dispose of Ext.P3 W.P.(Crl).No. 472 of 201 2 representation submitted by the petitioner under Kerala Anti Social Activities (Prevention) Act 2007.
(v) Call for the records pertaining to Ext.P6 and quash the same by issuing a writ of certiorari.
2. Briefly the case of the petitioner is as follows. Petitioner's husband has been detained on 7.10.2010 pursuant to Ext.P6 order under the Kerala Anti Social Activities (Prevention) Act, 2007 (hereinafter referred to as the 'KAAPA').
3. We heard learned counsel for the petitioner and the learned Senior Government Pleader.
4. The learned counsel for the petitioner would address before us the following arguments. He submits that the order of detention is dated 20.4.2010. However, the order was executed only on 7.10.2010. The last occurrence, which is relied on, took place on 28.1.2010. The live link has been lost and therefore there is no basis at all to sustain W.P.(Crl).No. 472 of 201 3 the detention. There is unexplained delay. Learned counsel for the petitioner would rely on the decisions reported in State of Kerala v. Glaxo Smithkline (2010 (1) KLT SN 73) and Soja Beegum v. Additional Chief Secretary to Government (2009 (4) KLT 550). It is contended by the learned counsel for the petitioner that no steps were taken under Section 6 of the Act.
5. It is next contended that certain documents were not supplied to the detenu in the language with which he is familiar. It is pointed out that the report of the Superintendent of Police was supplied to him in Malayalam. In the documents, which were supplied to him in English, it is stated that it was read over and explained to him in Malayalam. Therefore, it is contended that this is a case where the authorities were aware that the detenu was not familiar with English language. The report of the Circle Inspector of Police to the Superintendent of Police and also the order of detention were not given in Malayalam. It is also pointed out that in fact in one out of the five W.P.(Crl).No. 472 of 201 4 cases, which is the basis for taking action against the detenu, though the detenu has been convicted, the matter is pending in appeal. In yet another case it is submitted that the detenu has been acquitted.
6. Per contra, the learned Senior Government Pleader submits that there is no delay as such in executing the order. If at all there is delay, it is attributable to the detenu absconding. He would contend that it is not mandatory that steps should be taken under Section 6 of the Act. For this proposition he placed reliance on the decision of the Apex Court in Bhawarlal Ganeshmalji v. The State of Tamil Nadu (AIR 1979 SC 541) and in Shafiq Ahmad v. District Magistrate, Meerut (AIR 1990 SC 220). In answer to the contention that the detention is flawed on account of Malayalam version of the report of the Circle Inspector and the order of detention not being served on the detenu, he would contend that the Detaining Authority has acted on the report of the Superintendent of Police and it is admitted that the report of the Superintendent of Police has been given W.P.(Crl).No. 472 of 201 5 in Malayalam language. No prejudice is caused as the whole purpose of giving the version in the language with which the detenu is familiar is to enable the detenu to prefer a representation, he submits.
7. As far as the order of detention is concerned, not being served in Malayalam, he would point out that this is a case where the grounds of detention were supplied in Malayalam. He placed reliance on the decision of the Apex Court in Ramesh Roy v. The State of West Bengal (AIR 1972 SC 1678). The Senior Government Pleader would contend that the statements contained in the counter affidavit of the second respondent in paragraph 16, which we extract below, would show that the Officers had made sincere efforts to arrest the detenu, but he was absconding on all those days.
"16. It is submitted that the detention order No.M7/21779/10 dated 20.4.2010 was executed on 7.10.2010. Even though number of search were conducted by police on 24.4.10, 25.4.10, 30.4.10, 5.5.10, W.P.(Crl).No. 472 of 201 6 8.5.10, 20.5.10, 29.5.10, 4.6.10, 10.6.10, 16.6.10, 30.6.10, 5.7.10, 15.7.10, 29.7.10, 10.8.10, 25.8.10, 1.9.10, 15.9.10, 25.9.10, 2.10.10 and 6.10.10 the detenu could not be traced out as he absconded from the locality evading arrest. During the period Sri.Balu is not seen involved in any cases within the Ernakulam Rural limits. From the above it is seen that Police have taken earnest efforts to apprehend Sri.Balu and hence delay in execution of detention order is caused by the willful act of the detenu by absconding and evading arrest and hence the live link between the order of detention and the need for detention is not broken as alleged.
8. In answer to these contentions, the learned counsel for the petitioner would contend that the decisions of the Apex Court relied on by the learned Government Pleader are distinguishable on facts. According to him, the Apex Court took the view that steps under the provisions, which are akin to Section 6 of the Act, need not be complied with for the reasons contained in the facts of those cases. W.P.(Crl).No. 472 of 201 7 In those cases the general diary was produced before the Court to substantiate the case of the State that raids were conducted from time to time to apprehend the detenu. It is also noted that there were no property belonging to the detenu, which could be proceeded against. He therefore made a submission that the general diary may be called for.
9. The learned Senior Government Pleader stated that the general diary may not be useful as according to him the procedure which is being adopted in the case of detention under the Act is that once the order of detention is passed, it will be transmitted to the concerned authority and the concerned authority maintains separate file, which would contain the relevant particulars as to the steps taken to apprehend the detenu.
10. We directed the learned Senior Government Pleader to make available the general diary, which was made available and the contention of the Government Pleader that the general diary does not W.P.(Crl).No. 472 of 201 8 contain any entry to show that the officers made attempts to apprehend the detenu in conformity with the case set up by the State in paragraph 16, which we have already extracted, is correct. On the contrary, in the files which were made available, the learned Government Pleader would point out that on 8.10.2010, which is the next day after the order of detention was executed, the officer made a report referring specifically to all the dates contained in the counter affidavit of the second respondent, which we have referred to. The files also separately contain the reports made by the concerned officers to the effect that they have gone to the residence of the detenu to apprehend him, but they had to return empty handed.
11. It is in this context that the learned counsel for the petitioner drew our attention to the significance and relevance of the general diary. According to him, the general diary is intended to reflect all the things that happen in a police station. The learned counsel for the petitioner also drew our attention to the decision of the Apex Court in W.P.(Crl).No. 472 of 201 9 Sadhu Singh v. State of Uttar Pradesh (AIR 1978 SC 1506) to emphasise the significance of the entries contained in the general diary. According to him, the case of the State as contained in the counter affidavit, which we have referred to, that the officers made attempts on various dates, which is sought to be fortified with reference to the reports made by the officers and which are not contained in the general diary, is clearly unacceptable. He submits that this Court should not draw any assurance from the materials relied on by the State.
12. Learned counsel for the petitioner also sought to refer to Ext.P5, which purports to be the order sheet in one of the criminal cases, which is relied on by the Detaining Authority. Ext.P5 reads as follows:
"C.P. 22 of 2010 Taken on file as C.P.1/10 for offence punishable under Sec.143, 147, 148, 341, 326 and 307 r/w, 149 I P C and 27 of Arms Act. Issue summons to the accused posted to 26.4.2010.
W.P.(Crl).No. 472 of 201 10 26.4.2010 : All accused absent. Applied. Appearance. No further time. To 24.5.2010.
24.5.2010 : All accused absent. Applied. Allowed for appearance on 31.5.2010.
31.5.2010 : All accused absent. No application. No representation. Issue NBW to 18.6.2010.
18.6.2010 : All accused absent. Repeat NBW to accused.
29.6.2010.
29.6.2010 : All accused absent. Repeat NBW and notice to sureties for NBW and return of warrant 29.7.010.
29.7.2010 : A1 to A4 present. Petition filed. Warrant recalled. A5 absent. Repeat NBW to 20.8.2010 20.8.2010 : All accused present. Case is committed to Court of Sessions, Ernakulam U/s. 209 Cr.P.C. Therefore he would contend that it should be remembered that the order of detention is dated 20.4.2010. The first date, which is reflected in Ext.P5, is 26.4.2010. Thereafter it is pointed out that in the said W.P.(Crl).No. 472 of 201 11 day, the detenu was the 5th accused in the said case. All the accused were on bail. Counsel for the accused prayed for time, which was apparently allowed, and the matter stood posted to 24.5.2010. On the said day, again a request for time was made. It is only thereafter on the next day, i.e. on 31.5.2010, the court issued non-bailable warrant. It was not executed and non-bailable warrant was repeated on the next date of posting. He would point out that the accused ultimately did appear before the Court on 20.8.2010. If the officers were serious about executing the order of detention, they would certainly have detained the accused atleast on 20.8.2010, argues the counsel. There is delay of more than 40 days after 20.8.2010 in arresting the accused on 7.10.2010. Thus this is a clear case where the detention of the detenu was not really needed.
13. The learned Senior Government Pleader, in answer to these contentions, would contend that it must be noted with reference to the entries in Ext.P5 that the accused had not come to the Court on any of W.P.(Crl).No. 472 of 201 12 the days except on 20.8.2010. In other words, if at all there was any lapse, which could be attributable it can be with reference to a single day. He would point out that the decision which is relied on by the petitioner viz. Soja Beegum (supra), that was a case where, there were three cases, the detenu had appeared on as many as on ten occasions and there was gross laches on the part of the Authorities in apprehending the detenu, despite the fact that they had opportunity to apprehend the detenu. Therefore, the two cases cannot be compared, he submits.
14. It is settled law that every order of detention based under any law of preventive detention is grounded in a jurisdiction of suspicion and the whole object of preventive detention is to prevent the person from doing any undesirable activity which in the context of the Act is an anti-social act. Every order of detention, needless to say, would constitute an encroachment upon the personal liberty of the person detained and personal liberty of a person is a hallowed fundamental right which is enshrined in Article 21 of the Constitution. W.P.(Crl).No. 472 of 201 13
15. However, preventive detention becomes inevitable in certain contingencies and the Constitution itself permits preventive detention subject to the safeguards which are engrafted in the Constitution and the laws which are made by the concerned Legislature providing for preventive detention. Whichever is the law providing for preventive detention, a golden thread runs through all such laws, namely, that the order of detention must be executed without any delay. The rationale behind the said principle is that the very purpose of the order of detention is to immediately apprehend the person and detain him so that undesirable conduct apprehended of him can be obviated and the societal concern addressed. Any undue delay will rob the order of detention itself of the purpose which underlies it. No doubt, this does not mean that if the detenu absconds he could defeat the order of detention by merely enlisting the aspect of delay in his support. Every case must be turn on its facts and there cannot be any absolute principle as to the number of days of delay which can defeat an order of detention.
W.P.(Crl).No. 472 of 201 14
16. In this case the order of detention is dated 20.4.2010. The maximum period of detention permissible under law is six months. The order of detention is carried out admittedly only on 7.10.2010. Five months and nearly 17 days have elapsed in the matter of executing the order of detention.
17. There is no dispute that there is no entry in the general diary to show that efforts were made to procure the presence of the detenu. Normally every act which takes place in a police station will be entered in the general diary. Necessarily the general diary should be maintained on a chronological basis. It would be entered from time to time as and when various events occurr and various acts are done by the concerned police officers. If an entry were made, for instance in the general diary to the effect that police officers had gone to carry out the order of detention in this case, it would have gone a long way to assure this Court that the detenu had indeed absconded and efforts made to apprehend him. No doubt, the case of the State is that it is W.P.(Crl).No. 472 of 201 15 maintaining a separate file. We are of the view that it would be more desirable that the State maintains the record of its officers' acts in the general diary itself as it would remove the shadow of any doubt, which may otherwise be cast on the claim of the State that it had made sincere efforts to trace out the detenu. Since the entries in the general diary are made from time to time, the possibility of making up records would certainly be reduced to the minimum.
18. Section 6 of the Act in fact contemplates a situation where the order of detention cannot be executed because the detenu is absconding. It is no doubt true, in the decision of the Apex Court reported in Shafiq Ahmd, (supra) the Apex Court has taken the following view:
"If in a situation the person concerned is not available or cannot be served then the mere fact that the action under Section 7 of the Act had not been taken, would not be a ground to say that the detention order was W.P.(Crl).No. 472 of 201 16 bad. Failure to take action even if there was no scope for action under Section 7 of the Act, would not be decisive or determinative of the question whether there was undue delay in serving the order of detention. In this case even though no warrant under Section 7 had been issued in respect of the property or person of the petitioner, it cannot be said that the respondent was not justified in raising the plea that the petitioner was absconding. The petitioner has no property and so no order under Section 7 could be made."
Therefore, it is a case where the detenu had no property. It is also found that the person concerned is not available. In Shafiq Ahmd, (supra), which is under the National Security Act, the court noted that the detenu did not own any property and the case of the Government was that the detenu was not available for arrest and therefore steps could not be taken under Section 7 of the National Security Act, which corresponds to Section 6 of the KAAPA.
W.P.(Crl).No. 472 of 201 17
19. A Division Bench of this Court, in Soja Beegum (supra,) has also dealt with the contention based on delay and held in paragraphs 8, 9 and 10 as follows:
"8. Detention is ordered on the basis of three cases. In all the three cases, prosecution was pending and the accused was on bail granted by the courts. Exts.P7, P8 and P9 are certified copies of the proceedings paper of the courts, which show the sequence of events that had taken place in those three cases. The learned counsel for the petitioner points out and we on verification find that between 31.3.2008 and 5.8.2009, the detenu had appeared before the Courts concerned on 12.12.08, 21.3.2009, 21.4.2009 and 8.7.2009 (see Ext.P7), 4.3.2009, 12.5.2009 and 10.7.2009 (see Ext.P8) and 11.7.2008, 25.11.2008 and 6.12.2008 (see Ext.P9). Thus it is seen that during the relevant period as many as on ten different occasions the detenu had appeared before the courts concerned where the prosecutions against him were pending. It will be apposite to note that such appearances were in the very W.P.(Crl).No. 472 of 201 18 three cases which were relied on by the detaining authority to justify the preventive detention of the detenu.
9. The learned A.D.G.P. contends and there are averments to that effect in the counter affidavit filed by the respondents, that the detenu was absconding during the relevant period and he had made himself scarce. It became impossible to execute the warrant against him. But all these contentions fall to the ground when we note that the detenu was faithfully appearing before the courts where the prosecutions were pending in these very cases, in as many as 10 intervening dates. In these circumstances, we do not find much merit in the contention that it was the detenu who made it impossible to execute the warrant of arrest. No better materials are placed before this court to come to a conclusion that there was any contumacious conduct on the part of the detenu, which made execution of the warrant impossible.
10. It is contended that the authorities concerned had taken all reasonable steps to ensure that the detenu is W.P.(Crl).No. 472 of 201 19 arrested. Elementary prudence must have suggested to the detaining and executing authorities that the best place to locate the detenu would be the courts in which the three cases in which he was enlarged on bail were pending. He was on bail in such cases and he was bound to appear before such courts. If he were not appearing in such cases, the courts concerned could have been appried of the facts and could have been requested to procure the presence of the detenu by initiating proceedings against the sureties. It passes one's comprehension as to why the detaining and executing authorities did not look for the detenu in these three cases in the courts concerned. If it were to be said that they omitted to take into account this possibility and the opportunity, that clearly shows that there was no reasonable and worthwhile attempt to trace the detenu. No serious attempt occurred to execute the warrant, it is evident."
In fact in that case the Government had taken steps under Section 6. But the Court did not find the steps taken sufficient to justify the case W.P.(Crl).No. 472 of 201 20 of the State in the matter of delay in executing the order. We must notice certain salient features in this case. As already noted, the order of detention is dated 20.4.2010. No steps have been taken under Section 6 of the Act. In this regard we must notice that Ext.P2 produced by the petitioner dt.20.4.2010 issued by the Detaining Authority specifically states that if the detenu is found absconding the officer may submit the action taken report to the Detaining Authority by initiating action against the accused so as to proceed further under Section 6 of the Act.
20. Learned Government Pleader does not dispute the fact that no action was taken under Section 6 of the Act nor was any report made by the Executing Authority to the Detaining Authority for the need to take any action under Section 6. The State does not have a specific case that the detenu did not have any property. In fact the learned counsel of the petitioner would point out that the petitioner has fractional undivided right in a property. One of the methods W.P.(Crl).No. 472 of 201 21 mentioned in the Act in conjunction with Sections 84 to 87 of Cr.P.C. is to attach property of the detenu to submit himself for carrying out the order of detention. In Shafiq Ahmad (supra) (1989 (4) SCC 556) and in Shafik Ahmad (supra) (AIR 1990 SC 220) the Apex Court found that the inaction under the provisions akin to Section 6 of the Act was not fatal for the reason that the detenu in the said case was not seized of any property.
21. Unlike the said case, in this case the State itself does not have a specific case that the detenu did not have any property. Of course, Section 82 of the Cr.P.C. contemplates a procedure by which the detenu could be called upon to appear on a particular date. Failure on his part to comply with such an order, would result in declaring him a proclaimed offender. Section 43 of Cr.P.C. enables any person to arrest a proclaimed offender. But we must notice the argument of the learned Senior Government Pleader that any such view may not square with the requirement under Section 7(1) of the Act, which reads as follows:
W.P.(Crl).No. 472 of 201 22
Section 7: Grounds of order of detention to be disclosed:- (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."
Therefore, he contends that if the law is interpreted to mean that any person, including a private person, could arrest the detenu the action would become susceptible to challenge on the score that the arrest was not immediately followed by reading out the order of detention and handing over a copy of the same as is contemplated under Section 7(1). Therefore he would contend that essentially what is contemplated under the law in question is that if there is property to attach, it could be proceeded with. Even if that be so, the fact remains that there is no case for the State that the detenu did not have any property and therefore proceedings under Section 6 of the Act was not taken against him.
W.P.(Crl).No. 472 of 201 23
22. We must notice that the detenu was the 5th accused in Crime No. 225 of 2007, which resulted in C.P. 22 of 2010 before the J.F.C.M. Court, Kochi and which is finally made over to the Sessions Court, Ernakulam. In the said case, as we have already noted, on 26.4.2010 the detenu was absent. He was on bail. The accused prayed for time and the matter stood posted to 24.5.2010. Again on the said day, the detenu was absent. Application was made on his behalf and the matter stood adjourned to 31.5.2010. There was no application on the said day. No doubt, on the said day non-bailable warrant was issued and the matter stood posted to 18.6.2010. Warrant was repeated on 18.6.2010 and the case was posted to 29.6.2010. On 29.6.2010 the detenu alone absconded and non-bailable warrant was issued and the case was posted to 29.7.2010. On 29.7.2010 the detenu was absent and warrant was repeated and the case was posted to 20.8.2010. On 20.8.2010 the detenu was very much present in the J.F.C.M.Court, Kochi. We must notice that in Soja Beegum (supra), the detenu was W.P.(Crl).No. 472 of 201 24 present on ten days. We must notice that the Division Bench in the said case, inter alia, held that if the detenu did not appear in such case, the court concerned could have been apprised of the facts and could have been requested to procure the presence of the detenu by initiating proceedings against the sureties. At any rate, on 20.8.2010 there is clearly a lapse on the part of the officers entrusted with the duty of apprehending the detenu. By merely raising on excuse that the detenu was absconding, the officers concerned cannot absolve themselves of the solemn duty they have to the society to urgently apprehend the detenu and detain him.
23. We must also express the view that while it is true that there is a case set up by the State in the counter affidavit, which we have already referred to, of efforts being made by the officers which is fortified with reference to the communication dt. 8.10.2010 and also reports in a separate file relating to the matter, we are not inclined to place full confidence in the said case.
W.P.(Crl).No. 472 of 201 25
24. The petitioner filed a reply affidavit denying the allegations in the counter affidavit that efforts were made to apprehend the detenu. Learned counsel would also point out that the case against the detenu was out of switching of allegiance from a political party.
25. Therefore the upshot of the discussion is that this is a case where no steps were taken under Section 6 of the Act. The fact that the State does not have any case that the detenu was without any property for proceeding under Section 6 and also the entries in Ext.P5 which betray inaction on the part of the officers in the matter of securing immediate presence of the detenu and finally the admitted appearance of the detenu on 20.8.2010 which was also for some reason ignored and went unnoticed and allowing him to remain at large for another more than 40 days all lead us to the conclusion that this is a case where continued detention of the detenue may not be justified on the principle that the link is lost. In the light of these findings, we are not going into the other contentions raised by the petitioner. W.P.(Crl).No. 472 of 201 26
26. We allow this Writ Petition. The continued detention of the detenu is not justified and we direct that the detenu, Shri. Balu, shall be set at liberty forthwith. The Superintendent of Central Prison, Viyyur is directed to set at liberty the detenu forthwith, if he is not wanted in any other case. The Registry shall communicate the direction to the Superintendent of Police, Central Prison, Viyyur for compliance.
(K.M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm