Kerala High Court
Rajan Abubacker vs State Of Kerala on 14 November, 2016
Author: V Shircy
Bench: P.R.Ramachandra Menon, V Shircy
CR
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 11TH DAY OF OCTOBER 2017/19TH ASWINA, 1939
WP(Crl.).No. 233 of 2017 (S)
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PETITIONER:
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RAJAN ABUBACKER,
S/O.ABUBACKER, KANNAKARA THEKKATHIL,
PERINGALA VILLAGE, FROM SAKKEENA MANZIL,
KAYAMKULAM MURI, ALAPPUZHA DISTRICT.
BY ADVS.SRI.C.RAJENDRAN
SRI.C.P.ANIL RAJ
RESPONDENTS/RESPONDENTS:-:
----------------------------
1. STATE OF KERALA,
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT OF KERALA (HOME DEPARTMENT),
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2. DISTRICT MAGISTRATE,
ALAPPUZHA DISTRICT - 688 001.
3. DISTRICT POLICE CHIEF,
ALAPPUZHA DISTRICT - 688 001.
4. SUB INSPECTOR OF POLICE,
KAYAMKULAM POLICE STATION,
ALAPPUZHA DISTRICT - 690 502.
5. THE SUPERINTENDENT OF CENTRAL PRISON,
THIRUVANANTHAPURAM - 695 001.
6. THE SUPERINTENDENT OF CENTRAL PRISON,
VIYOOR, THRISSUR - 680 010.
7. THE SECRETARY,
ADVISORY BOARD, KAPPA,
PADAM ROAD, ELAMAKKARA,
KOCHI - 682 026.
R1 -R 7 BY GOVERNMENT PLEADER SRI K.A. ANAS
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
08.08.2017, THE COURT ON 11-10-2017, DELIVERED THE FOLLOWING:
WP(Crl.).No. 233 of 2017 (S)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1. A TRUE PHOTOCOPY OF THE DETENTION ORDER DATED 14.11.2016.
EXHIBIT P2. A TRUE PHOTOCOPY OF THE GROUNDS FOR ISSUING THE DETENTION
ORDER DATED 14.11.2016.
EXHIBIT P3. A TRUE PHOTOCOPY OF THE FIS STATEMENT OF THE DE-FACTO
COMPLAINANT SRI.SURESH R IN CRIME NO:237/2012 OF THE KAYAMKULAM POLICE
STATION GIVEN TO THE DETENU.
EXHIBIT P4. A COPY OF THE FIR GIVEN TO THE DETENU.
EXHIBIT P5. A COPY OF THE FIS IN CRIME NO.1005/2012 OF THE KAYAMKULAM POLICE
STATION.
EXHIBIT P6. THE COPY OF SERVED ON DETENU OF THE FIR ALONG WITH FIS IN CRIME
NO:2174/2016 OF THE KAYAMKULAM POLICE STATION.
EXHIBIT P7. A COPY OF THE FIR IN CRIME NO:2175/2016 OF THE KAYAMKULAM POLICE
STATION SERVED ON THE DETENU.
EXHIBIT P8. THE COPY OF THE FIR ALONG WITH FIS IN CRIME NO.2185/2016 OF THE
KAYAMKULAM POLICE STATION SERVED ON THE DETENU.
EXHIBIT P9. THE COPY OF THE FIR IN CRIME NO.2342/2016 OF THE KAYAMKULAM
POLICE STATION SERVED ON THE DETENU.
EXHIBIT P10. A TRUE PHOTOCOPY OF THE MEMO FOR EXECUTION OF ORDER OF
DETENTION DATED 14.11.2016.
EXHIBIT P11. A TRUE PHOTOCOPY OF THE JAIL ADMISSION AUTHORISATION DATED
14.11.2016.
EXHIBIT P12. A TRUE PHOTOCOPY OF THE APPROVAL ORDER.
EXHIBIT P13. A TRUE PHOTOCOPY OF THE ORDER OF CONFIRMATION.
EXHIBIT P14. A TRUE PHOTOCOPY OF THE REPRESENTATION DT 18.05.2017.
EXHIBIT P15. THE RECEIPT ISSUED BY PROFESSIONAL COURIER DATED 18.05.2016.
RESPONDENT(S)' EXHIBITS
-----------------------
NIL
ks.
True copy
P.s. To Judge
C.R.
P. R. RAMACHANDRA MENON & SHIRCY V.,JJ.
==============================
W.P.(Crl.)No. 233 of 2017
==============================
Dated this the 11th day of October, 2017
JUDGMENT
Shircy V.,J.
The petitioner who is the father of one Mujeeb @ Veeta Mujeeb detained in Central Prison, Viyyur as a 'Known Rowdy' as per an order passed by the District Magistrate (for short 'detaining authority') under Section 3 (1)r/w 13(2) (I) & (ii) of the Kerala Anti-Social Activities (Prevention) Act (hereinafter referred to as 'KAAPA' in short) seeks to quash the order by filing this Writ Petition under Article 226 of the Constitution of India with the following reliefs:
i) To issue a writ in the nature of HABEAS CORPUS or any other appropriate writ, order or direction compelling and commanding the respondents to produce the detenu before this Honourable Court, to quash Exhibit.P1 Detention WPCR 233/2017 2 Order which was approved and confirmed by the Government and to set the detenue at liberty.
ii. to grant such other reliefs prayed for by the petitioner in the interest of justice.
2. The District Magistrate who is the 2nd respondent has issued Ext.P1 preventive detention order dated 14.11.2016 under Section 3 r/w 13( 2) (i) (ii) of KAAPA on the report of the Superintendent of Police, the 3rd respondent, and forwarded the same to the 4th respondent, the Sub Inspector of Police, who executed the detention order on 22.11.2016. The detenu was in judicial custody in Central Prison, Thiruvananthapuram in four criminal cases allegedly committed by him. After execution of the detention order, the detenu was transferred to Central Prison, Viyyur and presently he is undergoing detention in Central Prison, Viyyur in Thrissur District. Ext.P1 order was approved by the 1st respondent Government as per Ext.P12 order dated 01/02.12.2016 under Section 3(3) of KAAPA. The Government confirmed the detention order as per WPCR 233/2017 3 Ext.P13 on 06.01.2017. The detenu preferred Ext.P14 representation on 18.5.2017, but it was dismissed. Assailing the impugned order, the petitioner, who is the father of the detenu, has preferred this petition.
3. We heard Sri C. Rajendran, learned counsel for the petitioner and Sri K.A. Anas, the learned State Public Prosecutor for the respondents.
4. The denetu is involved in as many as six crimes. The detaining authority has reckoned these six cases for issuing the detention order. The detenu is placed under preventive detention from acting in any manner prejudicial to the maintenance of peace and public order on the basis of the grounds mentioned in Ext.P1 order. The details of the cases mentioned in Ext.P1 are as follows:
Sl. Police Station and Date and Time Offences Stage No Crime No. Kayamkulam, 16/02/2012 at Ss.323, 324, Final Report 1 237/2012 00.50 AM 308 IPC submitted Kayamkulam 12/07/2012 at 308,341 IPC Final Report 1005/2012 10.15 PM and S.27 submitted 2 Arms Act WPCR 233/2017 4 Sl. Police Station and Date and Time Offences Stage No Crime No. Kayamkulam, 07/08/2016 at 323, 324, Pending 2174/2016 06.30 PM 341, 506(ii) Investigation S.5 and 27 of 3 Arms Act Kayamkulam, 07/08/2016 at 427, 294(A), Pending 2175/2016 11.00 PM 308, 506 and Investigation S.5 and 27 of 4 Arms Act.
Kayamkulam, 07/08/2016 at 308, 34, S.5 Pending 2185/2016 09.30 PM and 27 of Investigation 5 Arms Act Kayamkulam, 07/08/2016 at 5, 27 of Pending 6 2342/2016 07.00 PM Arms Act Investigation
5. Out of the six cases, Crime No.237/2012 and 1005/2012 of Kayamkulam Police Station are pending for trial and investigation is in progress in Crime Nos. 2174/2016, 2165/2016, 2185/2016 and 2342/2016 of Kayamkulam Police Station. In these crimes apart from the offences under the Indian Penal Code, the offences relate to Arms Act also.
6. In the writ petition the petitioner has challenged the detention order, its approval and confirmation as quite arbitrary, illegal and unjust. Though various grounds are projected as A to R, the learned counsel for the petitioner WPCR 233/2017 5 confined his arguments to the points discussed below. The learned counsel for the petitioner has drawn our attention to the fact that out of the six cases, in four cases investigation have not been completed. According to him as those cases are only in the infant stage it cannot be reckoned for invoking Section 3 (1) r/w 13 (2) (i) &(ii) of KAAPA, as it was not found that the detenu had committed the alleged offences. Another ground set out to challenge the impugned action is that KAAPA empowers the authority to pass only two detention orders against the same person and as Ext P1 is the 4th order it is beyond jurisdiction and competence. With a view to assail the impugned action of the respondents, the petitioner has also alleged that the delay in executing the order prejudiced the detenu in having recourse for cancelling the order at the earliest opportunity. The failure to furnish legible copies especially in two crimes also caused prejudice to him. It is also submitted that the action of the respondents has violated his fundamental right WPCR 233/2017 6 enshrined under Article 22(5) of the Constitution.
7. The respondents in their turn have stoutly defended the impugned action and controverted the grounds projected and specifically pleaded that the detenu is a person involved in criminal activities and his antecedents justified in drawing an inference that there is chance for perpetuating similar instances disturbing public order affecting the public at large. The detenu is a criminal indulged in anti-social activities creating terror and disturbance to the society and so to control and to keep vigil over his anti-social activities and to maintain public order, after complying with all the procedural formalities contemplated under the Act, the order was passed safeguarding the rights of the detenu and the order was confirmed by the Government.
8. The question to be decided is whether Ext.P1 detention order suffers any illegality or arbitrariness enabling this Court to interfere with. With a view to clarify WPCR 233/2017 7 the legal position the relevant provisions of KAAPA are reproduced 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 '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 WPCR 233/2017 8 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 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 WPCR 233/2017 9 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 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),--
WPCR 233/2017 10
(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.
9. 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 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 WPCR 233/2017 11 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 approved by the Government or by the Secretary, Home Department if generally so authorised in this regard by the Government."
10. The detenu is arraigned as the accused in six cases committed by him within a span of seven years out of which, Final Report has been filed only in two cases and investigation in the other four cases are in progress. (In the counter of the 2nd respondent, it is stated that now Final Reports have been filed in two more cases). It is contended WPCR 233/2017 12 by the learned counsel for the detenu that without objective as well subjective satisfaction or application of mind the detaining authority has issued the detention order. As the detenu is undergoing incarceration in connection with those cases and no bail application has been filed the finding of the detaining authority that if he is released on bail he will indulge in prejudicial activities is against the statutory provisions and hence the order is liable to be set aside is his argument. But a reading of Section 3 (1) itself makes it clear that the detaining authority on reasonable apprehension and on satisfaction on the basis of the report of a police officer not below the rank of of Superintendent of Police to prevent any person who is habitually indulged in anti-social activities from again committing such offences detrimental to the interest of the society , to preserve peace in a locality and to ensure public order, is entitled to pass an order of detention. It is not at all necessary for the detaining authority to wait for finalization of the WPCR 233/2017 13 investigation of the case to pass an order to prevent anti- social social activities by such persons. The general aim of law being to protect the society, of-course the statutory provisions have to be strictly construed preserving the rights guaranteed to a citizen by the Constitution of India . The Apex Court in Huidrom Konungjao Singh v State of Manipur [ 2012 (7) SCC 181] held that there is no prohibition in law to pass the detention order in respect of a person who is already in custody in respect of criminal case. However, if the detention order is challenged the detaining authority has to satisfy the court that the authority was fully aware of the fact that the detenu was actually in custody and there are materials before the authority on the basis of which it could have reasons to believe that there was real possibility of his release on bail and further on being released he would probably indulge in activities which are prejudicial to public order. In the case on hand,the detaining authority has specifically stated to the vital question in the WPCR 233/2017 14 order that the detenu who is in custody in connection with the criminal cases will be released on completion of his detention period very soon and because of the probability to indulge in criminal activities which are prejudicial to public order, it is necessary to issue preventative order on the basis of the materials placed by the Superintendent of Police. Therefore, it cannot be said that the order was mechanically issued by the detaining authority without application of mind.
11. A Full Bench of this Court in Stenny Aleyamma Saju v. State of Kerala and Others [2017(3)KHC 517] while answering to the question referred by a Division bench on the law declared by another Division Bench in Elizabeth George v State of Kerala [2008 KHC 4879] that filing of a charge sheet under section 173(2) of Cr.P.C is not necessary, require reconsideration or not, in which one of us was a member (P.R. Ramachandra Menon, J.) answered that filing of charge sheet under Section 173(2) of Cr.P.C. WPCR 233/2017 15 is not necessary to enable the detaining officer to invoke the power under section 3(1) of KAAPA. The Full Bench has held that :
''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.'' It is further observed as follows ( paras 27 and 28 ):
"As mentioned already, unlike the case of 'punitive detention' where the purpose is to punish the offender on proving guilt; in the case of WPCR 233/2017 16 'preventive detention 'it is only a prudent action to prevent the possible damage which could be caused to the public order and the society at large. As such it has to be prevented at the earliest opportunity. The detaining authority, who is mulcted with the duty in this regard, cannot wait for completion of the investigation and submission of the final report under section 173(2) of Cr.PC to invoke the jurisdiction keeping as eyes shut till such time; which otherwise will only be an instance of dereliction of duty. The only requirement is that he should be in a position to record the 'satisfaction' with regard to the requirements under the statute, based on the information made available, whether it be final report or such other materials.
28. This Court does not intend to say that mere registration of FIR is enough under such circumstances. Of course, something more is necessary which is collected by the investigating officer during the course of investigation. If the data collected in such process is adequate enough to meet the requirements under the statute so as to record the 'objective' well as 'subjective' WPCR 233/2017 17 satisfaction to the extent it is necessary, it is open for the detaining authority to have it acted upon and need not wait till completion of investigation and submission of charge sheet under S.173(2) of the Cr.P.C."
12. Preventive detention was passed against the detenu on suspicion considering his involvement in the crimes mentioned in the order and especially his criminal antecedents. But final report filed under S.173 (2) of the Code of Criminal Procedure is not a pre-condition for subjective satisfaction of the detaining authority. It is significant to note that the last date of prejudicial act of the detenu was on 07.08.2017 and the order of detention was on 14.11.2016. It is discernible from Ext.P2 Report that Crime No. 237/2012 is pending before the Additional Sessions Court, Mavelikkara as S.C. No. 32/2013 and Crime No. 1005/2012 is pending as S.C. No. 107/2014 before the same Court and investigation is in progress in the other four cases. Considering the fact that there is every WPCR 233/2017 18 possibility of getting his release on bail and that the detenu has become a threat and a menace to the society disturbing the whole tempo of the society the sponsoring authority on satisfaction recommended preventive detention based on the materials forwarded to him by the investigating officer. The 2nd respondent, considering the fact that the detenu is a person who is indulged in prejudicial acts continuously causing threat and danger to the general public, had accepted the recommendation based on the materials before him and passed Ext.P1 order. The involvement of the detenu in the aforementioned cases on the basis of the materials presented by the sponsoring authority collected by the investigating officer were relied on by the detaining authority and so the subjective satisfaction of the detaining authority is patently clear from the order. None of the offences committed by him in the instances reckoned by the authority were coming under the exception narrated in the provisos (i) to (vi) of the definition of 'Known rowdy' to WPCR 233/2017 19 render the order illegal or unsustainable. His last prejudicial activity was on 07/08/2016. The detention order was on 14/11/2016. It indicates that there was no inordinate delay so as to cast any doubt on the genuineness of the subjective satisfaction of the detaining authority. It is significant to note that on the same day at different places he committed criminal activities and disturbed the public order and hence the order on subjective as well objective satisfaction of the detaining authority that the detenu is a dangerous person coming under definitions of Known rowdy and rowdy under S.2(p)(iii), and S.2(t) of the Act and that on his release on bail in those cases, the possibility to indulge in activities to cause disturbance which will affect public order cannot be said as an order passed with total non application of mind and illegal. 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 WPCR 233/2017 20 behaviour of those persons. If there is a quarrel, fight, clash or assault between two persons or more for some reason or other, those cases have to be dealt with under the provisions of ordinary criminal laws by the authorities concerned. But when anti-social activities are 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 is 'it is necessary so to do'. It contemplates objective and subjective satisfaction of the detaining authority which has to be gathered from the materials before the authority. 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 decisions to make sure that such miscreants shall not WPCR 233/2017 21 disrupt law and order for the safety of public. For that law never intended to wait for filing final report by the investigating agency to make the person ready to face trial; or for a finding by a court after a full-fledged trial that the detenu is guilty, but what is intended is a dispassionate approach of the detaining authority purely on the basis of the materials forwarded by the Superintendent of Police, who is having control of all the police stations in a district where complaints are received against such miscreants. If Rule of Law is to prevail in the society, a responsible and duty bound police officer will have to resort to such actions, though it may slightly invade upon the personal civil rights of the detenu as he is put behind the bar without trial.
13. The learned counsel for the petitioner further submitted that the delay in executing the order after the detention order has caused prejudice to the detenu in having recourse for cancelling the order at the earliest opportunity. As referred above the order was on 14/11/2016 WPCR 233/2017 22 and its execution was on 22/11/2016 on the 8th day. Sub- clause (3) of Section 3 only says that 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 approved by the Government or by the Secretary, Home Department if generally so authorised in this regard by the Government.
14. Section 7 deals with the 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. (2)The grounds of detention, specifying the instances of offences, with copies of relevant documents, as far as WPCR 233/2017 23 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".
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."
15. In Sanjeev Kumar Aggarwal v. Union of India and Others [1990(3)SCC 309] it is observed that:
"14. It is lastly submitted that there was 11 days delay in serving the detention order. It is true that the order of detention was passed on 13-7-89, but the same was served on 24-7-89. According to the learned counsel, WPCR 233/2017 24 there is a violation of S.3(3) of the Act. The said provision lays down that for the purpose of Art.25(2) of the Constitution, the order should be served as soon as possible but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention. Learned counsel for the State submitted that firstly the point of delay was not taken up in the special leave petition, therefore, he had no opportunity to counter the same. However, from the record he submitted that it took quite sometime for translating the documents to Hindi and Gurumukhi. We have seen the documents filed before us and we are satisfied that there are valid and sufficient reasons for delay in serving the detention order."
16. It is true that the detenu was in custody when the order was issued. On the 8th day the order was served on him with all the requisite details. Hence ,the delay of three days can only be considered as reasonable and there is nothing to conclude that there is violation of Section 3 (3) or S.7 (2) of KAAPA so as to deem the order invalid .
17. The other ground canvassed by the learned counsel for the detenu that legible and readable copies of the FI statements of Crime Nos.237/2012 and 1009/2012 (cases WPCR 233/2017 25 pending for trial) were not served prejudicially affecting him, appears to be baseless as his acknowledgment in the records itself was to the effect that he received legible and readable copies. The submission of his representation with details, elaborately described would also fortify the fact that his precious rights guaranteed by the constitution have not been infringed in any manner. Therefore, there is no genuine ground to vitiate the detention order as urged by him.
18. The learned counsel for the petitioner has opposed Ext.P1, the 4th order passed against the detenu and submitted that KAAPA empowers to pass only two detention orders against the same person and so Ext P1 could only be treated as an invalid order. It is discernible from the records that previously he was involved in 20 Criminal Cases of various offences. Six cases coming under Chapter X1V, XVI & XVI1 of the Indian Penal Code and Arms Act have been reckoned for issuance of the present order. The WPCR 233/2017 26 punishments prescribed for the offences alleged are with imprisonment for a term of more than one year which may extend to seven years. The learned counsel for the petitioner has submitted that the four cases under investigation viz. Crime Nos. 2174/2016, 2175/2016, 2185/2016, 2342/2016 of Kayamkulam police station were registered on the same day ie on 07/08/2016 itself shows that he was falsely implicated. But it is significant that the place of occurrence, time of occurrence and victims are different as per Ext.P 1 and P2 reports. Admittedly, the 3rd detention order was issued in the year 2014. It is specifically described in para 14 of Ext.P1 that he continues as a 'Known rowdy' as defined in Section 2(P) (iii) of KAAPA as he had indulged in four separate instances not forming part of the same transaction on the very same day and he committed offences mentioned in clause (t)of Section 2 of the Act. His first detention order was on 31.10.2009 which was modified by the Advisory Board with a warning. The WPCR 233/2017 27 second detention order on 20.5.2010 was approved by the Government and he was released only after completion of the period of detention. During the course of arguments, the state produced the record also for perusal. As discernible from the records the third order on 15.7.2013 was set aside and he was released. As mentioned above, Ext.P1 order was issued reckoning the six criminal cases registered by Kayamkulam Police for various grave offences coming within the parameters of the definition of 'rowdy' under 2 (t) and 'known rowdy'under 2(P) (iii) of KAAPA. All these crimes are alleged to have been committed within a span of 7 years. Out of that, two cases are pending trial before the Additional Sessions Court, Mavelikara and the remaining four are pending investigation. The issuance of the 4th detention order was while he was undergoing detention in connection with those cases, apprehending danger and threat to the public on his release on bail. Section 13 of KAAPA empowers the authority to pass such an order if convinced that the WPCR 233/2017 28 person continues to indulge in anti-social activities and when the order is passed to safe guard the public/society as a whole the order is not vitiated. Section 13 of KAAPA reads;
''13. Revocation of detention order.- (1)A detention order may, at any time, be revoked or modified by the Government.
(2)The revocation or expiry of a detention order shall not be a bar for the issuance of another detention order under section 3 against the same person, if he continues to be a person falling within the definition of known rowdy or known goonda as given in section 2(o) or section 2 (p) and if,--
(i)after release, he is, found to have, again involved in an offence of the nature described in section 2(o) or section 2 (p); or at least one instance; or
(ii)the facts, which came to the notice of the Government or the authorised officer after the issuance of the earlier detention order, considered along with previously known facts are sufficient to cause a reasonable apprehension that he is likely to indulge in or promote or abet antisocial activities; or
(iii)the procedural errors or omissions, by reason of which the first order was revoked, are rectified in the procedure followed with regard to the subsequent order, even if the subsequent order is based on the very same facts WPCR 233/2017 29 as the first order.''
19. It has been observed in Stenny Aleyamma's case (supra) that the detention involved in all preventive matters is not based on the guilt of the detenu, but on the basis of strong suspicion to have indulged in objectable activities which affect the Society/Nation at large. It reads as follows:
''10. KAAPA is an enactment providing for detention as several other preventive detention Statutes like Conservation of Foreign Exchange and Prevention of Smuggling Act [COFEPOSA], National Security Act [NSA], Maintenance of Internal Security Act [MISA] etc. The detention in all preventive detention matters is not based on guilt of the detenue, but on the basis of strong suspicion to have indulged in objectionable activities which affect the society/nation at large. In other words, there is black and white difference between 'punitive detention' and 'preventive detention'; the former being a proceeding by way of imposition of punishment for the offence already committed by the accused; whereas in the case of the latter, it is only to prevent occurrence of any such act which is recorded as possible by virtue of the past conduct of the detenue. In the case of preventive detention, the mischief is WPCR 233/2017 30 more against the society at large, adversely affecting the 'public order', which is at a much higher pedestal than the pedestal occupied by the 'law and order' situation. By way of 'punitive detention', the undesirable consequences which have already been resulted [by virtue of commission of offence] cannot be ruled out and the sentence is only to punish the guilty and to send a message as to consequences to the public at large. But in the case of 'preventive detention', the probable damage to be caused is of much more magnitude, as it is likely to affect the 'public order' and hence the law makers have consciously decided to take preventive measures rather than cure, thus giving rise to such Statute to abate the possible repetition/recurrence of adverse act/offence and the consequence. At the same time, the basic liberty granted to the citizen in terms of Article 21 of the Constitution of India will have to be safeguarded. This was well in the minds of the framers of the constitution as well, who hence provided sufficient requirements by way of Article 22 (5) and such other provisions as to the various procedures to be complied with in the matters of 'preventive detention' as it was an exception carved out to the personal liberty by way of Article 22 (3) (b) of the Constitution. As made clear by the Supreme Court, there is no charge sheet in a matter of preventive detention, unlike the matters of punitive detention. Reasonable chance for repetition of WPCR 233/2017 31 the acts/offence, based on the past conduct of the detenue, if discernible from the materials produced, is sufficient for the detaining authority to record his satisfaction and to pass an order of detention. Such reasons/grounds need not conclusively prove the guilt of the accused as in the case of punitive detention - wherein the degree of proof required to find a person guilty and to impose punishment is beyond all reasonable doubts. As it stands so, the expression used "found in any investigation" by the police/investigating officer, as used in Section 2 (o) (ii) or Section 2 (p) (iii) of the KAAPA, cannot be misunderstood or misconstrued as analogous to the level for arriving at the guilt of the accused for imposing any punishment on proving the guilt."
20. The cases reckoned during the period of seven years alone have been considered to pass Ext.P1 order. On objective and subjective satisfaction of the fresh six incidents which spell within the span of 7 years, the detaining authority passed the order and hence the precious right of the detenu guaranteed by the Constitution is not infringed by the order. When subsequent events came into existence with fresh facts/ cause of action WPCR 233/2017 32 nothing prevents the authority from taking into consideration of the same to pass another order of detention on objective and subjective satisfaction strictly following the safeguards and requirements provided by the provisions of the Act. More over here in the case of the detenu the 3rd order was not set aside by a constitutional authority. So the argument of the learned Government pleader that the previous crimes or antecedents can be taken into consideration by the detaining authority to have an objective satisfaction to issue the 4th order is absolutely correct and the detaining authority is fully justified in issuing Ext.P1 order detention order on the 4th occasion . We are also of the opinion that no such restriction or bar finds a place in the statue (KAAPA) in issuing any number of orders if there are sufficient materials for the same. So there is absolutely no merits in the argument advanced by the learned counsel for the petitioner. But as the fundamental right of a citizen is interfered with for the WPCR 233/2017 33 safety of the public, which is the prime concern, the detaining authority has to satisfy himself that all procedural safeguards and requirements of law have been strictly followed and complied with and breach of the same alone vitiates an order of detention by a competent authority. Therefore, if situation warrants any number of detention orders can be passed otherwise there will be no purpose for the enactment.
21. Relying on the decision in Vijay kumar Dharna 's case ( 1990( 1 )SCC 606) it is further argued on behalf of the petitioner that though there was reference of 20 cases the detaining authority did not furnish the details of all the cases to the detenu and thus denied of his right under Article 22(5) of the Constitution of India. Here, the materials regarding the six cases considered by the authority to pass the detention order, were correctly furnished to the detenu. In Kamarunnisa v Union of India and Another ( 1991 (1) SCC 128) it was held that the WPCR 233/2017 34 documents referred to in grounds but not relied upon while arriving at subjective satisfaction to detain need not be supplied to detenu. Section 7 of KAAPA only says that the copies of the documents taken as basis to consider a person as 'Known goonda 'or 'Known rowdy' shall as far as possible be furnished to him.
22. In Fousiya v. State of Kerala (2012 (3) KLT
232) it is held that supply of documents which were not made the basis for considering the detenu as a 'known goonda' or 'known rowdy' is not a legal requirement under Section 7(2). It is doubtless that though he was involved in 20 cases, documents referred to in grounds of order of detention were supplied to the detenu and non supply of documents not relied upon to detenu will not vitiate detention .So also the non- production of the previous detention order is not a requirement and hence not fatal.
23. The nature of allegations raised against the detenu would amount to anti-social activities. The records before us WPCR 233/2017 35 would make it explicitly clear that the detaining authority had objective as well subjective satisfaction on the basis of the materials placed by the sponsoring authority and to safe guard the interest of the society and to maintain public order the impugned order was passed 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.
In the result, the Writ Petition is dismissed.
Sd/-
P. R. RAMACHANDRA MENON JUDGE Sd/-
SHIRCY V. JUDGE ks.
True copy P.S. To Judge WPCR 233/2017 36 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.
(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 WPCR 233/2017 37 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:
Provided that nothing in this section shall require any authority to disclose to the detained person any fact, the disclosure of which will reveal the identity of any confidential source or the disclosure of which will be against the interests of internal security or national security.
(3)The Superintendent of the Jail where such person is detained shall afford him reasonable opportunity to consult a lawyer and reasonable assistance in making a representation against the detention order to the Government or to the Advisory Board.
(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 WPCR 233/2017 38 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.