Kumari A.V vs State Of Kerala on 19 July, 2024

[Cites 48, Cited by 0]

Kerala High Court

Kumari A.V vs State Of Kerala on 19 July, 2024

The mother of a person detained under Section 3 of the Kerala Anti Social Activities (Prevention) Act, 2007 ('KAAPA' for brevity) has approached this Court with this petition filed under Article 226 of the Constitution of India seeking to quash Ext.P1 detention order and to set him at liberty.

2. Introductory Facts:

Ext.P1 order, which is impugned in this Writ Petition, was issued on 16.5.2024 on being satisfied, both objectively and subjectively, that a detention order under Section 3(1) of the KAAPA is to be issued to prevent the detenu, classified as a "known rowdy" as defined under Section 2(p) r/w.

Section 2(t) of the KAAPA, from continuing to perpetrate any anti-social activity.

3. Detenu was arrested on 18.5.2024 and he is undergoing detention.

4. Previous history of the Detenu:

In Ext.P1 order, the entire criminal history of the detenu including previous cases in which he got himself involved and three other cases that W.P.(Crl) No. 571 of 2024 :4: were not reckoned for passing the detention order has been mentioned. Brief details of the case are as under:

i) Crime No. 164 of 2024 registered under Sections 341, 323, 324, 307 r/w. Section 34 of the IPC registered on 17.2.2024, wherein the detenu is arrayed as the 1st accused. The detenu was arrested on 28.2.2024 and he remains in custody.

ii) Crime No. 62 of 2021 registered on 25.1.2021 for offences under Sections 143, 147, 148, 452, 427, 294(b), 506(ii) r/w. Section 149 of the IPC wherein the detenu is arrayed as the 2nd accused. The final report has been laid in the aforesaid case on 3.9.2021 and the case is pending as C.C.No.819 of 2021 before the Judicial Magistrate of the First Class-III, Thrissur. The detenu was granted anticipatory bail by this Court and he executed the bond on 3.4.2021.

iii) Crime No. 151 of 2019 registered under Sections 341, 323, 324, 506(ii), 294(b), 308 r/w. Section 34 of the IPC wherein the detenu is arrayed as the 8th accused. In the said case, the final report was laid on 6.9.2021 and the case is pending before the jurisdictional Magistrate. The detenu was granted anticipatory bail by this Court and he has been on bail since 7.4.2021.

W.P.(Crl) No. 571 of 2024 :5:

5. In addition to the above cases, the detenu was involved in three other cases as well. However those cases were not taken into consideration for classifying him as a 'known rowdy'. Those cases are:

(a) Crime No. 765 of 2019 registered under Sections 308, 323, 324, 506, 212 r/w. Section 34 of the IPC.

(b) Crime No.1189/2019 registered under Sections 143, 147, 148, 354, 427, 326, 452, 212 r/w. Section 149 of the IPC.

6. The 2nd respondent has also noted in the order that proceedings were initiated under Section 110(e) of the Cr.P.C. based on the recommendation of the Station House Officer, Ollur Police Station, and M.C.No. 272 of 2024 has been registered by the Sub Divisional Magistrate. However, the detenu has not taken bail in the said case.

7. Though a specific condition was imposed in all the orders granting bail to the detenu that he shall not involve himself in any offence, he has continuously violated the said condition. The investigating officer concerned has filed applications seeking to cancel the bail granted and the same is pending.

W.P.(Crl) No. 571 of 2024 :6:

8. The detaining authority has mentioned in the order that though the detenu has not filed an application for bail in Crime No. 164 of 2024, there is every likelihood that the detenu may move a bail application and he is likely to be released on bail. It is stated that if immediate measures are not taken, the detenu may continue to perpetrate anti-social activities.

9. Contentions of the petitioner

a) The detention order was issued on 16.5.2024, and the detenu was arrested on 18.5.2024. However, the date of sponsorship shown in the detention order is vague as it is shown as 0/4/2024. This date is crucial for determining whether there is a live link between the prejudicial activity and the detention order.

b) In order to classify the detenu as a "known rowdy" under Section 2(p)(iii), he should have been 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 transactions to have committed any offence mentioned in Clause (t) of Section 2 of KAAPA. In the case on hand, in two crimes, the police submitted a final report, out of which one crime was registered in the year 2019 as Crime No. 151 of 2019, and another crime registered in the year 2021 as Crime No. 62 of 2021. The last prejudicial activity committed by the detenu was allegedly on W.P.(Crl) No. 571 of 2024 :7: 17.02.2024. According to the learned counsel, though in Stenny Aleyamma Saju v. State of Kerala and Ors.1, a Full Bench has held that the filing of a final report under Section 173 (2) of the Cr.P.C is not a prerequisite to invoke the power under Section 3 of the KAAPA, it has been clarified that mere registration of the FIR is not enough and something more is necessary to meet the requirements under the statute, so as to record the objective as well as subjective satisfaction. The learned counsel points out that no material was placed before the detaining authority to substantiate that the detenu had a major role or that injuries warranting the incorporation of Sections 307 and 324 of the IPC were inflicted. Neither the reporting authority nor the sponsoring authority is seen to have produced documents showing the involvement of the detenu such as the report of identification, the wound certificate of the victim, or the stage of investigation. If the said crime is excluded, the detenu could not have been classified as a "known rowdy".

c) The preliminary report was prepared on 11.3.2024, and the recommendations were made by the Assistant Commissioner of Police on 17.3.2024. The report of the Superintendent of Police was forwarded on 4.4.2024 and the detention occurred on 18.5.2024, three months after the filing of the initial report. 1 [2017 (3) KHC 517] W.P.(Crl) No. 571 of 2024 :8:

d) The cases against the detenu involve law and order, not public order.

e) Crime No. 765 of 2019, Crime No. 1189 of 2019, and Crime No. 1191 of 2019 have been referred to in the detention order, but, it was mentioned in the order that, as the detenu has no direct involvement in those cases, the same has not been considered for classifying him as a "known rowdy". It is contended that if those cases were not considered for passing the order of detention, they should not have been referred to in the order. Reliance was placed on the judgments rendered by the Apex Court in Khaja Bilal Ahammed Vs. State of Telangana2 and Ameena Begum Vs. State of Telangana3 and Nenavath Bujji Vs. State of Telangana & Ors4.

f) On 27.05.2024, the detenu submitted separate representations before the Chairman, Advisory Board, and Government. However, no orders have been passed, which omission would be a violation of the rights granted to the detenu under the Constitution.

g) The detaining authority ought to have invoked Section 15 of the KAAPA and restricted the movements of the detenu instead of a detention order.

h) Four cases were registered in 2019, one in 2021, and the last in 2024, with significant gaps between them.

2 [2020 (13) SCC 632] 3 [2023 (9) SCC 587] 4 [2024 SCC OnLine SC 367] W.P.(Crl) No. 571 of 2024 :9:

i) The detenu has been in custody since 28.2.2024 in Crime No. 164/2024. This aspect was not properly considered while passing the detention order

j) The learned counsel has relied on an unreported judgment rendered by this Court in W.P.(Crl) No.497/2024, wherein it was held that in cases wherein there is some gap between the prejudicial activities, it has to be held that the conduct of the detenu was not such as to cause a threat to society.

10. Response of the State:

It is submitted by the learned Public Prosecutor that it is based on a report dated 11.3.2024 submitted by the Station House Officer, Ollur Police Station pursuant to his involvement in Crime No. 164 of 2024 on 17.2.2024 that KAAPA proceedings were initiated. The Assistant Commissioner of Police submitted his recommendations on 17.3.2024 wherein it has been stated that the repeated involvement of the detenu in anti-social activities warrants initiation of proceedings under the KAAPA with a view to prevent him from committing the prejudicial activities.

Based on the said report, the Superintendent of Police submitted a report before the detaining authority on 0/4/2024. The detaining authority after subjectively satisfying the need to pass an order issued the detention W.P.(Crl) No. 571 of 2024 :10: order on 16.5.2024 and the detenu was detained on 18.5.2024. It is submitted by the learned Government Pleader to classify a person as 'known rowdy', the acts done by him within the previous seven years as calculated from the date of order are to be reckoned. In the case on hand, the detenu was found on an investigation in three separate instances not forming part of the same transaction, offences falling under Section 2(t) of the Act. In that view of the matter, the detenu cannot be heard to contend that the authority had not objectively satisfied the initiation of proceedings under the KAAPA. Refuting the submissions of the learned counsel that the representation dated 27.5.2024 was not considered, the learned Public Prosecutor would point out that the writ petition seeking issuance of Habeas Corpus was filed on 27.5.2024 itself. It is further submitted that the Advisory Board heard the matter on 19.6.2024 during the pendency of the writ petition. Relying on the law laid down in Stenny Aleyamma Saju (Supra), it is submitted that filing of a charge sheet under Section 173(2) of the Cr.P.C. is not necessary to invoke the power and pass an order under Section 3(1) of the KAAPA. Reliance is placed on the observations made by the Apex Court in Abdul Satar Ibrahim Manik v.5, it is submitted that the detaining authority was cognizant of the fact that the detenu was under incarceration and 5 [1992 (1) SCC 1] W.P.(Crl) No. 571 of 2024 :11: they have specifically mentioned in the order that nothing prevents the detenu from seeking bail from the jurisdictional court. According to the learned counsel, it is within the subjective satisfaction of the detaining authority as to whether there are any compelling circumstances to detain the detenu. The learned Public Prosecutor has placed reliance on the observations made by a Division Bench of this Court in Anju P. Anil Kumar v. State of Kerala6 and it is submitted that the time lag between the last prejudicial activity and the order of detention has been satisfactorily explained and the same has no reason to interfere with the detention order. According to the learned counsel, in cases wherein delay has been sufficiently explained, it cannot be said that there is no live link, and in order to substantiate the same, reliance is placed on the law laid down in Raheela Nazeer v. State of Kerala and Ors7. In order to explain the contention of the learned counsel appearing for the petitioner that there was no justification in imposing the maximum period of detention, reliance is placed on the observations made by the Apex Court in Vijay Kumar v. Union of India and Ors.8, and it is argued that there is absolutely no reason to furnish reasons for imposing the maximum period of detention.

6 [2023 KHC 289] 7 [2016 (3) KHC 189] 8 [1988 (2) SCC 57] W.P.(Crl) No. 571 of 2024 :12:

11. We have carefully considered the submissions advanced and have gone through the records.

12. Precedents on the subject.

a) It is by virtue of the powers conferred upon the State with reference to Entry No. 3 in the 'Concurrent List' [List III] of the Seventh Schedule to the Constitution of India that the State of Kerala has enacted KAAPA, specifically to provide for the effective prevention and control of certain kinds of anti-social activities in the State of Kerala. By virtue of the power conferred upon the authority under Section 3 of the KAAPA, if such authority is satisfied, on the information received from a Police Officer not below the rank of Superintendent of Police, with regard to the anti-social activities being committed by any 'known goonda' as defined under Section 2(o)(ii) or 'known rowdy' as defined under Section 2(p)(iii) of the Act within the State of Kerala, it would be open to the authority to initiate measures under the Act. As per the Scheme of the Statute, the detention order is required to be approved by the Government within 12 days, failing which such order will become inoperative. The provision mandates that the grounds of detention should be communicated to the detenu, and he should also be served with a copy of the order informing him of his right to represent to the Government and also before the Advisory Board W.P.(Crl) No. 571 of 2024 :13: against his detention, in terms of Section 7(2) of the KAAPA and Article 22(5) of the Constitution of India. On furnishing the information by the Advisory Board expressing an opinion as to the sufficient cause for detention, it has to be confirmed by the Government in terms of Section 10(4) of the KAAPA. To express or record the satisfaction of the detaining authority, twin circumstances have to be fulfilled. The first is the 'objective satisfaction' that the person concerned is a 'known goonda' in terms of Section 2(o)(ii) of the Act or a 'known rowdy' in terms of Section 2(p)(iii) of the Act. The second is the 'subjective satisfaction,' 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, and that there is a chance for perpetuating similar instances detrimental to society at large, affecting 'public order,' which hence requires prevention by passing an order of detention. The role to be played by the detaining authority is very important, and the satisfaction requires to be established with proper application of mind [See: Stenny Aleyamma Saju (supra)].

b) Article 22 of the Constitution provides various safeguards calculated to protect personal liberty against arbitrary restraint without trial. They are essentially procedural in character and their efficacy depends on the care and caution and the sense of responsibility with which they W.P.(Crl) No. 571 of 2024 :14: are regarded by the detaining authority. Two of these safeguards, which relate to the observance of the principles of natural justice and which, a fortiori, are intended to act as a check on the arbitrary exercise of power, are to be found in Article 22(5) of the Constitution. The constitutional imperatives enacted in this article are two-fold: (1) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention. These are the barest minimum safeguards that must be observed before an executive authority can be permitted to preventively detain a person and thereby drown his right to personal liberty in the name of public good and social security. (See: Khudiram Das v. State of W.B9)

c) The protection so guaranteed under Article 22 of the Constitution is subject to clause (3) of Article 22 which operates as an exception to clauses (1) and (2) and ordains that nothing therein shall apply to, inter alia, any person who is arrested or detained under any law providing for preventive detention. In Haradhan Saha v. State of W.B.10 the Apex Court has held that preventive detention is ordered to prevent the greater evil of elements imperilling the security and 9 [(1975) 2 SCC 81] 10 [(1975) 3 SCC 198] W.P.(Crl) No. 571 of 2024 :15: safety of a State, and the welfare of the Nation. Recourse to preventive detention can be taken by the executive merely on suspicion and as a precaution to prevent activities by the person sought to be detained, prejudicial to certain specified objects traceable in a validly enacted law. Since an order of preventive detention has the effect of invading one's personal liberty merely on suspicion and is not viewed as punitive, and the facts on which the subjective satisfaction of the detaining authority is based for ordering preventive detention is not justiciable, meaning thereby that it is not open to the constitutional courts to enquire whether the detaining authority has erroneously or correctly reached a satisfaction on every question of fact and/or has passed an order of detention which is not justified on facts, resulting in narrowing down of the jurisdiction to grant relief, it is only just and proper that such drastic power is not only invoked in appropriate cases but is also exercised responsibly, rationally and reasonably [See Ameena Begum (supra)].

d) The subjective satisfaction of the detaining authority is the foundation for the exercise of the power of detention. The Court cannot be invited to consider the propriety or sufficiency of the grounds on which the satisfaction of the detaining authority is based. The Court cannot, upon reviewing the grounds, substitute its own opinion for that of the authority. The exercise of the power of detention is not W.P.(Crl) No. 571 of 2024 :16: based on an objective determination of the necessity of detention for a specified purpose but rather on the subjective opinion of the detaining authority. If the detaining authority forms a subjective opinion regarding the necessity of detention for a specified purpose, the condition for exercising the power of detention is fulfilled. However, this does not mean that the subjective satisfaction of the detaining authority is wholly immune from judicial review. Courts have carved out a limited area within which the validity of subjective satisfaction can be subjected to judicial scrutiny. The basic principle is that since subjective satisfaction is a condition precedent for the exercise of the power conferred on the executive, the Court can always examine whether the requisite satisfaction was genuinely arrived at by the authority. If it was not, the condition precedent to the exercise of the power would not be fulfilled, making the exercise of the power invalid. Several grounds have been established by judicial decisions for concluding that the authority did not achieve the required subjective satisfaction under the statute. One of the simplest cases is when the authority has not applied its mind at all. In such instances, the authority could not possibly be satisfied regarding the facts it is required to consider. Another instance is when the power is exercised dishonestly or for an improper purpose, which would also negate the existence of satisfaction on the part of the authority. The W.P.(Crl) No. 571 of 2024 :17: existence of an improper purpose, not contemplated by the statute, has been recognized as an independent ground for judicial control in several cases. Additionally, the satisfaction claimed to have been arrived at by the authority would be invalid if it is based on the application of a wrong test or the misconstruction of a Statute. In such cases, the satisfaction of the authority would not pertain to the matter it is required to consider. Moreover, the satisfaction must be grounded on materials of rationally probative value. The grounds for satisfaction must be such that a rational human being can consider them connected to the fact in respect of which the satisfaction is to be reached. They must be relevant to the subject matter of the inquiry and not extraneous to the scope and purpose of the Statute. If the authority has taken into account, even with the best of intentions, a factor that it could not properly consider in deciding whether or not to exercise the power, or in determining the manner or extent to which the power should be exercised, the exercise of the power would be invalid. Furthermore, if there are matters explicitly or implicitly outlined in the Statute that the authority ought to consider, then, in exercising the power, the authority must regard those matters [See: Khudiram Das v. State of W.B.(supra)]

e) The burden of showing that the detention is in accordance with the procedure established by law is always with the detaining authority W.P.(Crl) No. 571 of 2024 :18: because Article 21 of the Constitution provides in clear and explicit terms that no one shall be deprived of his life or personal liberty except in accordance with the procedure established by law. This constitutional right of life and personal liberty is placed on such a high pedestal by the Constitutional Courts that it has always been insisted that whenever there is any deprivation of life or personal liberty, the authority responsible for such deprivation must satisfy the court that it has acted in accordance with the law. Even where a requirement of the law is breached in the slightest measure, the Constitutional courts have not hesitated to strike down the order of detention or to direct the release of the detenu even though the detention may have been valid till the breach occurred. The court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade. (See: Icchu Devi Choraria v. Union of India11)

f) The detention order must be based on a reasonable prognosis of the future behaviour of a person based on his past conduct in light of the surrounding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken to have been snapped if the detention 11 [(1980) 4 SCC 531] W.P.(Crl) No. 571 of 2024 :19: order is founded on stale incidents. It must be regarded as an order of punishment for a crime, passed without a trial, though purporting to be an order of preventive detention. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. (See: Sama Aruna v. State of Telangana12)

g) After relying on all the past precedents on the subject, the Apex Court in Ameena Begum (supra) has delineated the circumstances under which the Constitutional Court when called upon to test the legality of the orders of preventive detention may intervene. It was held as follows in paragraphs 28 and 29 of the judgment.

28. In the circumstances of a given case, a constitutional court when called upon to test the legality of orders of preventive detention would be entitled to examine whether:

28.1. The order is based on the requisite satisfaction, albeit subjective, of the detaining authority, for, the absence of such satisfaction as to the existence of a matter of fact or law, upon which validity of the exercise of the power is predicated, would be the sine qua non for the exercise of the power not being satisfied;

28.2. In reaching such requisite satisfaction, the detaining authority has applied its mind to all relevant circumstances and the same is not based on material extraneous to the scope and purpose of the statute;

[ (2018) 12 SCC 150)] W.P.(Crl) No. 571 of 2024 :20: 28.3. Power has been exercised for achieving the purpose for which it has been conferred, or exercised for an improper purpose, not authorised by the statute, and is therefore ultra vires;

28.4. The detaining authority has acted independently or under the dictation of another body;

28.5. The detaining authority, by reason of self-created rules of policy or in any other manner not authorised by the governing statute, has disabled itself from applying its mind to the facts of each individual case;

28.6. The satisfaction of the detaining authority rests on materials which are of rationally probative value, and the detaining authority has given due regard to the matters as per the statutory mandate;

28.7. The satisfaction has been arrived at bearing in mind existence of a live and proximate link between the past conduct of a person and the imperative need to detain him or is based on material which is stale;

28.8. The ground(s) for reaching the requisite satisfaction is/are such which an individual, with some degree of rationality and prudence, would consider as connected with the fact and relevant to the subject-matter of the inquiry in respect whereof the satisfaction is to be reached;

28.9. The grounds on which the order of preventive detention rests are not vague but are precise, pertinent and relevant which, with sufficient clarity, inform the detenu the satisfaction for the detention, giving him the opportunity to make a suitable representation; and W.P.(Crl) No. 571 of 2024 :21:

29. Should the Court find the exercise of power to be bad and/or to be vitiated applying any of the tests noted above, rendering the detention order vulnerable, detention which undoubtedly visits the person detained with drastic consequences would call for being interdicted for righting the wrong.

h) In Nenavath Bujji (supra), a three-judge Bench of the Hon'ble Supreme Court meticulously encapsulated the legal principles and summarised the principles with regard to preventive detention. Paragraph No.43 of the judgment articulates this doctrine as follows:

43. We summarize our conclusions as under:--

(i) The Detaining Authority should take into consideration only relevant and vital material to arrive at the requisite subjective satisfaction,

(ii) It is an unwritten law, constitutional and administrative, that wherever a decision-making function is entrusted to the subjective satisfaction of the statutory functionary, there is an implicit duty to apply his mind to the pertinent and proximate matters and eschew those which are irrelevant & remote

(iii) There can be no dispute about the settled proposition that the detention order requires subjective satisfaction of the detaining authority which, ordinarily, cannot be questioned by the court for insufficiency of material.

Nonetheless, if the detaining authority does not consider relevant circumstances or considers wholly W.P.(Crl) No. 571 of 2024 :22: unnecessary, immaterial and irrelevant circumstances, then such subjective satisfaction would be vitiated,

(iv) In quashing the order of detention, the Court does not sit in judgment over the correctness of the subjective satisfaction. The anxiety of the Court should be to ascertain as to whether the decision-making process for reaching the subjective satisfaction is based on objective facts or influenced by any caprice, malice or irrelevant considerations or non-application of mind,

(v) While making a detention order, the authority should arrive at a proper satisfaction which should be reflected clearly, and in categorical terms, in the order of detention,

(vi) The satisfaction cannot be inferred by mere statement in the order that "it was necessary to prevent the detenu from acting in a manner prejudicial to the maintenance of public order". Rather the detaining authority will have to justify the detention order from the material that existed before him and the process of considering the said material should be reflected in the order of detention while expressing its satisfaction,

(vii) Inability on the part of the state's police machinery to tackle the law and order situation should not be an excuse to invoke the jurisdiction of preventive detention,

(viii) Justification for such an order should exist in the ground(s) furnished to the detenu to reinforce the order of detention. It cannot be explained by W.P.(Crl) No. 571 of 2024 :23: reason(s)/grounds(s) not furnished to the detenu. The decision of the authority must be the natural culmination of the application of mind to the relevant and material facts available on the record, and

(ix) To arrive at a proper satisfaction warranting an order of preventive detention, the detaining authority must, first examine the material adduced against the prospective detenu to satisfy itself whether his conduct or antecedent(s) reflect that he has been acting in a manner prejudicial to the maintenance of public order and, second, if the aforesaid satisfaction is arrived at, it must further consider whether it is likely that the said person would act in a manner prejudicial to the public order in near future unless he is prevented from doing so by passing an order of detention. For passing a detention order based on subjective satisfaction, the answer of the aforesaid aspects and points must be against the prospective detenu. The absence of application of mind to the pertinent and proximate material and vital matters would show lack of statutory satisfaction on the part of the detaining authority.

13. Our Findings:

Having considered the submissions of the learned counsel and the facts of the instant case in light of the binding precedents, we are of the view that interference is warranted on two grounds. We shall elucidate on the same.

14. Laxity in considering the representation:

It is not disputed that the detenu had submitted independent representation W.P.(Crl) No. 571 of 2024 :24: before the Government as well as the Advisory Board on 27.05.2024, within a reasonable time from the issuance of the detention order which was on 18.05.2024.

His specific contention is that in the light of the principles of law laid down by the Apex Court, the Government was legally obliged to consider the representation as early as possible. In view of the contentions raised by the learned counsel appearing for the petitioner, we directed the learned Public Prosecutor to ascertain and get instructions as to the day on which the representation was received and the day on which the same was considered by the Government. The learned Public Prosecutor, on instructions, submitted that the representation submitted by the detenu was in fact received by the Government on 27.05.2024 itself. On 04.06.2024, the Government referred the matter to the Advisory Board and the Advisory Board passed orders on 20.06.2024 confirming the order of detention. It is pointed out that the representation filed by the detenu was considered by the Government only on 18.07.2024 almost a month after the date on which the order was confirmed by the Advisory Board.

15. The question is whether the Government was legally obliged to independently consider the representation before forwarding the files to the Advisory Board.

a) Section 7 of KAAPA reads as under:

Section 7. Grounds of detention shall be disclosed. W.P.(Crl) No. 571 of 2024 :25:

(i) 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.

(ii) 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:

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.

(iii) 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.

(iv) 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.

W.P.(Crl) No. 571 of 2024 :26:

Subsection (2) clearly says that the grounds for detention, detailing specific instances of offenses and including copies of relevant documents, must be provided to the detainee as soon as possible, but no later than five days after the detention. The detainee must be informed in writing of their right to make a representation to the Government and the Advisory Board against their detention. Subsection (3) says that the Superintendent of the Jail where the detainee is held must provide reasonable opportunities for the detainee to consult a lawyer. The detainee must be given reasonable assistance in making a representation against the detention order to the Government or the Advisory Board.

b) In Pramod Singla v Union of India13, a Division Bench of the Apex Court had occasion to consider whether there is any conflict between the principles of law laid down in K.M. Abdulla Kunhi & B.L. Abdul Khader v. Union Of India14 and Ankit Ashok Jalan v. Union Of India15, both of which are Constitution Bench judgments, which state that the Central Government must wait for the decision of the Advisory Board, with the Constitution Bench judgments of the Apex Court Court in Pankaj Kumar Chakrabarty v. State of West Bengal16 and the Jayanarayan Sukul v. State of West Bengal17. After considering the ratio of the law laid down in the judgments 13 2023 SCC Online SC 374 14 1991 (1) SCC 476 15 [2020) 16 SCC 127] 16 [(1969) 3 SCC 400] 17 [(1970) 1 SCC 219] W.P.(Crl) No. 571 of 2024 :27: it was held that there is no friction between the judgments. The Apex Court held that the detention order under both laws can be passed either by the Government or by the specially empowered officer. However, under Section 3 of the Preventive Detention Act, the specially empowered officer, within 12 days of the detention, has to seek for approval from the Government for continued detention, and only if the Government approves the same can the detention be continued. This process of seeking approval from the Government is essentially a transfer of power from the empowered officer to the Government, making the Government the detaining authority after the initial lapse of 12 days. In the COFEPOSA Act however, no such approval is required from the Government, and hence the detaining authority and the Government remain to be two separate bodies independent of each other. The provisions of the Preventive Detention Act, 1980 is in pari materia the provisions of the KAAPA. K.M. Abdulla Kunhi (supra) was rendered in the context of the COFEPOSA Act. In that view of the matter, the principles laid down in Pankaj Kumar Chakrabarty (supra) and Jayanarayan Sukul (supra), would squarely apply. In Pankaj Kumar (supra), after careful consideration, a Constitution Bench of this Court held that the Government must act independently from the Advisory Board and that there exists no mandate on the Government to wait for the decision of the Advisory Board. The relevant paragraphs of the said judgment are being extracted herein: W.P.(Crl) No. 571 of 2024 :28:

10. "It is true that clause (5) does not in positive language provide as to whom the representation is to be made and by whom, when made, it is to be considered. But the expressions "as soon as may be" and "the earliest opportunity" in that clause clearly indicate that the grounds are to be served and the opportunity to make a representation are provided for to enable the detenu to show that his detention is unwarranted and since no other authority who should consider such representation is mentioned it can only be the detaining authority to whom it is to be made which has to consider it. Though clause (5) does not in express terms say so it follows from its provisions that it is the detaining authority which has to give to the detenu the earliest opportunity to make a representation and to consider it when so made whether its order is wrongful or contrary to the law enabling it to detain him. The illustrations given in Abdul Karim case [Abdul Karim v. State of W.B., (1969) 1 SCC 433] show that clause (5) of Article 22 not only contains the obligation of the appropriate Government to furnish the grounds and to give the earliest opportunity to make a representation but also by necessary implication the obligation to consider that representation. Such an obligation is evidently provided for to give an opportunity to the detenu to show and a corresponding opportunity to the appropriate Government to consider any objections against the order which the detenu may raise so that no person is, through error or otherwise, wrongly arrested and detained. If it was intended that such a representation need not be considered by the Government where an Advisory Board is constituted and that representation in such cases is to be considered by the Board and not by the appropriate Government, clause (5) would not have directed the detaining authority to afford the earliest opportunity to the detenu. In that case the words would more appropriately have been that the authority should obtain the opinion of the Board after giving an opportunity to the detenu to make a representation and communicate the same to the Board. But what would happen in cases where the detention is for less than 3 months W.P.(Crl) No. 571 of 2024 :29: and there is no necessity of having the opinion of the Board? If counsel's contention were to be right the representation in such cases would not have to be considered either by the appropriate Government or by the Board and the right of representation and the corresponding obligation of the appropriate Government to give the earliest opportunity to make such representation would be rendered nugatory.

In imposing the obligation to afford the opportunity to make a representation, clause (5) does not make any distinction between orders of detention for only 3 months or less and those for a longer duration. The obligation applies to both kinds of orders. The clause does not say that the representation is to be considered by the appropriate Government in the former class of cases and by the Board in the latter class of cases. In our view it is clear from clauses (4) and (5) of Article 22 that there is a dual obligation on the appropriate Government and a dual right in favour of the detenu, namely, (1) to have his representation irrespective of the length of detention considered by the appropriate Government and (2) to have once again that representation in the light of the circumstances of the case considered by the Board before it gives its opinion. If in the light of that representation the Board finds that there is no sufficient cause for detention the Government has to revoke the order of detention and set at liberty the detenu. Thus, whereas the Government considers the representation to ascertain whether the order is in conformity with its power under the relevant law, the Board considers such representation from the point of view of arriving at its opinion whether there is sufficient cause for detention. The obligation of the appropriate Government to afford to the detenu the opportunity to make a representation and to consider that representation is distinct from the Government's obligation to constitute a Board and to communicate the representation amongst other materials to the Board to enable it to form its opinion and to obtain such opinion.

W.P.(Crl) No. 571 of 2024 :30:

11. This conclusion is strengthened by the other provisions of the Act. In conformity with clauses (4) and (5) of Article 22, Section 7 of the Act enjoins upon the detaining authority to furnish to the detenu grounds of detention within five days from the date of his detention and to afford to the detenu the earliest opportunity to make his representation to the appropriate Government. Sections 8 and 9 enjoin upon the appropriate Government to constitute an Advisory Board and to place within 30 days from the date of the detention the grounds for detention, the detenu's representation and also the report of the officer where the order of detention is made by an officer and not by the Government. The obligation under Section 7 is quite distinct from that under Sections 8 and 9. If the representation was for the consideration not by the Government but by the Board only as contended, there was no necessity to provide that it should be addressed to the Government and not directly to the Board. The Government could not have been intended to be only a transmitting authority nor could it have been contemplated that it should sit tight on that representation and remit it to the Board after it is constituted. The peremptory language in clause (5) of Article 22 and Section 7 of the Act would not have been necessary if the Board and not the Government had to consider the representation. Section 13 also furnishes an answer to the argument of the counsel for the State. Under that section, the State Government and the Central Government are empowered to revoke or modify an order of detention. That power is evidently provided for to enable the Government to take appropriate action where on a representation made to it, it finds that the order in question should be modified or even revoked. Obviously, the intention of Parliament could not have been that the appropriate Government should pass an order under Section 13 without considering the representation which has under Section 7 been addressed to it. W.P.(Crl) No. 571 of 2024 :31:

12. For the reasons aforesaid we are in agreement with the decision in Abdul Karim case [Abdul Karim v. State of W.B., (1969) 1 SCC 433]. Consequently, the petitioners had a Constitutional right and there was on the State Government a corresponding Constitutional obligation to consider their representations irrespective of whether they were made before or after their cases were referred to the Advisory Board and that not having been done the order of detention against them cannot be sustained. In this view it is not necessary for us to examine the other objections raised against these orders. The petition is therefore allowed, the orders of detention against Petitioners 15 and 36 are set aside and we direct that they should be set at liberty forthwith."

c) In Haradhan Saha (supra), yet another Constitution Bench of the Apex Court considered the distinction between the consideration of the representation made by the detenu in cases of preventive detention, and it was stated that if the representation was made before the matter is referred to the Advisory Board, the detaining authority must consider such representation, but if the representation is made after the matter is referred to the Advisory Board, the detaining authority would first consider it and then send it to the Advisory Board. It was held as under:

29. Principles of natural justice are an element in considering the reasonableness of a restriction where Article 19 is applicable. At the stage of consideration of representation by the State Government, the obligation of the State Government is such as Article 22(5) implies.

Section 8 of the Act is in complete conformity with Article 22(5) because this section follows the provisions of the Constitution. If the representation of the detenu is received before the matter is referred to W.P.(Crl) No. 571 of 2024 :32: the Advisory Board, the detaining authority considers the representation. If a representation is made after the matter has been referred to the Advisory Board, the detaining authority will consider it before it will send representation to the Advisory Board."

d) The Apex Court has held that representation submitted by the detenu relates to the liberty of the individual, the highly cherished right enshrined in Article 21 of our Constitution. Clause (5) of Article 22 therefore, casts a legal obligation on the government to consider the representation as early as possible. The words "as soon as may be" occurring in clause (5) of Article 22 reflect the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. Though there is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with, there shall not be any supine indifference or slackness in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal. This is because the confirmation of detention does not preclude the government from revoking the order of detention upon considering the representation. Secondly, there may be cases where the government has to consider the representation only after confirmation of detention. Clause (5) of Article 22 suggests that the representation could be received even after confirmation of the order of detention. The words 'shall W.P.(Crl) No. 571 of 2024 :33: afford him the earliest opportunity of making a representation against the order' in clause (5) of Article 22 suggest that the obligation of the government is to offer the detenu an opportunity to make a representation against the order before it is confirmed according to the procedure laid down under the relevant statutory provisions.

16. In view of the principles laid down above, the Government was legally obliged to consider the representation expeditiously before forwarding the documents to the advisory board. We are of the view that the rights of the detenu guaranteed under Article 22(5) of the Constitution has been violated.

17. Reckoning of Crime No.164/2024 for classifying the detenu as a known rowdy.

The detenu has been classified as a "known rowdy" as defined under Section 2(p) (iii) of KAAPA. To bring him within the ambit of the said provision, he must be 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 of KAAPA. In the case on hand, Crime No. 164 of 2024 is in the investigation stage. In Stenny (supra), a Full Bench of this Court has held W.P.(Crl) No. 571 of 2024 :34: that the filing of a charge sheet under Section 173(2) of the Cr.P.C. is not necessary to invoke the power to pass an order under Section 3(1) of the KAAPA. However, in paragraphs Nos. 27 and 28, the Full Bench has delineated the manner in which the requisite satisfaction has to be arrived at. It was held as follows:

"27. As mentioned already, unlike the case of 'punitive detention' where the purpose is to punish the offender on proving the guilt; in the case of '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 S.173(2) of Cr.P.C. 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' as well as 'subjective satisfaction' to the extent it is necessary, it is open for the detaining authority to have it W.P.(Crl) No. 571 of 2024 :35: acted upon and need not wait till completion of the investigation and submission of the charge sheet under S.173(2) of the Cr.P.C."

It was held by the Full Bench that mere registration of the FIR may not be enough. In the case on hand, all that is mentioned in the detention order is that a crime has been registered based on the information furnished by Sri. Sujith and the investigation have revealed that the detenu was also involved. The relevant documents such as the wound certificate, report submitted before the Court identifying the detenu as the prime accused, details of persons who spoke about his presence and involvement, the exact stage of the investigation, the manner in which the incident had taken place, and whether any of the exceptions provided under Section 2(p) of the KAAPA, were applicable were not brought to the notice of the detaining authority. If the said crime is excluded, there will only be two cases in which final reports have been laid, one in the year 2019 and the other in the year 2021, as against the detenu. In those crimes, the detenu has only minimal involvement and furthermore, he has been granted anticipatory bail by this Court. Furthermore, in the third crime, relied on by the detaining authority, the detenu is still undergoing incarceration. We are of the view that Crime No. 164 of 2024 cannot be taken into consideration for classifying the detenu as a "known rowdy" under the KAAPA in view of the failure of the detaining authority to take into consideration the relevant facts. W.P.(Crl) No. 571 of 2024 :36:

18. Conclusion In view of the discussion above, we are of the view that the order is liable to be interfered with for:

(a) the failure of the detaining authority to promptly and expeditiously consider the representation and

b) for reckoning Crime No. 164 of 2024 which could not have been considered for classifying the detenu as a "known rowdy".

This petition will stand allowed. The detention order dated 16.05.2024 is set aside. There will be a direction to the Superintendent of Police, Central Prison, Viyyur to release the detenu, Sri. Vivek, forthwith if he is not required in connection with any case.

sd/-

RAJA VIJAYARAGHAVAN V JUDGE sd/-

G.GIRISH JUDGE PS/17/7/24 W.P.(Crl) No. 571 of 2024 :37: APPENDIX OF WP(CRL.) 571/2024 PETITIONER EXHIBITS Exhibit -P1 A TRUE COPY OF ORDER NO.DCTSR/3982/2024-C1 DATED 16.05.2024 OF THE 2ND RESPONDENT

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