Kerala High Court
Ansar T.A vs State Of Kerala on 9 September, 2016
Author: Raja Vijayaraghavan
Bench: K.Harilal, V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 21ST DAY OF MARCH 2017/30TH PHALGUNA, 1938
WP(Crl.).No. 18 of 2017 (S)
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PETITIONER(S):
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ANSAR T.A.,
AGED 32 YEARS, S/O ABBAS,
THEKKINKATTIL VEEDU,
PULLAZHI P.O., OLARIKARA, THRISSUR-680 012.
BY ADV. SRI.M.H.HANIS
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY TO
GOVERNMENT, HOME AND VIGILANCE DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,
PIN:695001.
2. THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE,
THRISSUR, PIN:680 003.
3. THE CITY POLICE CHIEF,
THRISSUR, PIN:680 020.
4. THE CHAIRMAN,
ADVISORY BOARD, KAAPA, SREENIVAS,
PADAM ROAD, VIVEKANANDA NAGAR,
ELAMAKKARA, PIN:682 026.
R1-R3 BY SRI.SURESH BABU THOMAS, ADDITIONAL DGP
BY GOVERNMENT PLEADER SRI. K.A.ANAS
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD
ON 09-03-2017, THE COURT ON 21-03-2017, DELIVERED THE
FOLLOWING:
SKG
WP(Crl.).No. 18 of 2017 (S)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1: TRUE COPY OF ORDER NO.C1 44419/2016 DATED 9.9.2016
OF THE 2ND RESPONDENT ALONG WITH THE ENCLOSED
RECORDS.
EXHIBIT P2: TRUE COPY OF THE REPRESENTATION DATED 3.1.2017
SUBMITTED BY THE BROTHER OF THE DETENU BEFORE THE
IST RESPONDENT.
RESPONDENT(S)' EXHIBITS
----------------------- NIL
/TRUE COPY/
P.S.TO JUDGE
SKG
"CR"
K.HARILAL & RAJA VIJAYARAGHAVAN, V., JJ.
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W.P.(CR) No.18 OF 2017
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Dated this the 21st day of March, 2017
J U D G M E N T
~~~~~~~~~~ Raja Vijayaraghavan, J.
1.This writ petition filed with a prayer to issue a Writ of Habeas Corpus under Article 226 of the Constitution of India has been filed by the petitioner herein to direct the production of his brother Ashkar, (hereinafter referred to as 'the detenu') who is detained in custody pursuant to an order passed under Section 3 of the Kerala Anti Social Activities (Prevention) Act, 2007 ( referred to as "KAAPA" for brevity) before this Court and to release him from detention.
2.The detenu, Ashkar, was allegedly involved in 7 criminal cases all of which are pending trial. Taking note of his penchant to disturb public peace and to prevent him from W.P.(CR) No.18/2017 2 perpetrating anti-social activities, a request was submitted before the 3rd respondent by the Station House Officer, Thrissur West Police Station with the prayer to invoke the provisions of the KAAPA against the detenu. The 3rd respondent submitted a report dated 03/08/2016 before the 2nd respondent. The 2nd respondent thereupon issued an order of detention dated 09/09/2016 under Section 3 of the KAAPA. The detenu was arrested on 13/10/2016. The order of detention passed by the 2nd respondent was approved by the Government on 22/10/2016. Based on the reference by the Government, the Advisory Board gave opinion that there are sufficient cause for the detention of the detenu. The Government by order dated 24/11/2016 has confirmed the order of detention accepting the opinion of the Advisory Board.
3.The chart herein below gives the details of the cases, in which the detenu was involved.
W.P.(CR) No.18/2017 3
Date of Final Sl.No. Crime No. Police Station Offences U/ss. Date of occurrence report u/s 173(2) Cr.P.C 143, 147, 148, 341, 302, 120(b) r/w 149 1 07/2011 Kozhinjampara IPC & Sec.3 of Explosive Substances 02-01-11 14-05-2015 Act and 27 of Arms Act 2 2235/2012 Thrissur East 392 IPC 12-10-12 23-02-13 3 227/2014 Thrissur West 20(b)(ii)A of NDPS Act 01-02-14 15-12-14 4 775/2015 Thrissur West 27(b) of NDPS Act 14-05-15 02-06-15 5 1080/2016 Thrissur West 20(b)(ii) A of NDPS Act 01-05-16 20-06-16 6 1517/2014 Peechi 20(b)(ii) A of NDPS Act 02-10-14 31-10-14 7 7251/2008 Pudukkad 399 IPC & Sec.20 r/w 27 of Arms Act 02-05-2008 20-10-2008
4.We have heard Sri Hanis.M.H., the learned Counsel appearing for the petitioner and the learned Government Pleader.
5.The petitioner has advanced the following submissions to contend that the order of detention is illegal and opposed to all tenets of law.
(a) The detention order has been passed about 4 months after the last prejudicial activity. According to the W.P.(CR) No.18/2017 4 learned counsel, the live link has snapped and the detention order is vitiated. Reliance was placed on Jimesh Jose V State of Kerala [2013 (1) KHC 49] to buttress his argument.
(b) There is unexplained and inordinate delay in executing the order of detention. Though Exhibit P1 order was passed on 09/09/2016, the same was executed only on 13/10/2016. No proceeding was initiated under section
6 of the Act to explain the delay.
(c) Crimes which are referred as item numbers 3, 4, 5 and 6 in the order of detention are those registered under the Narcotic Drugs and Psychotropic Substances Act, 1985. These cases have also been considered for categorizing the detenu as a "known goonda". However, the allegations in the Crime only relates to possession and use of Narcotic Drugs which will not come within the ambit of Section 2(i) or 2(o) of the W.P.(CR) No.18/2017 5 KAAPA and consequently, the question of bringing the petitioner within the four corners of Section 2(o)(ii) of the KAAPA will not arise.
(d) The cases on the basis of which detention order was issued are all registered by the police. For that reason, the conclusion arrived at by the authority is that the detenu is a "known goonda" as defined under Section 2(o) of the KAAPA cannot be sustained.
(e) Proceeding under section 107 of the Code of Criminal Procedure was initiated against the detenu. Hence there was no justification for invocation of KAAPA.
(f) The order of detention is vitiated by failure of the authorities to furnish copies of all relevant documents relied on by them.
(f) Non-application of mind is writ large on the face of the order.
6.The learned Government Pleader however would oppose W.P.(CR) No.18/2017 6 the submissions advanced and took us painstakingly through the order of detention and other materials. Inviting our attention to the counter affidavits filed by the respondents 1 to 3, he would submit that the contentions raised are meritless. According to the learned Government Pleader, the detenu was carrying on with his antisocial activities unhindered in spite all efforts taken by the law enforcement agencies to check his activities. His antecedents and his involvement in not less than 6 crimes clearly indicated his predilection to continue with the prohibited activities. Though proceeding under section 107 of the Code was initiated, the detenu has indulged in a crime thereafter. According to the learned Government Pleader, the detention order was passed after taking note of all the relevant aspects and there is no delay in passing the order. All the documents which were relied on by the detaining authority were supplied to the detenu and this aspect is borne out from the materials produced by the W.P.(CR) No.18/2017 7 detenu himself. It is further argued that the submission of the counsel that the detenu cannot be classified as a drug offender, cannot be sustained as he was found in possession and was engaged in transacting narcotic drugs. The subjective satisfaction was arrived at by the detaining authority after evaluation of all the materials on record and it is submitted that the contentions now advanced are sans merit and deserves rejection.
7.We have anxiously considered submissions and have gone through the materials on record.
8.We take note of the fact that the detaining authority has relied on crimes detailed as 3 to 6 in the chart for arriving at the objective satisfaction that the detenu is a "known goonda". Those crimes are registered under the Narcotic Drugs and Psychotropic Substances Act, 1985 ( hereinafter referred to as the "NDPS Act" for brevity). In all these cases except one, the prosecution allegation is W.P.(CR) No.18/2017 8 that the petitioner had possessed Ganja. In the solitary case registered under section 27 of the Arms Act, the allegation is that he was found consuming ganja in the open. We are unable to accept the contention of the counsel that the aforesaid crimes cannot be taken into account to characterize the petitioner as a "known goonda". The contention appears to be that possession of ganja is not included in Section 2 (i) of the KAAPA which defines a drug offender and in that view of the matter, he cannot be termed as a goonda. We are unable to agree. Section 2 (i) of the KAAPA clearly defines a "drug offender" as one who illegally cultivates, manufactures, stocks, transports, sells or distributes any drug in contravention of the NDPS Act, 1985 or in contravention of any other law for the time being in force, or who knowingly does anything by abetting or facilitating such activity. Being found in possession of a narcotic drug would definitely attract the vice of Section 2(i) of the W.P.(CR) No.18/2017 9 KAAPA, as the definition is couched in such wide language. Even a person who acts in contravention of any other law relating to Narcotic Drug or a person who abets or facilitates activity in drugs will fall within the ambit of the term "drug offender" as defined. Further, each of the activity in section 2(i) of the KAAPA would take in possession of the Narcotic Substance as well. As held by this Court in Ashraf V Inspector General of Police [2014 (3) KHC 695], the mere absence of the word "possession" in the definition of the term "drug offender"
in KAAPA is not decisive to exclude a person found to be in possession of any drug in contravention of the NDPS Act, 1985 or any other law for the time being in force. We are therefore not impressed with the said contention and the same is rejected.
9.The next contention advanced by the learned counsel is that the case Nos.3 to 6 in the chart registered under the W.P.(CR) No.18/2017 10 NDPS Act, 1985 has to be eschewed for categorizing the detenu as a "known goonda" as the Crimes have been registered at the instance of the Police and not on the basis of a complaint initiated by persons other than police officers. We are unable to agree. The proviso to section 2
(o) lays down that an offence in respect of which a report was filed by a police officer before a lawful authority consequent to the seizure, in the presence of witnesses of narcotic drugs may be included for consideration though the report had resulted from an action initiated by a police officer. Consequently, the contention that he is not a "known goonda" to satisfy the threshold requirement of S.3 cannot also be accepted.
10.We are not impressed with the contention of the learned counsel that there was no justification in issuing an order of detention as the proceedings under Section 107 has been initiated. The 3rd respondent in his counter affidavit W.P.(CR) No.18/2017 11 has stated that a rowdy history sheet was opened against the detenu in the Town West Police Station on 29.03.2015. As a preventive measure, proceedings under section 107 of the Code was initiated on 17.10.2015. Even thereafter the detenu continued to disturb the public order unmindful of the actions taken by the authorities to quell his objectionable acts. He got involved in Crime No.1080 of 2016 under section 20 (b) (ii) A of the NDPS Act on 20.6.2016. Thus it is evident that the detenu had continued with his anti social acts as a drug offender even after initiation of proceedings under section 107 of the Code.
11.The next contention is with regard to the delay in passing the order of detention. According to the learned counsel, the last prejudicial activity was on 1.5.2016 and the order of detention was passed only on 9.9.2016, well beyond four months. According to the learned counsel, the live W.P.(CR) No.18/2017 12 link has snapped rendering the detention order unsustainable. In the counter affidavit filed by the 2nd respondent, it is stated that the final report in Crime No.1080 of 2016 registered under Section 20 (b) of the NDPS Act, 1985 was laid before the jurisdictional court on 26.6.2016. The respondent had perused all the records in connection with the crimes and had passed the order of detention on 9.9.2016, after due application of mind.
12.It is trite that the question whether the prejudicial activities of a person necessitating the authorities to pass an order of detention is proximate to the time when the order is made or whether the live link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It W.P.(CR) No.18/2017 13 follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinize whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned. The Court has to investigate whether the casual connection has been broken in the circumstances of each case (see T. A. Abdul Rahman v. State of Kerala and Others [AIR 1990 SC 225]).
13.In Licil Antony v. State of Kerala and Another [2014 (11) SCC 326], an identical question had arisen before the Apex Court wherein the delay in passing the order of detention was about 6 months. The Apex Court had occasion to observe thus:
W.P.(CR) No.18/2017 14
"9. ......While dealing with the question of delay in making an order of detention, the Court is required to be circumspect and has to take a pragmatic view. No hard - and - fast formula is possible to be laid or has been laid in this regard. However, one thing is clear that in case of delay, that has to be satisfactorily explained. After all, the purpose of preventive detention is to take immediate steps for preventing the detenu from indulging in prejudicial activity. If there is undue and long delay between the prejudicial activity and making of the order of detention and the delay has not been explained, the order of detention becomes vulnerable. Delay in issuing the order of detention, if not satisfactorily explained, itself is a ground to quash the order of detention. No rule with precision has been formulated in this regard. The test of proximity is not a rigid or a mechanical test. In case of undue and long delay the Court has to investigate whether the link has been broken in the circumstances of each case.
18............Even in a case of undue or long delay between the prejudicial activity and the passing of detention order, if the same is satisfactorily explained and a tenable and reasonable explanation is offered, the order of detention is not vitiated."
14.We are of the view that the delay in passing the detention order cannot be said to be long and W.P.(CR) No.18/2017 15 unexplained. One needs to bear in mind that the detaining authority can issue the order of detention on the basis of a report of the sponsoring authority only after due application of mind and on the strength of sufficient materials. Reasonable time is to be conceded to the detaining authority lest they proceed to pass the order of detention in haste. In the facts of the instant case, we are unable to persuade ourselves to agree with the learned counsel that the live link between the alleged prejudicial acts and the order of detention has snapped. The contention is therefore liable to be rejected.
15.The next contention is with regard to the delay in executing the order of detention. According to the petitioner, the order of detention is dated 9.9.2016 but the same was executed only on 13.10.2016. This long delay in executing the order is sufficient enough reason to derail the order is the submission. In the counter affidavit W.P.(CR) No.18/2017 16 filed by the 3rd respondent, it is stated that immediately after receiving the detention order, the police had taken sincere efforts to execute the same. The detenu left his residence with intent to evade the arrest. Despite their earnest efforts his whereabouts could not be found. In view of the above, the 3rd respondent had furnished a report before the 2nd respondent requesting for initiation of action under section 6 (1) (a) (b) of the Act. During the pendency of the said proceedings, the detenu was arrested at 7.00 p.m. on 13.10.2016. The detenu who managed to evade the process of arrest cannot be permitted to take advantage of his actions to unsettle the order of detention. We are satisfied with the explanation offered and we have no doubt in our mind that the said contention is liable to be rejected.
16.The learned counsel would then contend that the order of detention is vitiated for the failure to furnish copies of W.P.(CR) No.18/2017 17 relevant documents to the detenu. Though such a contention was raised, the detenu has not detailed the documents, the copies of which were not furnished to him. In the counter affidavit filed by the 2nd respondent, it is specifically stated that the order of detention was read over to the detenu and a copy of the order was served on him at the time of execution of the order. The grounds of detention and all the relied upon documents pertaining to all criminal cases were given to the detenu. The endorsement of the detenu on all the records were also obtained. The learned Government Pleader produced, for our perusal, copy of the records which would show that the detenu had received the grounds of detention and the relevant documents under his signature.
17.Though various other contentions were advanced at the time of hearing, we find that the petitioner has not raised any such contention in the Writ Petition. W.P.(CR) No.18/2017 18
18.It is well settled that subjective satisfaction entertained by the detaining authority is not justiciable. This Court does not sit in appeal in proceedings under Article 226 of the Constitution of India over the decisions taken by the detaining authority on the basis of the materials placed before the detaining authority as to whether preventive detention is necessary or warranted. The short area of jurisdiction is to ascertain whether the subjective satisfaction is entertained properly on the basis of materials placed before the detaining authority. If the entertainment of the latter subjective satisfaction is vitiated by mala fides or by total absence of materials or by reference to and reliance on materials which cannot legally be taken note of, certainly the powers of judicial review vested in this Court can be invoked and the order of detention on the basis of such alleged subjective satisfaction can be set aside. But, certainly if there are materials, it is not open to this Court to sit in appeal over W.P.(CR) No.18/2017 19 the subjective satisfaction entertained by the detaining authority. (See Ibrahim Bachu Bafan and Another V State of Gujarat and Another [1995 (2) SCC 24].
19.After having given our anxious consideration to the submissions advanced and after testing the same with the statutory provisions and legal precedents, we are of the view that the challenge raised to the validity, legality and sustainability of the order of detention is liable to fail. In the light of the above discussion, we hold that this Writ Petition is meritless and the same is liable to be dismissed. We accordingly dismiss the same.
sd/-
K.HARILAL, JUDGE sd/-
RAJA VIJAYARAGHAVAN, V. JUDGE ps/12/3/17