A.K.Gopi vs Stateof Kerala

[Cites 29, Cited by 0]

Kerala High Court

A.K.Gopi vs Stateof Kerala

1.Petitioner is the father of Nishanth @ Kannan (hereinafter referred to as the 'detenu', for short). In this writ petition, he is challenging Ext.P1 order dated 25.9.2013, whereby, the second respondent, the detaining authority under the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred to as the 'Act', for short) classified the detenu as a 'known rowdy' under section 2(p)(iii) of the Act and ordered his detention under section 3 thereof.

2.Briefly stated, facts of the case are that the third respondent, the sponsoring authority under the Act, submitted Ext.P3 report dated 17.8.2013 to the second respondent under section 3 of the Act. That report was based on report dated 10.8.2013 submitted by the 4th respondent, intimating him the details of the criminal cases in which the detenu is an accused. In WPCR.552/13 2 Ext.P3, it was stated that the detenu is an accused in the following cases:

(1)Crime No.527/08 of the Puthukkad Police Station, for offence under section 395 IPC, which is chargesheeted before the Fast Track Court-II, Thrissur as SC.63/09.

(2)Cr.No.107/09 of the Peechi Police Station, for offence under section 120(b) and 395 IPC, which is chargesheeted as SC.No.609/11 on the file of the First Additional Assistant Sessions Court, Thrissur.

(3)Cr.No.141/10 of the Ollur Police Station, for offence under sections 143, 147, 148, 452, 427 read with 149 IPC, which is charged as CC.183/10 on the file of the Judicial First Class Magistrate Court-III, Thrissur.

(4)Cr.No.400/10 of the Cherppu Police Station, for offence under sections 143, 148, 341, 307, 323, 324, 326 read with 149 IPC and section 27 of Arms Act, which is charged as SC.798/11 on the file of the Fast Track Court-I, Thrissur.

WPCR.552/13 3

(5)Cr.No.842/10 of the Ollur Police Station, for offence under sections 448, 323, 324, 354 read with 34 IPC, which is charged as SC.545/11 on the file of the Second Additional Assistant Sessions Court, Thrissur.

(6)Cr.No.903/11 of the Thrissur East Police Station, for offence under section 120(b) and 395 IPC, committed as per CP.14/13 to the Sessions Court, Thrissur.

(7)Cr.No.498/12 of the Puthukkad Police Station, for offence under sections 436, 323, 324, 354, 452, 427, 294(b), 506(l) read with 34 IPC, pending as SC.466/12 on the file of the Additional Assistant Sessions Court, Irinjalakkuda.

(8)Cr.No.1808/12 of the Puthukkad Police Station, for offence under section 143, 147, 148, 341, 323, 324, 326, 427, 308 read with 149 IPC committed to the Sessions Court, Thrissur as CP.22/13 and (9)Cr.No.890/13 of the Viyyur Police Station, for offence under sections 143, 147, 148, 449, 341, WPCR.552/13 4 511, 365, 302 read with 149 IPC committed to the Sessions Court, Thrissur as CP.46/08.

3.The report further stated about the pendency of Cr.No.517/10 of the Cherppu Police Station, for offence under section 27 of the Arms Act charged as CC.1256/10 on the file of the Judicial First Class Magistrate Court-I, Thrissur and Cr.No.1527/11 of the Ollur Police Station, for offence under section 399 IPC read with 27 of the Arms Act pending as SC.526/12 on the file of the Fast Track Court-I, Thrissur.

4.Pointing out the cases and the offences alleged against the detenu, in Ext.P3 report, the third respondent informed the second respondent that those offences fell within the requirements specified in the Act to classify the detenu as a 'known rowdy' as provided under section 2(p)(iii) of the Act and that in order to prevent him from continuing his anti- social activities as provided in section 2(a) thereof, he be detained under section 3 of the Act. On the basis of Ext.P3 report, the second respondent, the detaining authority, initiated proceedings under WPCR.552/13 5 the Act and finally, issued Ext.P1 order dated 25.9.2013, classifying the detenu as a 'known rowdy' under section 2(p)(iii) of the Act and ordered his detention under section 3 thereof. In the said order, the detaining authority has only taken into account the 9 cases mentioned above and has excluded CC.1256/10 on the file of the Judicial First Class Magistrate Court-I, Thrissur and SC.526/12 on the file of the Fast Tract Court-I, Thrissur for the reason that these two cases were registered by the police without any complaint from any person. On the basis of Ext.P1 order, the detenu was arrested on 7.10.2013 and is undergoing detention.

5.Once the detenu was detained, the second respondent submitted his report to the Government and the Director General of Police as required under section 3(3) of the Act on 9.10.2013. Thereupon, the Government, by its order dated 18.10.2013, approved the detention as provided under section 3(3) of the Act. Subsequently, as required under section 9 of the Act, the Government made reference to the Advisory Board constituted under section 8 of the WPCR.552/13 6 Act, on 25.10.2013. Accordingly, the Advisory Board heard the counsel for the detenu on 5.11.2013 and submitted its report dated 11.11.2013 to the Government, as provided under section 10, stating that in its opinion, there were sufficient grounds for the detention of the detenu. On receipt of the report, the Government issued order dated 18.11.2013 confirming the detention under section 10(4) of the Act. It is in this background, the petitioner, the father of the detenu, has filed this writ petition, seeking to impugn Ext.P1 order of detention with a prayer to set the detenue at liberty.

6.We heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents.

7.Learned counsel for the petitioner contended that though the last prejudicial activity in relation to which Cr.No.890/13 of the Viyyur Police Station was allegedly committed by the detenu on 26.5.2013, Ext.P1 order of detention was passed on 25.9.2013. Therefore,there was inordinate and unexplained delay WPCR.552/13 7 of four months in passing Ext.P1 order in as much as the last prejudicial activity having been committed on 26.5.2013. Secondly, the counsel contended that after the execution of Ext.P1 order, under the cover of Ext.P7 letter dated 25.10.2013 of the counsel for the detenu, Exts.P5 and P6 representations dated 26.10.2013 were forwarded to the Superintendent, Central Prison, Kannur and that despite its receipt on 28.10.2013, the Jail Superintendent did not forward Ext.P6 representation to the Advisory Board. Thirdly, he contended that though Ext.P5 representation was received by the Government on 4.11.2013, it was not forwarded to the Advisory Board. Fourthly, the counsel found fault with the Government for having passed order dated 5.11.2013 rejecting Ext.P5 representation. Fifthly, he contended that the representations which were received by the Jail Superintendent on 28.10.2013 were forwarded to the Government and were received by the Government only on 4.11.2013, and that the delay was inordinate and unexplained, vitiating the order. Lastly, learned counsel for the petitioner contended that the last prejudicial activity in relation to WPCR.552/13 8 which Cr.No.890/13 of the Viyyur Police Station was allegedly committed by the detenu on 26.5.2013. Thereafter, by Ext.P4 order passed by the Sessions Court, Thrissur on 29.7.2013, he was enlarged on bail. According to him, Ext.P4 order granting him bail was not made available to the detaining authority when it passed Ext.P1 order on 25.9.2013 and that therefore, the order is vitiated.

8.However, learned Government Pleader contradicted each of these contentions and also produced the files maintained by the Government to substantiate her contentions.

9.The first contention of the learned counsel for the petitioner is regarding the delay in passing Ext.P1 order. As we have already seen, the last prejudicial activity leading to the registration of Cr.890/13 of the Viyyur Police Station was on 26.5.2013. In that case, charge was laid before the concerned court on 12.7.2013 and it was thereafter that Ext.P3 report was made by the sponsoring authority on 17.8.2013, based on which, the detaining authority passed Ext.P1 WPCR.552/13 9 order on 25.9.2013. The contention of the learned counsel for the petitioner was that in between 26.5.2013 and 25.9.2013, there occurred a delay of four months and that therefore, the live link between the prejudicial activity and the purpose of detention is snapped rendering the detention order vitiated. In support of this contention, counsel for the petitioner relied on the judgment of the Apex Court in T.A.Abdul Rahman v. State of Kerala [AIR 1990 SC 225] and of this Court in Jimesh Jose v. State of Kerala [2013 (1) KLT 447].

10.In matters of preventive detention, since the purpose is to prevent the detenu from continuing the anti-social activity concerned, courts have taken the consistent view that unless the detention in question is ordered with due expedition, the live link between the prejudicial activity and the purpose of detention will be lost and that the delay in passing the order will vitiate the order of detention. But the proximity between the two cannot be assessed adopting any hard and fast rule or by applying any mechanical rule and that what vitiates the order is not the WPCR.552/13 10 delay but it is the absence of satisfactory explanation for the delay. Consistent with the above principle, in Abdul Rahman (supra), the Apex Court held thus:

"11.The conspectus of the above decisions can be summarised thus : The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or 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 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 scrutinise 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, when called upon to answer and further the Court has to investigate whether the causal connection has been broken in the circumstances of each case."

WPCR.552/13 11 The very same principle can be seen in the judgment of this Court in Jimesh Jose (supra) where, a Division bench of this Court held thus:

"11. We shall now consider the second argument of the learned counsel for the petitioner that there was inordinate and unexplained delay in passing Ext.P1 detention order after the last alleged anti-social activity. The second respondent has relied on Crime No.46 of 2012 of Kalady Police Station in order to arrive at the finding that the detenu was continuing his anti-social activities. The occurrence in Crime No.46 of 2012 was on 10.1.2012. Therefore, the last anti-social activity alleged against the detenu has taken place on 10.1.2012. But, Ext.P1 detention order has been passed by the second respondent only on 26.5.2012. This shows that there was a delay of 4 1/2 months in passing the detention order after the alleged last anti-social activity on 10.1.2012. The second respondent observed in Ext.P1 order that if the detenu was at large he would indulge in anti-social activities which would directly or indirectly cause harm, danger or alarm or a feeling of insecurity or threat to public life. So, in order to protect the members of the general public from the anti-social activities of the detenu, Ext.P1 order has been passed. The petitioner has specifically averred and contended in this Writ Petition that Ext.P1 detention order is bad owing to inordinate and unexplained delay. That the cause of delay has not been explained at all in Ext.P1. Moreover, the respondents 1 and 2 have not given any WPCR.552/13 12 satisfactory explanation in their counter affidavits for the delay caused in passing Ext.P1 order. So, the delay occurred in this case remains unexplained by the respondents 1 and 2. Mere delay in passing the detention order after the last prejudicial activity alone is not a sufficient ground for vitiating the order of detention provided the delay is satisfactorily explained by the authorities concerned.

12. Dealing with the delay in passing the detention order, the Supreme Court held in T.A. Abdul Rahman v. State of Kerala (1990 (1) KLT 440 (SC) = AIR 1990 SC 225) as follows:

"........However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise 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, when called upon to answer and further the Court has to investigate whether the causal connection has been broken in the circumstances of each case."

Dealing with the unexplained delay, the Supreme Court in P.N.Paturkar v. S.Ramamurthi (AIR 1994 SC 656) held as follows:

"14. Under the above circumstances, taking into consideration of the unexplained delay whether short or long especially when the appellant has WPCR.552/13 13 taken a specific plea of delay, we are constrained to quash the detention order......"

13. The maximum period of detention under KAAPA shall not exceed six months from the date of detention as determined under S.12. KAAPA is intended to effectively preventing and controlling anti-social activities in the State of Kerala. Therefore, the detaining authority is passing a detention order exercising his powers under S.3 of KAAPA for the purpose of preventing a known goonda or known rowdy from committing any anti-social activities. This is for protecting the members of the general public in the State of Kerala from such anti- social activities. The Legislature thought it proper to fix the maximum period of detention under KAAPA as six months. In the case on hand, the last alleged anti- social activity occurred on 10.1.2012. But, the second respondent has passed Ext.P1 detention order only on 26.5.2012. When the maximum period for which a person can be detained is determined to be six months, a delay of 4 1/2 months in passing the detention order after the last anti-social activity can only be considered as an inordinate delay. Here, no explanation has been given for the delay either in Ext.P1 detention order or in the counter affidavits filed by the respondents 1 and 2. Therefore, the inordinate and unexplained delay occurred in this case is fatal in nature and hence, it vitiates the detention order. Such a delay, definitely, cast doubt on the genuineness of the subjective satisfaction of the detaining authority. It can be inferred from the WPCR.552/13 14 inordinate and unexplained delay that the second respondent was not satisfied regarding the necessity for detaining the detenu for the purpose of preventing him from committing anti-social activities. Such delayed order cannot be considered as one passed for protecting the members of the general public from the anti-social activities as claimed by the second respondent in Ext.P1."

11.A close reading of the judgments referred to above would show that even if delay has occurred, it can be fatal to an order of detention, only if the delay is unexplained. Therefore, the question to be considered in this case is whether, on facts, it can be held that any delay has occurred and if delay has occurred, whether it has been explained or not.

12.In so far as this case is concerned, it is true that the last prejudicial activity alleged against the detenu was on 26.5.2013 and Ext.P1 order of detention was passed only on 25.9.2013. However, while examining this issue, the peculiarity of this case that 9 criminal cases relied on by the detaining authority in Ext.P1 order were allegedly committed by the detenu within the jurisdiction of six police WPCR.552/13 15 stations, viz., Puthukkad, Peechi, Ollur, Cherppu and Thrissur East Police Station. It was relying on these cases that the Sub Inspector of Police, Ollur Police Station, within whose jurisdiction also cases are registered, made the preliminary report dated 10.8.2013, based on which, Ext.P3 report under Section 3(1) of the Act was made by the sponsoring authority to the detaining authority.

13.Admittedly, to attract section 2(p)(iii) of the Act, the person concerned must be alleged to have committed at least three offences of the nature specified in the section within a period of 7 years. Therefore, the Sub Inspector of Police, Ollur Police Station could have made the preliminary report on 10.8.2013 only after collecting details from the other 5 Police Stations. We cannot expect him to have completed this process within any unrealistically short period and in the process if he has taken a reasonable time, we cannot find fault with him for having delayed his report. On receipt of the report dated 10.8.2013, the third respondent made his report under Section 3 of the Act on 17.8.2013. WPCR.552/13 16 Similarly, the second respondent could not have mechanically acted upon the report and passed Ext.P1 order and could have passed the order only after due application of mind and on evaluating the entire materials made available to him. If that be so, Ext.P3 report dated 17.8.2013 made by the third respondent to the second respondent or Ext.P1 order passed by the second respondent on 25.9.2013 cannot be said to be vitiated by delay. For these reasons, on the facts of this case, we are not in a position to hold that in the light of the principles laid down by the Apex Court or this Court in the judgments referred to above, Ext.P1 order is illegal on the ground of delay.

14.In so far as the letter of his counsel dated 25.10.2013 enclosing Exts.P5 and P6 representations dated 26.10.2013 are concerned, these representations were received by the Jail Superintendent on 28.10.2013. In this context, the first contention urged by the learned counsel for the petitioner is that Ext.P6 representation addressed to the Advisory Board was not forwarded to the Board and that the WPCR.552/13 17 same was not received by the Board when the counsel for the detenu was heard by it on 5.11.2013.

15.However, the files produced by the learned Government Pleader shows that this contention of the learned counsel is factually incorrect. At page 359 of the files, the letter dated 28.10.2013 issued by the Superintendent of the Central Prison, Kannur forwarding Exts.P5 and P6 representations to the Principal Secretary, Home and Vigilance SSA Department, Government Secretariat, Trivandrum and to the Secretary, Advisory Board is available. In column 25 of the report of the Advisory Board available at page 391 of the files, it is stated that a representation was submitted by the detenu to the Advisory Board. The detenu does not have a case that apart from Ext.P6, he had made any other representation to the Board. Moreover, from pages 407 onwards, original of Ext.P6 representation made by the detenu is also available. Therefore, the submission of the learned counsel for the petitioner that the Jail Superintendent did not forward Ext.P6 representation to the Advisory Board and that the WPCR.552/13 18 representation had not reached the Board on 5.11.2013, when the counsel was heard is factually incorrect and is liable to be rejected.

16.The further contention raised by the learned counsel for the petitioner is that Ext.P5 representation received by the Government was not forwarded to the Advisory Board. On facts, it is clear that this representation was received by the Government on 4.11.2013 and that on 5.11.2013, the Government passed an order rejecting the representation. In other words, respondents have no case that the representation received by the Government on 4.11.2013 was forwarded to the Advisory Board. On the other hand, what they say is that reference to the Advisory Board under section 9 was made by the Government on 25.10.2013 and that since Ext.P5 representation was received only on 4.11.2013, they did not forward the same. The question is whether the order of detention can be said to be vitiated for the above reason.

WPCR.552/13 19

17.In so far as this aspect of the matter is concerned, Section 9 of the Act deals with Advisory Board and in this provision, it is stated that in every case where a detention order has been made under the Act, the Government shall, within three weeks from the date of detention, place before the Advisory Board, the grounds on which the order has been made and the representation, if any, made by the person affected, and, in the case where the order has been made by an authorised officer, the report of such officer under Section 3(3) of the Act.

18.In support of his contention that a representation received even after a reference has been made to the Advisory Board is liable to be forwarded to it, learned counsel for the petitioner relied on the Apex Court judgment in K.M.Abdulla Kunhi & B.L.Abdul Khader v. Union of India [AIR 1991 SC 574], rendered in the context of the COFEPOSA Act, where it was held thus:

"The representation may be received before the case is referred to the Advisory Board, but there may not be time to dispose of the representation before referring the case to WPCR.552/13 20 the Advisory Board. In that situation the representation must also be forwarded to the. Advisory Board along with the case of the detenu. The representation may be received after the case of the detenu is referred to the Board. Even in this situation the representation should be forwarded to the Advisory Board provided the Board has not concluded the proceedings. In both the situations there is no question of consideration of the representation before the receipt of report of the Advisory Board. Nor it could be said that the Government has delayed consideration of the representation, unnecessarily awaiting the report of the Board. It is proper for the Government in such situations to await the report of the Board."

19.In so far as this case is concerned, we are afraid that the said principle cannot be fully applied to the facts of this case for various reasons. First of all, Section 9 of the Act provides that the representation to be forwarded by the Government to the Advisory Board is the representation, if any, received by the Government prior to the making of the reference to the Board. In so far as this case is concerned, admittedly, reference to the Board was made by the Government on 25.10.2013 and Ext.P5 WPCR.552/13 21 representation made by the detenu was received by the Government only on 4.11.2013. In other words, the representation in question was not made by the detenu at any time prior to the reference in question.

20.Secondly, Exts.P5 and P6 representations are identically worded and were forwarded by the petitioner's counsel on the same date. On perusal of the facts, we have also found that Ext.P6 representation made by the detenu was available before the Advisory Board at the time when the Advisory Board heard the counsel for the detenu on 5.11.2013 and made its report to the Government on 11.11.2013. In other words, the Advisory Board had before it the very same representation made by the detenu before the Government and it was considering that representation also that the Advisory Board made its report dated 11.11.2013. In these factual background, we cannot say that there was any non compliance of Section 9 of the Act or that the Advisory Board did not have opportunity to advert to the contentions urged by the detenu or that any kind of prejudice was caused to the detenu on account of WPCR.552/13 22 the non forwarding of Ext.P5 representation. Therefore, this contention also has to be rejected and we do so.

21.Learned counsel then contended that Ext.P5 representation was received by the Government on 4.11.2013 and that without any application of mind and in a hurried manner, the Government passed order dated 5.11.2013 rejecting the representation. According to him, as held by the Apex Court, since reference was already made by the Government to the Advisory Board and the report was awaited, consideration of the representation should have been kept in abeyance awaiting the report of the Advisory Board as held by the Apex Court in K.M.Abdulla Kunhi (supra). The contention that the order dated 5.11.2013 was passed by the Government hurriedly and without any application of mind has to be dealt with in the light of the contents of the order itself. This order is available at pages 377 and 378 of the files produced by the learned Government Pleader and the relevant portion of which reads thus: WPCR.552/13 23

"Xb:HO_g\Am D^C{af? dVi fC_AaKa.eD^C {af? H_gUFH" 04.11.2013_W XVA^x_Ha \M_:na.eH_gUFH"

&McLx U5aMm dI_XX_MW fXd5Gy_ U_VFN^O_ Ix_gV^G_:na.eD^CZfAD_fx Dc[bV <_\oO_f\ U_U_G fI^\_Xm XmgxWHa5{_W H_\U_\aU 9 d5_N_HW g5Xa5 {^Ca 5xaDW D?CW )JxU_HaeIx_7C_:n_GaUDm. 'D_Ha IaygN D^CZ xIm d5_N_HW g5XmXa5{_WAb?_ (hd5" H".517/2010, 1527/2011) )ZfMG_GaIm.edIXqaD g5Xa5Z gI^\`Xm XbgNGO^ x<_XmxV f:OqUO^OD_H^W 5xaDW D?CW )JxU_Ha Ix_7C_:n_G_\o.eD^CZ )ZfMG g5Xa5f{\o^" DfK 'LcX V_f^H_ON", &OaG H_ON" .K_UO_f\ U_U_G U5aMa5Z dI5^x" x<_XmxV f:OnfMG 7axaDxN^O 5ax5cDcB{aN^O_ LtfMGUO^Ca.eH^G_f\ X^G^xC H_ONBZAm 5`]mfMGm <`U_A^fD XNbY XaxfOmAa", ILo_5m 3VAy_Ha" M`WC_O^O_ H_xLx" 5ax5cDcB{_W /VfMGaf5^I_x_AaK D^Cf{ U`Ia" 5ax5cDcB{_W .VfM?aKD_W H_Ka" D?OaKD_Ha 5xaDW D?C\_W I^VM_gAIDm %Dc^UVcN^fCK )JN gL^icJ_fa %?_XmE^HJ_\^Ca DcVmVbV <_\o^ N<_XmgdxGm D^CZfAD_fx 5xaDW D?CW )JxUm IayfM?aU_:n_GaUDm.

g5Xa5{_W <^Nc" \M_:na .KDm g5x{^ X^NbYc U_xai dIUVJHBZ (D?OW) H_ONdI5^x" 5xaDW D?CW )JxUm IayfM?aU_AaKD_Ha D?XmXN^5aK_\o. D^CW )ZfMG %UX^HfJ g5X_H^XmIFN^O X"MU" H?KDm 26.05.2013_ H^Ca.e<_\o^ gI^\`Xm gNG^U_, Dc[bV X_x_ g5x{^ X^NbYcU_xai dIUVJHBZ (D?OW) H_ON" dI5^xNaU %L_N y_gM^VGm XNVM_:nDm 17.08.2013 _\a" 5xaDW D?CW )JxUm IayfM?aU_:n_x_AaKDm 25.09.2013 _\a" 5xaDW D?CW )JxUm H?M^A_ODm 07.10.2013 _\aN^Ca.eH?I?_d5NBZ IbVJ_O^A_ 5xaDW D?CW )JxUm IayfM?aU_AaKD_\aU Hc^ON^O 5^\D^NX" N^dDgN 'A^xcJ_W )I^O_GaUa.

2x^f{ 5xaDW D?C\_W I^VM_AaKD_g\OmA^O_ Xb`5x_gAI MxC8?H^IxN^O xf^UcUXmE5{a" Nxm WPCR.552/13 24 Xmx^xcbGy_ H?I?_d5NB{a" D^C{af? 5^xcJ_\a"

5cDcN^O_ I^\_:n_GaIm.

                H_gUFH"    D`VM^AaKD_Ha NaXIm H_gUF5fH
           gHx_W     g5ZAaKD_gH^     %gAbgAx_fa    U^F"

g5ZAaKD_gH^ g5x{^ X^NbYc U_xai dIUVJHBZ (D?OW) H_ONJ_W UcUXmEO_\o.

H_ONIxN^O_ H_\H_WA^JD^OD_H^W g5x{^ X^NbYcU_xai dIUVJHBZ (D?OW) H_ONdI5^x"

D^CZfAD_gx Dc[bV <_\o^ N<_Xmgd?Gm IayfM?aU_:n 5xaDW D?C\_W H_Km gN^:_M_ACfNK D^C{af? H_gUFHJ_f\ &UVc" H_xX_AaKa.

22.Reading of the order shows that the Government have dealt with each of the contentions raised by the detenu in Ext.P5 representation submitted by him and therefore even though the order has been passed on the day next to the receipt of the representation, having regard to the contents of the order, we are unable to find any fault with the Government that it was passed without any application of mind.

23.As far as the contention that the Government should have awaited the report of the Board is concerned, having regard to the fact that after the report dated 11.11.2013 was received from the Advisory Board, Government passed order dated 18.11.2013 confirming the order of detention as provided under Section 10 WPCR.552/13 25 (4) of the Act, we do not think that the petitioner can with any justifiable reason contend that the Government acted illegally in passing the order dated 5.11.2013 rejecting Ext.P5 representation. Therefore, this contention also does not, in our view, merit acceptance.

24.This takes us to the contention of the learned counsel for the petitioner that while passing Ext.P1 order of detention, Ext.P4 order passed by the Sessions Judge, Thrissur in Crl.M.C.No.1671/13 enlarging the detenu on bail in Cr.No.890/13 of Viyyur Police Station should have been made available to him and should have been dealt with by the detaining authority. It is true that in Ext.P4 order, the learned Sessions Judge has enlarged the detenu on bail in Cr.No.890/13 of Viyyur Police Station and the relevant portion of the order reads thus;

"Thus considering the totality of the case even though the prosecution got a case that the petitioners shall not be released on bail and even trial has to be conducted by putting the petitioners behind the bars, I am not inclined WPCR.552/13 26 to accept the said submission considering the nature of the offence and pressure of work in the Sessions Court at Thrissur. Thus considering the totality of the case and the stage of investigation, the petitioners are granted bail on the following conditions:

i. The petitioners shall be released on bail on each of them executing a bond for Rs.25,000/- each with two solvent sureties for the like sum each to the satisfaction of the learned Judicial First Class Magistrate No.1, Thrissur.

ii. The petitioners shall appear before the Investigating Officer on all Saturdays in between 10 am and 12 Noon, until further orders.

iii. The petitioners shall not influence or intimidate the witnesses.

iv. The petitioners shall co-operate with the trial.

On the above conditions, this regular bail application allowed."

25.It is also true that neither Ext.P3 report of the sponsoring authority nor Ext.P1 order passed by the detaining authority show that this order was made WPCR.552/13 27 available to the detaining authority either at the time when the proposal was made or at any time prior to the issue of the detention order. The requirement of law that if a person who is enlarged on bail is to be detained in preventive detention, the detaining authority should consider the relevance of the bail order while passing the order, seems to be settled. In this connection, learned counsel for the petitioner placed reliance on the following judgments of the Apex Court and this Court.

26.The first one relied on by the learned counsel was the judgment of the Apex Court in Abdul Sathar Ibrahim Manik v. Union of India [AIR 1991 SC 2261] where in para 12(6), it was held thus;

"(6) In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a-vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu."

WPCR.552/13 28

27. Subsequently, the Apex Court again had occasion to deal with a similar issue in its judgment in Rushikesh Tanaji Bhoite v. State of Maharashtra [(2012) 2 SCC 72], where in paragraphs 7 to 13, it was held thus;

7. The admitted position is that the detenu was arrested in connection with the above crime on 15.8.2010 and he was released on bail by the Judicial Magistrate First Class, Dharangaon on that very day. One of the conditions imposed in the order of bail was that the detenu would appear at Dharangaon Police Station on every Monday between 10.00 am to 12 o' clock till the charge-sheet was filed. Later on, the detenu made an application before the Judicial Magistrate, First Class, Dharangaon seeking relaxation of the above condition. That application was allowed and the above condition was relaxed by the Judicial Magistrate concerned on 4.1.2011.

8. It would be, thus, seen that the order releasing the detenu on bail in the crime registered on 14.8.2010 and the order relaxing the bail condition were passed by the Judicial Magistrate, First Class, Dharangaon much before the issuance of the detention order dated 10.1.2011. However, the detention order or the grounds supplied to the detenu do not WPCR.552/13 29 show that the detaining authority was aware of the bail order granted in favour of the detenu on 15.8.2010.

9. In a case where the detenu is released on bail and is enjoying his freedom under the order of the court at the time of passing the order of detention, then such order of bail, in our opinion, must be placed before the detaining authority to enable him to reach at the proper satisfaction.

10. In the present case, since the order of bail dated 15.8.2010 was neither placed before the detaining authority at the time of passing the order of detention nor the detaining authority was aware of the order of bail, in our view, the detention order is rendered invalid. We cannot attempt to assess in what manner and to what extent consideration of the order granting bail to the detenu would have effected the satisfaction of the detaining authority but suffice it to say that non-placing and non- consideration of the material as vital as the bail order has vitiated the subjective decision of the detaining authority.

11. A three-Judge Bench of this Court in Rekha v. State of T.N. decided recently held as under (SCC p.254. Para 25).

WPCR.552/13 30

"25. In this connection, it may be noted that there is nothing on the record to indicate whether the detaining authority was aware of the fact that the bail application of the accused was pending on the date when the detention order was passed on 8.4.2010. On the other hand, in Para 4 of the grounds of detention it is mentioned that "Thiru.Ramakrishnan is in remand in Crime No.132 of 2010 and he has not moved any bail application so far'. Thus, the detaining authority was not even aware whether a bail application of the accused was pending when he passed the detention order, rather the detaining authority passed the detention order under the impression that no bail application of the accused was pending but in similar cases bail had been granted by the courts. We have already stated above that no details of the alleged similar cases has been given. Hence, the detention order in question cannot be sustained."

12. In Rekha, the detention order was held to be bad as the detaining authority was not aware of the fact that the bail application of the detenu was pending on the date when the detention order was passed. In the present case, the detenu was already released on bail but the detaining authority was not aware of the fact of grant of bail to the detenu. WPCR.552/13 31

13. A reference to the decision of the majority view in Vijay Narain Singh v. State of Bihar may not be out of context. In para 32 of the judgment, Venkataramiah, J. (as His Lordship then was) speaking for the majority observed as follows:(SCC p.36) "32......When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court."

28.This Court also had occasion to deal with an identical case in Joseph v. State of Kerala (2011(1) KLT 272), where, in paragraphs 12 to 15, it was held thus:

"12. The learned counsel alternatively argues that if, as a matter of fact, the detaining authority were satisfied that the detenu was on bail from 8.4.10 on the basis of Ext.P3 order, it was incumbent on the detaining authority to consider whether such order granting bail passed very recently/immediately/ shortly prior to the order of detention, was sufficient to ensure the result of preventing commission of future crimes (i.e., anti-social activities). For that purpose the conditions imposed in the said WPCR.552/13 32 recent order granting bail must have been considered by the detaining authority. The detaining authority must have pointedly considered whether the conditions imposed in that order granting bail were sufficient to achieve the result of preventing the detenu from committing anti-social activities. Of course, it was open to the detaining authority to feel that in spite of such a recent order granting bail subject to very strict conditions as indicated in Ext.P3 further preventive detention was necessary. To come to that question, mind must have been properly and pointedly applied. On that aspect proper application of mind can never take place without and before the detaining authority peruses Ext.P3 order, considers the nature of conditions imposed and the possibility of the detenu committing offences later in spite of such conditions of bail.

13. It is significant that the detaining authority did not apply his mind to Ext.P3 order. Nay, it is not disputed that the sponsoring authority i.e., the 3rd respondent also did not forward such a crucial document to the detaining authority for his consideration.

14. The learned counsel for the petitioner contends that the decision of the detaining authority was one of moment and of great consequence so far as the detenu is concerned.

WPCR.552/13 33

His cherished sacrosanct constitutional right of personal liberty and freedom was infringed not because he committed any offence; but because the executive authority anticipated or prophesised that he may commit such offences in future and hence needs to be deterred from committing such offences. Proper application of mind is mandatory. Without and before considering Ext.P3 order and the question whether the very strict conditions 1 to 4 imposed in Ext.P3 is sufficient to deter the detenu from committing future offences, a proper application of mind cannot be said to have taken place. In this view of the matter, the learned counsel for the petitioner argues that there is costly, vital and fatal non- application of mind to the relevant and vital circumstances.

15. The learned counsel for the petitioner relies on a host of precedents ending with the decision in Philip v. State of Kerala (2009 (3) KLT SN 32 (C. No.35)). There is no dispute with the proposition of law that all relevant circumstances must be considered and that mind must be applied specifically and pointedly to all relevant circumstances before a valid order of detention is passed. In this case, we note that the order and the grounds of detention reveal confusion of thought in the mind of the detaining authority as to whether the detenu was on bail or in judicial custody on WPCR.552/13 34 the relevant date i.e., 13.5.10. Even if we ignore that and accept the contention that the detaining authority knew that the detenu was on bail, the fact remains that Ext.P3 order granting bail subject to draconian conditions was not placed before the detaining authority by the sponsoring authority; nor did the detaining authority pointedly apply his mind to the question whether in spite of those conditions an order of preventive detention deserves to be passed under S. 3 of the KAAPA. We are in agreement with the learned counsel for the petitioner that there has been no proper application of mind."

29.We do not propose to burden this judgment with more judgments on this aspect of the matter. Thus, from the above judgments, it is clear that the detaining authority should have been provided with the bail petition and bail order and the sponsoring authority should not have failed in doing so.

30.In this context, it is relevant to note the following provisions contained in section 7(4) of the Act, which read thus:

"7. Grounds of order of detention to be disclosed:

(1) When a person is arrested xxx xxx xxx WPCR.552/13 35 (2) xxx xxx xxx (3) xxx xxx xxx (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."

As per this provision, merely because one or more of the facts or circumstances relied on against the detenu are non-existent, irrelevant or invalid for any reason whatsoever, order of detention will not be deemed invalid and the order shall be deemed to have been made by the detaining authority after having been satisfied about the need for detention whether, with reference to the remaining facts and circumstances provided, the minimum conditions for classifying a person as a known rowdy are satisfied. The minimum conditions that are required to be satisfied for classifying a person as a known rowdy WPCR.552/13 36 includes the existence of three criminal cases of the nature mentioned in section 2(p)(iii) of the Act. Therefore, even if the last prejudicial activity relied against the detenu is excluded for the reason that Ext.P4 bail order was not placed before the detaining authority, still, the detaining authority had with him the remaining 8 cases and therefore, in view of section 7(4) of the Act, this Court is bound to examine whether the order can be sustained with reference to those remaining 8 cases.

31.Further, in the judgment in Rushikesh Tanaji Bhoite (supra), after holding that the bail order should have been considered by the detaining authority, in so far as the other cases that were also reckoned by the detaining authority to order the detention of the person concerned, the Apex Court in paragraph 14 of the judgment held thus;

"The other offences referred to in the order of detention suffer from remoteness and want of proximity to the order of detention. None of the criminal cases, except the offence registered on 14.8.2010, referred to in the WPCR.552/13 37 grounds for detention, can be said to be proximate to the order of detention."

32.Therefore, even if the case in relation to which the bail order is not placed before the detaining authority is excluded, if other cases that are reckoned by the detaining authority are proximate in time to the detention order, the detention order will still remain valid. It is therefore that the Apex Court held that the other offences referred to in the order suffer from remoteness and want of proximity to the order of detention. In such circumstances, the question to be examined in so far as this case is whether after exclusion of Cr.No.890/13, the remaining cases that are reckoned by the detaining authority can be said to suffer from remoteness and want of proximity to the order of detention.

33.As we have already stated, in so far as this case is concerned, out of 11 cases involving grievous offences in which the detenu is an accused, 9 cases alone were reckoned by the detaining authority to classify him as a 'known rowdy' and to order his WPCR.552/13 38 detention under Section 3 of the Act. The last case, Cr. No.890/13 of Viyyur Police Station is a case in which the detenu was enlarged on bail by Ext.P4 order. The occurrence in relation to which the said crime was registered was on 26.5.2013. On account of the failure of the sponsoring authority to place Ext.P4 order before the detaining authority, we have to exclude Cr.No.890/13 from the reckoning. If so excluded, the surviving last prejudicial activity in relation to which Cr.No.1808/12 of Puthukkad Police Station was registered was on 22.11.2013. The question is whether in relation to Ext.P1 detention order passed on 25.9.2013, the said case can be said to suffer from remoteness or want of proximity.

34.As we have already stated, 9 cases involving offences under Sections 302, 307, 395 and other grievous offences were allegedly committed by the detenu within the jurisdiction of 6 police stations. Records also show that against the detenu, proceedings under Section 107 Cr.PC were initiated as Cr.No.1859/12 at the Puthukkad Police Station and that he had executed an interim bond. It is WPCR.552/13 39 thereafter that he continued the anti-social activities. We have already found that the preliminary report which led to Ext.P3 report was made by the Sub Inspector of Police, Ollur Police Station. He could not have made the report except after detailed enquiry and collection of materials from the different police stations. This necessarily involves time. When proximity and remoteness is assessed, this Court is bound to accept a realistic yardstick and cannot adopt a mechanical basis and adopt any fixed time frame. If such a realistic and flexible time frame is to be adopted, we cannot say that the other 8 offences which are also relied on in Ext.P1 order suffer from any remoteness or want of proximity especially in the context of Section 2(p) of the Act which enables the authorities to classify a person as a 'known rowdy' taking into account three offences of the nature specified therein committed by him within a span of seven years as calculated from the date of the order of detention.

WPCR.552/13 40

35.In the result, we do not find any illegality in Ext.P1 order justifying interference in this writ petition.

Writ petition is, therefore, dismissed.

Sd/-

ANTONY DOMINIC, Judge.

Sd/-

P.D.RAJAN, Judge.

kkb.

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