IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 265 of 2008(S)
1. ELIZEBATH GEORGE, AGED 80 YEARS,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE DISTRICT MAGISTRATE AND
3. THE SUPERINTENDENT OF CENTRAL PRISON,
4. THE DISTRICT SUPERINTENDENT OF
For Petitioner :SRI.M.G.KARTHIKEYAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :07/10/2008
O R D E R
WP.(Crl.)Nos.265,
266 & 267/2008 -1-
P.R.Raman &
T.R. Ramachandran Nair, JJ.
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W.P.(Crl.) Nos.265, 266 and 267 of 2008-S
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Dated this the 7th day of October, 2008.
JUDGMENT
Ramachandran Nair, J.
These writ petitions are filed seeking for the issuance of a writ of
habeas corpus for the production of detenus, viz. Sri. Jojo George,
Mujeeb Rahiman and Sheen Mondy Jose @ Saju; to release them and; to
quash Ext.P1 order of detention. Since these writ petitioners raise common
issues, they are heard together and are disposed of by a common judgment.
2. We have heard the learned Senior Counsel Sri. C.C. Thomas on
behalf of the petitioners and the learned Additional Director General of
Prosecutions, Sri. K.K.Ravindranath on behalf of the respondents.
3. The short facts leading to the disposal of the cases are the
following:-
In W.P.(Crl) No.265/2008, the detenu is one Jojo George; in W.P.
(Crl) No.266/2008, the detenu is one Mujeeb Rahiman and in W.P.(Crl)
No.267/2008, the detenu is one Sheen Mondy Jose @ Sabu. The orders of
detention are dated 25/06/2008, passed by the District Magistrate and
WP.(Crl.)Nos.265,
266 & 267/2008 -2-
District Collector, Palakkad. They have been issued under the power
conferred on the said Officer by the Kerala Anti-Social Activities
(Prevention) Act, 2007, (hereinafter referred to as the ‘Act’). It is stated in
the respective orders that the detenus are accused in Crime Nos.26/2008,
181/2006 and 663/2007 of various police stations. The sum and substance
of the allegation is that the detenus are arrayed as accused in different cases
registered as Crime Nos.26/2008, 181/2006, 263/2006 and 663/2007 for
smuggling illegal spirit. They have been aiding, abetting, conspiring,
executing smuggling of spirit and distributing spirit in Kerala with scant
respect to the law of the land . It is alleged that thus they have been
indulging in activities of transporting and distribution of spirit in violation
of the Abkari Act and are active members of an organised mafia involved in
smuggling of spirit into Kerala from neighbouring States and are ‘Known
Goondas under Section 2(c) of the Act.
4. The learned Senior Counsel for the petitioners while attacking
the orders of detention contended that the detenus will not come under the
definition of “known goonda” as per Section 2(o)(ii) of the Act, since there
is no seizure of alcohol/spirit from the detenu in the presence of the
witnesses. It is also contended that they cannot be termed as “known
rowdy” under Section 2(p) of the Act also. It is contended that going by
WP.(Crl.)Nos.265,
266 & 267/2008 -3-
Section 34 of the Abkari Act, only a person found committing an offence
punishable under the said Act alone is liable to be arrested and if at all the
allegations are correct, even then it is to be conceded that the detenus were
not present at the time of seizure of spirit in the four cases relied upon by
the respondents and there is also no evidence to show that the contraband
seized were under the control/possession of the detenus. It is on this
premise that the subjective satisfaction arrived at by the detaining authority
is attacked. It is also contended by relying upon Exts.P4 to P9 orders
passed by this Court and by the Sessions Court relating to the applications
for bail, etc. of the respective detenus that it has been found therein that
there are no materials to connect the accused with the crime. It is submitted
that regular bail has been granted under Section 41A of the Abkari Act after
hearing the prosecutor also. It is therefore contended that the detaining
authority has not applied its mind to the findings rendered by the Sessions
Court in those orders which have been passed after perusal of the case diary
also. It is therefore submitted that as these are materials which ought to
have been considered by the detaining authority, failure to consider the
orders and the findings rendered by the Sessions Court in those orders will
result in total non application of mind. It is therefore contended that there
is nothing to connect the detenus with the crimes concerned and in these
WP.(Crl.)Nos.265,
266 & 267/2008 -4-
cases as no charge-sheet has been filed, no report could have been
forwarded by the Police Officer concerned to the Superintendent of Police
to the detaining authority to issue the orders of detention. Our attention was
invited to the relevant provisions of the Act to contend for the position that
in the absence of the final report by the Investigating Officer under Section
173(2) of the Code of Criminal Procedure there could not have been any
basis for the issuance of the order of detention. During the arguments, it is
also pointed out that there is a violation of Section 7(2) of the Act as all the
relevant materials on the basis of which the detention has been found
necessary have not been communicated to the detenus.
5. Per contra, the learned Additional Director General of
Prosecutions submitted that the detenus in their representations have
themselves produced the orders on the bail applications and hence the non
supply of the same is not at all material. It is contended that herein there
were cogent materials by way of confession statement of the driver and the
confession of the accused/detenus of their involvement in the respective
cases and these materials would justify the orders of detention. It is also
submitted that copies of relevant documents relied upon by the detaining
authority have been supplied to the detenus and there is no violation of
either Section 7(2) of the Act or compliance of natural justice as enjoined by
WP.(Crl.)Nos.265,
266 & 267/2008 -5-
Article 22(5) of the Constitution of India and therefore, the action does not
suffer from any infirmity. It was also submitted that as far as the provisions
of the Act in question are concerned there need not be any final report by
the Investigating Officer for enabling the Superintendent of Police to submit
his report under Section 3(1) of the Act. It is pointed out that no less a
person that the Superintendent of Police has been conferred with power
under Section 3(1) of the Act to furnish information to the Government or
the authorised officer to exercise the power to order detention. The
Superintendent of Police was satisfied himself about the materials
forwarded by his subordinate Police Officer who has investigated the case
which formed the basis of his report to the detaining authority. it is
submitted that the confession statements of the driver before the police and
of the detenus themselves were material in the sense that they will connect
them to the commission of the crimes and, therefore, the orders of detention
do not suffer from any infirmity. It is argued that a final report filed under
Section 173(2) of the Code of Criminal Procedure is not required for
satisfying the conditions to invoke the relevant provisions of the Act.
6. Before going to the details of the arguments, we will extract
herein Section 2(o) of the Act which defines ‘known goonda’ including the
proviso and the explanation.
WP.(Crl.)Nos.265,
266 & 267/2008 -6-
2(o)”known goonda” means a goonda who had
been, for acts done within the previous seven years as
calculated from the date of the order imposing any
restriction or detention under this Act,–
(i)found guilty, by a competent Court or
authority at least once for an offence within
the meaning of the term ‘goonda’ as defined
in clause (j) of Section 2; or
(ii)found in any investigation or enquiry by a
competent police officer, authority or
competent Court on complaints initiated by
persons other than police officers, in two
separate instances not forming part of the
same transaction, to have committed any
act within the meaning of the term ‘goonda’
as defined in clause(j) of Section 2:
Provided 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 alcohol, spirit, counterfeit notes, sand, forest
produce, articles violating copyright, narcotic drugs,
psychotropic substances, or currency involved in
hawala racketeering may be included for consideration
though the report had resulted from an action initiated
by a police officer.
Explanation–An instance of an offence involving a
person, which satisfies the conditions specified in the
WP.(Crl.)Nos.265,
266 & 267/2008 -7-definition of known rowdy referred to in clause (p) of
Section 2 can also be taken into consideration as an
instance, along with other cases, for deciding whether
the person is a known goonda or not.”
7. The following decisions of the Apex Court have been relied
upon by the learned counsel on either side in support of their arguments:
Sanjeev Kumar Aggarwal v. Union of India and others (AIR
1990 SC 1202), Kamarunnisa v. Union of India and another
(AIR 1991 SC 1640), Union of India v. Paul Manickam and
another (AIR 2003 SC 4622), State of T.N. and another v.
Kethiyan Perumal ((2004) 8 SCC 780), Senthamilselvi v. State of
T.N. And another ((2006) 5 SCC 676), Sunila Jain v. Union of
India ((2006) 3 SCC 321), Usha Agarwal v. Union of India and
others ((2007) 1 SCC 295), Adishwar Jain v. Union of India and
another ((2006) 11 SCC 339), M. Ahamedkutty v. Union of India
and another ((1990) 2 SCC 1), Icchu Devi Choraria v. Union of
India and others ((1980) 4 SCC 531), Mukesh Tikaji Bora v.
Union of India and others ((2007) 9 SCC 28), Kartic Chandra
Guha v. The State of West Bengal (AIR 1974 SC 2149),
Kamarunnissa v. Union of India and another ((1991 SCC (Crl.)
88) and Smt. Poonam Lata v. M.L. Wadhawan and another (AIR
1987 SC 2098).”
8. First we will consider the question as to the requirements of
Section 2(o)(ii) of the Act. This is relevant to consider whether the detenus
WP.(Crl.)Nos.265,
266 & 267/2008 -8-satisfy the definition of “known goonda”. The section has two limbs, the
proviso and its explanation. Sub Section (i) is not applicable here because
the detenus have not been found guilty by any competent Court. To satisfy
clause 2(o)(ii) “the detenu should be one who had been found in any
investigation or enquiry by a competent police officer…………….. to have
committed any act within the meaning of the term ‘goonda’ as defined in
clause (j) of Section 2.” To attract the proviso there should be a report
filed by the Police Officer before a lawful authority in respect of an offence
consequent to the seizure, in the presence of witnesses, of alcohol, spirit,
etc. If there is such a report, such an offence can also be included for
consideration though the report had resulted from an action initiated by a
Police Officer. Here, the argument raised by the learned Senior Counsel
for the petitioners is that the seizure of alcohol, spirit, etc. should be from
their possession, in the presence of witnesses and herein, as the seizure has
not been effected from their possession in the presence of witnesses, the
said proviso is not attracted. Further, reliance is placed on Section 34 of
the Abkari Act. We are not impressed by the above argument. The proviso
lays emphasis on the seizure of alcohol, spirit, etc. in the presence of
witnesses and it is not conditioned that the alleged offender should be
apprehended from the scene itself followed by seizure in the presence of
WP.(Crl.)Nos.265,
266 & 267/2008 -9-witnesses. In many cases either the driver or the person concerned may be
escaping from the scene even before any seizure is effected and to insist
that the seizure should be in the presence of such accused in all cases to
attract the proviso, cannot be countenanced. What is provided is the report
filed by a police officer before a lawful authority “consequent to the seizure
in the presence of witnesses, of alcohol, spirit, etc.” That alone will satisfy
the legal requirement to attract the proviso. Therefore, we reject the said
argument raised on behalf of the petitioners.
9. Learned Senior Counsel for the petitioners relying upon Exts.P4 to
P9, vehemently argued that in the light of the findings rendered by this court
in Ext.P4 and by the Criminal courts concerned in Exts.P5 to P9, it is a case
where there is no material to connect the accused with any of the crime
alleged and thus there is total non- application of mind in passing the orders
of detention. It is pointed out that the finding rendered by the Sessions
Court in Ext.P6 and the other orders Exts.P7 to P9 will show that the court
was of the view that there are no materials to connect the accused with the
crime. It is pointed out that the said finding has been arrived at after
perusing the case diary also. In para 9 of Ext.P6, while dismissing the Crl.
Revision Petition filed by the State, it is observed by the Sessions Court that
no material has been produced to prove the involvement of the accused
WP.(Crl.)Nos.265,
266 & 267/2008 -10-persons before the Magistrate or before that court even during the hearing of
the revision petition. Our attention was also drawn to the observation by the
Sessions Court that even though the driver of the vehicle involved in Crime
NO.181/2006 was arrested on the spot itself, the police has no case that any
confession statement of the driver implicating the petitioners, was obtained.
In paragraph 7 of Ext.P7 judgment, it is observed by the Sessions Court that
the prosecution has not produced any material before the court to connect
the accused with the crime. Reference therein is in respect of Crime
No.26/2008 of Valayar Police Station. Ultimately, it was observed that the
case is of the year 2006 and till now the police has no case that the
petitioners are involved in the case and accordingly they were granted bail
on certain conditions. In para 8 also, there is a finding to the effect that
“there is no material produced by the prosecution to prove that their
continued detention in prison is essential for completing the investigation in
the case.” Thus, it is argued that there are no materials to connect the
detenus with the crimes and the findings rendered by the competent
criminal courts ought to have been considered by the detaining authority
before passing the orders of detention. It is therefore submitted that there is
no basis for the subjective satisfaction arrived at by the authority concerned.
It is stated that the attempt by the authority concerned is malafide in the
WP.(Crl.)Nos.265,
266 & 267/2008 -11-sense that the order of detention has been passed to nullify the orders
granting bail to them. It is also submitted that going by the legal effect of
Section 41-A of the Abkari Act, an application for bail will be disposed of
by the court only after giving an opportunity to the Public Prosecutor to
oppose the same and going by Sub-section (b)(ii) of Section 41-A of the
Abkari Act, bail can be granted only if the court is satisfied that there are
reasonable ground to believe that he is not guilty of such offence and he is
not likely to commit any offence while on bail. In the light of the above
provision, it is contended that this is a clear case where attempts have been
made to over-reach the orders passed by the competent criminal courts.
10. In reply, learned Addl. Director General of Prosecutions
submitted that the fact that the petitioners have obtained bail was within the
knowledge of the detaining authority as is evident from the clear mentioning
of the said fact in Ext.P1 itself and in the Ground of detention, Ext.P2. It is
pointed out that mere granting of bail by the criminal court will not prevent
the detaining authority in passing an order of detention and there is no legal
bar for the same. It is contended that the detaining authority was satisfied
from the materials produced before it, of the grounds for detaining the
detenus under Section 3 of the Act in order to prevent them from
committing any such acts alleged as their activities have become potential
WP.(Crl.)Nos.265,
266 & 267/2008 -12-threat to maintenance of peace and public order in the society. It is further
pointed out that even though the Sessions Court has found in various
orders that no materials have been made available to connect the accused, in
fact there were materials like confession statement of the driver who was
arrested earlier and also of the accused detenus. It is therefore submitted
that the findings rendered by the Sessions Court in Exts.P6 to P9 about the
absence of materials, is wrong and the State had taken steps to challenge
those orders before this court. In fact, before completion of the hearing it
was submitted by the learned counsel that already Crl.M.Cs. have been filed
before this court on which notice has been ordered to the accused. It is
stated that the reasons for not producing the case diary had also been
explained before the Sessions Court in the objection filed by the Public
Prosecutor and thus, it is not a case where there was absence of materials to
connect the accused with the crime. It is further submitted that the
detaining authority has considered the entire materials including the
confession statement as mentioned above, while passing the order of
detention and he has applied his mind to all the circumstances also.
11. It is clear from Ext.P1 and P2 orders that the detaining authority
was aware that the detenus have been granted bail in Crime Nos.26/2008
and 181/2006. It is further stated that there is every likelihood of the
WP.(Crl.)Nos.265,
266 & 267/2008 -13-detenus getting bail in Crime No.663/2007 of Kayamkulam Police Station
also. Thus, it is not a case where the authority concerned was unaware
about the orders granting bail. Learned Addl. Director General of
Prosecutions is well founded in relying upon the principles stated by the
Apex Court in Kartic Chandra Guha v. The State of West Bengal and
others (AIR 1974 SC 2149) to contend for the position that even if there is
any likelihood of releasing the accused on bail, it is open to the detaining
authority to pass orders of detention. It was held in para 4 of the above
judgment that the District Magistrate was entitled to pass the order of
detention even in such a case to prevent the accused from acting in a manner
prejudicial to the maintenance of ‘public order’. Similar is the circumstance
herein also. Even though the accused had been granted bail in two cases the
likelihood of the detenus getting bail and indulging in smuggling of spirit,
etc. had been considered by the detaining authority and there is no legal bar
in passing the orders of detention. This principle has been reiterated in
Sanjeev Kumar Aggarwal v. Union of India and others (AIR 1990 SC
1202) also. Therefore, we are of the view that the fact that the applications
for bail have been allowed in two cases and there was possibility of getting
bail in Crime No.663/2007 will not deter the detaining authority from
passing an order of detention, if circumstances existed. The subjective
WP.(Crl.)Nos.265,
266 & 267/2008 -14-satisfaction of the authority concerned is not a matter for judicial review by
this court in these proceedings and this court will not be justified in
substituting our opinion with that of the detaining authority. Therefore, the
argument raised by the petitioners that there is total non-application of
mind is not correct and we reject the said argument. It is true that under
Section 41-A of the Abkari Act, the court has to satisfy, while considering
the application for bail, that there are reasonable ground to believe that he
is not guilty of such offence and that he is not likely to commit any offence
while on bail. In the light of the relevant provisions of the Act there is no
bar for the detaining authority in passing an order of detention, as what is
relevant is only whether the detention is justified on the facts placed before
the detaining authority. The principles reiterated by the Apex Court in
Kamarunnissa v. Union of India and another (AIR 1991 SC 1640) is
apposite to the context. It was held in para 13 of the judgment that “from
the catena of decisions referred to above it seems clear to us that even in
the case of a person in custody a detention order can validly be passed
(1) if the authority passing the order is aware of the fact that he is
actually in custody; (2) if he has reason to believe on the basis of
reliable material placed before him (a) that there is a real possibility of
his being released on bail, and (b) that on being so released he would in
WP.(Crl.)Nos.265,
266 & 267/2008 -15-all probability indulge in prejudicial activity and (3) if it is felt essential
to detain him to prevent him from so doing. If the authority passes an
order after recording his satisfaction in this behalf, such an order
cannot be struck down on the ground that the proper course for the
authority was to oppose the bail and if bail is granted notwithstanding
such opposition to question it before a higher Court.”
12. The next point is whether the provisions of Section 2(o)(ii) of the
Act are satisfied in this case. The argument raised is that there should have
been finding in an investigation against the detenu and normally in a
criminal investigation under the provisions of the Code of Criminal
Procedure, only after conclusion of the investigation and by filing a report
under Section 173(2) alone an investigating officer could be said to have
found that the accused has committed an offence and in this case that stage
has not reached at all and therefore the pre-conditions to attract the
provisions are not satisfied. It is pointed out that in the absence of such a
report by the investigating officer, merely on the basis of the First
Information Report and the alleged confession statement the detaining
authority ought not have come to a conclusion that the detention of the
detenus is necessary. It is pointed out that as far as the Act is concerned,
there are no specific provisions as regards the investigation of various acts
WP.(Crl.)Nos.265,
266 & 267/2008 -16-to satisfy the definition of ‘goonda’ and ‘known goonda’ and therefore resort
has to be made to the provisions of the Cr.P.C. to understand the real
purport of the words used in Section 2(o)(ii) also unless there is a report
under Section 173(2) of the Cr.P.C. it cannot be said that the investigating
officer would have formed an opinion that the accused has committed an
offence .
13. Learned Addl. Director General of Prosecutions contended that
such a a pre-condition cannot be imported to the above provision at all. It
was submitted that a senior officer of the department like the Superintendent
of Police is submitting a report before the detaining authority which is
evident from Section 3 of the Act and the detaining authority before passing
the order of detention will have to enter satisfaction on perusing such a
report along with the materials and hence it cannot be said that a report
under Section 173(2) of the Cr.P.C. is must for proceeding under the Act.
The Superintendent of Police being a higher functionary, no malice can be
attributed also and he will be submitting the report after perusing the case
diary and based on the materials supplied by the investigating officer and
therefore there is no lacuna in the procedure adopted.
14. It is true that the crucial words used in Section 2(o)(ii) is “found
in any investigation or enquiry by a competent police officer, authority or
WP.(Crl.)Nos.265,
266 & 267/2008 -17-competent court………..”. It is relevant to notice that the Police Officer has
to rely on the investigation or enquiry to find that the person “committed
any act within the meaning of the term “goonda” as defined in clause (j) of
Section 2. The usage of the words “any act” is important. It is not
synonymous with the words “any offence”. Even otherwise, the provision
for an “enquiry by a competent police officer” is also significant. The
principles reiterated by the Apex Court in Union of India v. Paul
Manickam and another (AIR 2003 SC 4622) are relevant herein. It has
been held in para 14 that “in case of preventive detention no offence is
proved, nor any charge is formulated and the justification of such
detention is suspicion or reasonability and there is no criminal
conviction which can only be warranted by legal evidence. Preventive
justice requires an action to be taken to prevent apprehended
objectionable activities. [See Rex v.Hallidey (1917 AC 260): Mr.Kubic
Dariusz v.Union of India and others (AIR 1990 SC 605)]. But at the
same time, a person’s greatest of human freedoms, i.e. personal liberty
is deprived, and, therefore, the laws of preventive detention are strictly
construed, and a meticulous compliance with the procedural safeguard,
however, technical is mandatory. The compulsions of the primordial
need to maintain order in society, without which enjoyment of all
WP.(Crl.)Nos.265,
266 & 267/2008 -18-rights, including the right of personal liberty would lose all their
meanings, are the true justifications for the laws of preventive
detention. This jurisdiction has been described as a “jurisdiction of
suspicion”, and the compulsions to preserve the values of freedom of a
democratic society and social order sometimes merit the curtailment of
the individual liberty.” We are of the view that a final report as provided
under Section 173(2) is not a pre-condition to attract the said provision.
Preventive detention is anticipatory and preventive. Thus, it is a case where
the detaining authority will have to satisfy itself of the possibilities of the
person indulging in acts contemplated by the respective provisions.
Therefore, a final report as envisaged under Section 173(2) of the Cr.P.C.
as such is not essential for an action under Section 3 of the Act. Even
though investigations are pending against the detenus who are accused in
various crimes and is yet to be completed for various reasons, it will not
prevent the detaining authority from examining the matter to arrive at the
subjective satisfaction, even in the absence of a final report. Herein, as
contended by the Addl. Director General of Prosecutions, there is a report
by the Superintendent of Police along with the materials supplied by him
which alone is the pre-requisite for action under Section 3 of the Act.
Therefore, we reject the said contention.
WP.(Crl.)Nos.265,
266 & 267/2008 -19-15. The next question is whether Section 7(2) of the Act was
complied with by the respondents after the order of detention was passed
and executed. Section 7 (2) obliges the authorities concerned to supply to
the detenu copies of relevant documents on the basis of which he is
considered as a “known goonda”. In view of the contentions raised by the
parties on either side, we feel it is profitable to extract Sections 7(1) and 7
(2) of the Act which are as follows:
” 7(1) When a person is arrested in pursuance of a
detention order, the officer arresting him shall read out
the detention order to him and give him a copy of such
order.7(2) The grounds of detention, specifying the instances
of offences, with copies of relevant documents, as far as
practicable, on the basis of which he is considered as a
“known goonda” or “known rowdy” and giving such
materials-relating to his activities on the basis of which
his detention has been found necessary, shall be
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 acknowledgment, 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.”WP.(Crl.)Nos.265,
266 & 267/2008 -20-This point was raised during the arguments, even though it is not
specifically taken as a ground in the writ petitions. Relying upon the
decisions of the Apex Court in Smt. Icchu Devi Choraria v. Union of
India and others {(1980) 4 SCC 531}, M. Ahamedkutty v. Union of
India and another {(1990) 2 SCC 1) and other decisions, learned Senior
Counsel for the petitioners contended that since it is a legal question, that
can be considered by this court. The argument developed is like this. Even
though the detaining authority has clearly mentioned about the existence of
orders granting bail, they have not been communicated to the detenus. This
amounts to gross violation of Section 7(2) of the Act, and merely because
the detenus could subsequently procure it, that cannot save the situation as
strict adherence to the provisions is required. Again, when confronted with
the findings rendered by the respective courts in Exts.P4 to P9 regarding
absence of any positive material to connect the accused for granting bail, it
was submitted by the learned Addl. Director General of Prosecutions that
materials like confession statement of the driver who was arrested and that
of the petitioners themselves were there which have been considered by the
authorities. These have not been made available to the detenus. It was
submitted by the learned Addl. Director General of Prosecutions that those
materials were in the files which were duly considered by the authorities
WP.(Crl.)Nos.265,
266 & 267/2008 -21-concerned before the order of detention was passed.
16. A reference to the averments contained in the counter affidavit
filed by the second respondent, the detaining authority, in Writ Petition
No.265/2008 is profitable while considering the above arguments. In para
8 of the counter affidavit, it is stated as follows:
“On examination and evaluation of said report along with the
connected First Information Report and supporting materials and
being satisfied with the fact that Shri Jojo George is a bootlegger as
defined in Section 2(C) of the Kerala Anti-social Activities
(Prevention) Act, 2007 and also a “Known Goonda” as defined in
Section 2(o) thereof and that his activities have become potential
threat to maintenance of peace and public order in the society,
Ext.P1 order of detention was issued by the 2nd respondent.”
In regard to the aspect governing the service of copy of the order of
detention, the crucial averment in para 7 of the counter affidavit is the
following:
“At the time of arrest the detenu was served with copies of order of
detention, grounds of detention (English and Malayalam), copies of
First Information Reports, etc. and acknowledgment obtained.”
WP.(Crl.)Nos.265,
266 & 267/2008 -22-Similar averments have been made in the counter affidavits filed in other
two writ petitions.
17. The connected files produced by the Additional Director General
of Prosecutions have been perused by us. In fact, it was pointed out by the
respondents with reference to the files that the acknowledgment of the
detenus have been obtained in the copies furnished and there is no lacuna
on this point. In all the three writ petitions, the files start with the
letter/report number 32170/Camp/2007P dated 24.6.2008 from the
Superintendent of Police, Palakkad to the District Magistrate, Palakkad.
Therein, the brief history of the three cases, viz. Crime Nos.26.2008,
181/2006 and 263/2006 have been stated and it is recommended that the
detenu/accused be detained under Section 3 of the Act, so that he is not able
to commit any other smuggling, conspiracy and illegal transportation of
spirit cases. The enclosure shows five items of documents which includes
the grounds of detention, brief of cases, brief of FIRs, and the copies of
FIRs in three cases. On verifying with the documents, it is found that
acknowledgments have been obtained behind the order of detention, the
grounds of detention in English and Malayalam, memo for executing the
order of detention, copies of F.I.Rs. in the three cases, a letter dated
24.1.2008 issued by Malabar Cements Limited to the Sub Inspector of
WP.(Crl.)Nos.265,
266 & 267/2008 -23-Police, Valayar, copy of the statement submitted by the police officer
concerned before the Judicial First Class Magistrate’s Court-I, Palakkad
seeking to include the names of the accused in the array of accused, copy of
crime and occurrence report of the Excise Department and seizure
mahazars. The files do not show that the copies of Exts.P4 to P9 have been
served on the detenus and the copies of confession statements of the driver
and the detenus themselves have been served on them. The situation is
identical in all the three cases. Thus, the question is whether the submission
made by the respondents that copies of all the material documents have
been supplied to the detenus is correct or not. Going by the endorsement
contained in the letter dated 24.6.2008 of the Superintendent of Police,
Palakkad, what was forwarded are only the copies of F.I.Rs., brief of
F.I.Rs., brief of cases and grounds of detention and nothing else. If that is
accepted on the face value, it would have to be concluded that the other
documents like copies of the bail orders and copies of the confession
statements of the driver and the accused were not forwarded along with
them. But in the light of the fact that reference is made to the release on
bail of the detenus under various orders, in the grounds of detention,
straight away it cannot be concluded that this was made without seeing
those orders. If the earlier position is accepted, then the orders will be
WP.(Crl.)Nos.265,
266 & 267/2008 -24-vitiated by non-application of mind to the relevant materials and non-supply
of relevant documents to the detaining authority. To meet the argument of
the learned counsel for the petitioners that respondents are bound by the
findings rendered in Exts.P6 to P9 to the effect that there are no reliable
materials to implicate the detenu, it was vehemently argued on behalf of the
respondents that the confession by the driver and the detenus will clearly
implicate them. Thus, obviously the detaining authority would have
confronted the findings contained in these orders with the confession
statements relied upon by the respondents. These were very material
documents and were essential for arriving at the subjective satisfaction by
the detaining authority. Therefore, the question is whether the non-supply
of those documents to the detenus is fatal.
18. Going by the decision of the Apex Court in Usha Agarwal v.
Union of India and others {(2007) 1 SCC 295} “the procedural
safeguards under the Constitution have been interpreted, to require every
material which is relevant, having a bearing on the question as to whether a
person should be detained under the Act, be placed before the detaining
authority, as the detention to detain a person is rendered by a detaining
authority on his subjective satisfaction as to the existence of the grounds for
such detention. The sponsoring authority should not undertake any exercise
WP.(Crl.)Nos.265,
266 & 267/2008 -25-of examination and interpretation of the available material with a view to
place the documents selectively before the detaining authority. It is not for
the sponsoring authority to decide as to which of the relevant documents
should be placed before the detaining authority, or which of the documents
are likely to help or not help the prospective detenu. Consequently, the
sponsoring authority cannot exclude any particular document from the
material to be placed before the detaining authority. If the relevant facts or
documents which may influence the subjective satisfaction of the detaining
auhtority on the question whether or not to make the detention order, are not
placed before the detaining authority, or are not considered by the detaining
authority, it may vitiate the detention order itself. It is no answer to say that
the view of the other documents that were placed before the detaining
authority or that the detaining authority would have come to the same
conclusion even if it had considered the said document.” In para 13 of the
said judgment, their Lordships further held as follows:
” A document is relevant for considering the case of a person for
preventive detention if it relates to or has a bearing on either of the
following two issues: (a) whether the detenu had indulged in
smuggling or other activities prejudicial to the State, which the
COFEPOSA Act is designed to prevent; and (b) whether the nature
of the illegal and prejudicial activity and the manner in which the
detenu had indulged in such activity, gave a reasonable indication
WP.(Crl.)Nos.265,
266 & 267/2008 -26-that he would continue to indulge in such activity. In other words,
whether he had the propensity and potentiality to continue the
prejudicial activity necessitating an order of detention.”
Herein, the detention is ordered to prevent the detenu from indulging in
further smuggling of illicit spirit. It will be therefore clear that the
documents like confession statement of the accused and the driver and the
orders on the bail applications were relevant documents to be produced
before the detaining authority.
19. It is well settled by various decisions of the Apex Court that
communication of materials is essential for the detenu to make an effective
representation against his detention. In Smt. Icchu Devi Choraria’s case
(supra) {(1980) 4 SCC 531), it was held in paragraphs 6, 7 and 8 in the
following terms:
“The right to be supplied copies of the documents,
statements and other materials relied upon in the grounds
of detention without any undue delay flows directly as a
necessary corollary from the right conferred on the
detenu to be afforded the earliest opportunity of making
a representation against the detention, because unless the
former right is available, the latter cannot be
meaningfully exercised. On a proper construction of
Article 22(5) read with Section 3(3) of the COFEPOSA
Act, it is necessary for the valid continuance of detention
WP.(Crl.)Nos.265,
266 & 267/2008 -27-that subject to Article 22(6) copies of the documents,
statements and other materials relied upon in the
grounds of detention should be furnished to the detenu
along with the grounds of detention or in any event not
later than five days and in exceptional circumstances and
for reasons to be recorded in writing, not later than
fifteen days from the date of detention. There are no
exceptions or qualifications provided to this rule which
operates in all its rigour and strictness and if this
requirement of Article 22(5) read with Section 3(3) is
not satisfied, the continued detention of the detenu
would be illegal and void. However, even if the above
interpretation of the words “grounds on which the order
has been made” in Article 22(5) and Section 3(3),
COFEPOSA be wrong, the copies of documents,
statements and other materials relied upon in the grounds
of detention must be supplied to the detenu without any
unreasonable delay.”
It has also been held that “in case of an application for writ of habeas
corpus, the practice evolved by the Supreme Court is not to follow strict
rules of pleading nor place undue emphasis on the question as to on whom
the burden of proof lies.” In M. Ahamedkutty’s case (supra), while
considering a similar question, it was held that “the detenu has the right to
be furnished with the grounds of detention along with the documents relied
WP.(Crl.)Nos.265,
266 & 267/2008 -28-on. If there is failure or even delay in furnishing those documents it would
amount to denial of the right to make an effective representation guaranteed
under Article 22(5).” It was further held in para 20 as follows:
“It is immaterial whether the detenu already knew about their
contents or not. In Mehrunissa v. State of Maharashtra it was
held that the fact that the detenu was aware of the contents of the
documents not furnished was immaterial and non-furnishing of the
copy of the seizure list was held to be fatal. To appreciate this point
one has to bear in mind that the detenu is in jail and has no access to
his own documents. In Mohd. Zakir v. Delhi Administration it
was reiterated that it being a constitutional imperative for the
detaining authority to give the documents relied on and referred to in
the order of detention pari passu the grounds of detention, those
should be furnished at the earliest so that the detenu could make an
effective representation immediately instead of waiting for the
documents to be supplied with. The question of demanding the
documents was wholly irrelevant and the infirmity in that regard was
violative of constitutional safeguards enshrined in Article 22(5).”
Therefore, the argument raised by the learned Additional Director General
of Prosecutions that since the copies of orders Exts.P4 to P9 have been
produced by the detenus along with their representation, the non-furnishing
of the said copies will not be fatal, is not correct. Their Lordships have held
that “it is immaterial whether the detenu already knew about their contents
or not.” There was no obligation on the part of the detenu to demand the
WP.(Crl.)Nos.265,
266 & 267/2008 -29-documents and if they were not supplied, that will violate the constitutional
safeguards enshrined in Article 22(5) read with Section 7(2) of the Act.
The reliance placed by the learned Addl. Director General of Prosecutions
to the decision in Usha Agarwal’s case (supra) to contend that the detenu
had forwarded the copies of documents and therefore there will not be any
violation of the provisions, is not correct. Therein, the detenu alleged that
legible copies of documents were not supplied to him. But it turned out that
these were documents which had been forwarded by the detenu himself
earlier to the department which were illegible. The copies of those
documents have actually been furnished by the detaining authority to the
detenu which contained such illegible portions. It is on that ground the
Apex Court found that there is no merit in the contention that proper copies
were not furnished. Herein, the position is different. Copies of the orders
on the bail applications have not been furnished to the detenus. Copies of
the confession statements have also not been furnished. Only copy of a
statement submitted by the investigating officer to the criminal court for
adding their names as accused alone was furnished without annexing the
copies of the confession statements. We have referred to the averments of
the second respondent in the counter affidavit on this crucial aspect wherein
it is stated that “the order of detention was passed on examination and
WP.(Crl.)Nos.265,
266 & 267/2008 -30-evaluation of the report along with the connected FIR and supporting
materials.” As we have pointed out earlier, if the supporting materials are
not furnished and only the copies of FIRs, brief of cases, brief of FIRs. and
grounds of detention as seen from the enclosures mentioned in the report of
the Superintendent of Police alone are furnished, that will vitiate the order
of detention, as he had failed to forward the relevant materials to the
detaining authority. That is not the case here as now pleaded. There is
nothing in the files to show that the copies of the bail orders or the copies of
confession statements have been communicated to the detenus. The
position is reiterated by the Apex Court in Adishwar Jain v. Union of
India and another {(2006) 11 SCC 339} wherein it was held in para 29
that “if the documents were material so as to enable the detenu to make an
effective representation which is his constitutional as also statutory right,
non-supply thereof would vitiate the order of detention. What is necessary
to be supplied is the relevant and the material documents, but, thus, all
relevant documents must be supplied so as to enable the detenu to make an
effective representation which is his fundamental right under Article 22(5)
of the Constitution. Right to make an effective representation is also a
statutory right.” This dictum squarely applies to the facts of this case.
WP.(Crl.)Nos.265,
266 & 267/2008 -31-20. It is therefore to be examined whether there is any violation of
Section 7(2) of the Act. Going by Section 7(2) of the Act, it is clear that
the authorities are bound to furnish 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”
and giving such materials relating to his activities on the basis of which his
detention has been found necessary. Even though it was argued by the
learned Addl. Director General of Prosecutions by relying upon Section 3
(1) of the Act that the report or information conveyed by the Superintendent
of Police is the sole basis for the action under Section 3(1) of the Act, we
are afraid that the said argument may not be correct in the light of Section 7
(2) of the Act. The detenu is entitled to know the basis on which he is
considered as a “known goonda” and he shall also be furnished such
materials relating to his activities on the basis of which his detention has
been found necessary. Therefore, the report of the Superintendent of Police
alone is not the basis of the action, but apart from the report, materials
forwarded to the detaining authority are crucial for arriving at the subjective
satisfaction by that authority. He cannot withhold any material from the
detaining authority also. The provisions under Section 7(2) are plain and
clear and no other interpretation is possible. It may also be of mentioned
WP.(Crl.)Nos.265,
266 & 267/2008 -32-here of the argument raised by the learned Senior counsel appearing for the
petitioners that there are clear findings rendered by the various courts in
Exts.P4 to P9 orders , on the absence of materials to connect the accused.
Therefore, the respondents were compelled to disclose the crucial materials
in this proceedings, by way of confession statement of the accused and the
driver. Copies of the same are kept in one of the files produced before us.
Since they have been the basis for their arrest, their importance cannot be
lost sight of. Non-supply of the said material and the copies of bail orders
to the detenu is therefore a clear violation of Section 7(2) of the Act read
with Section 22(5) of the Constitution of India. Since the principles of
natural justice are violated, the consequent action will have to fail. We are
fortified in our view by the recent decision of the Apex Court in Union of
India v. Ranu Bhandari (2008 (12) SCALE 452).
21. It is submitted by the learned Addl. Director General of
Prosecutions that Criminal Miscellaneous Cases have been filed challenging
the orders granting bail. That is a matter to be considered in the said
proceedings. We are not finally pronouncing upon the same.
22. The learned Addl. Director General of Prosecutions, relying upon
the decision of this court in Aysha Nazreem v. Government of Kerala &
others (2002 (2) KLJ 464) submitted that even if this court finds that there
WP.(Crl.)Nos.265,
266 & 267/2008 -33-are any procedural infirmities, the detaining authority can pass fresh orders
after clearing the procedural defects. While considering a similar
argument, it was held by this court in the above said decision that in
appropriate cases where there are procedural infirmities, the detaining
authority can pass fresh orders after clearing the procedural defects. Their
Lordships have relied upon the decision of the Apex Court in Naranjan
Singh Nathawan v. State of Punjab (AIR 1952 SC 106) while arriving at
the said conclusion. Herein, we notice that Section 13(2) of the Act allows
the authorities concerned to pass fresh orders of detention. The said
provision is extracted below:
“13(2) The revocation or expiry of a detention order
shall not be a bar for the issuance of another detention
order under Section 3 against the same person, if he
continues to be a person falling within the definition of
known rowdy or known goonda as given in Section 2(o)
or Section 2(p) and if,–(i)after release, he is, found to have, again
involved in an offence of the nature described in
Section 2(o) or Section 2(p) at least in one
instance; or(ii)the facts, which came to the notice of the
Government or the authorised officer after the
issuance of the earlier detention order,
considered along with previously known facts
are sufficient to cause a reasonable
apprehension that he is likely to indulge in or
promote or abet anti-social activities; orWP.(Crl.)Nos.265,
266 & 267/2008 -34-(iii) the procedural errors or omissions, by
reason of which the first order was revoked, are
rectified in the procedure followed with regard
to the subsequent order, even if the subsequent
order is based on the very same facts as the first
order.”
23. In the light of the above provision and in the light of the
principles stated in Naranjan Singh Nathawan’s case (supra), the
detaining authority will be within its powers to act accordingly, even if we
find that Ext.P1 order does not survive.
Therefore, the writ petitions are allowed. Ext.P1 in all the three writ
petitions are quashed. The detenus will be released forthwith, if they are
not wanted in any other case.
( P.R.Raman, Judge.)
(T.R. Ramachandran Nair, Judge.)
kav/
WP.(Crl.)Nos.265,
266 & 267/2008 -35-