High Court Kerala High Court

Shoba Babu vs State Of Kerala on 27 January, 2009

Kerala High Court
Shoba Babu vs State Of Kerala on 27 January, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(Crl.).No. 425 of 2008(S)


1. SHOBA BABU, AGED 49 YEARS,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY THE
                       ...       Respondent

2. THE DISTRICT COLLECTOR, ERNAKULAM.

3. THE DEPUTY POLICE COMMISSIONER, KOCHI.

4. THE CIRCLE INSPECTOR OF POLICE,

5. SRI.V.K.SUNIL JACOB, CURRENTLY THE

                For Petitioner  :SRI.K.RAMAKUMAR (SR.)

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :27/01/2009

 O R D E R

A. K. Basheer & Thomas P. Joseph, JJ.

– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –

W.P (Cr.) No. 425 of 2008

– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –

Dated this the 27th day of January, 2009.

Judgment
Basheer, J:

The short question that arises for consideration in this writ petition is

whether Ext.P1 order of detention issued by the District Collector,

Ernakulam under section 3(2) of the Kerala Anti Social Activities

(Prevention) Act, 2007 (the Act, for short) is legally sustainable and valid.

2. Petitioner is the mother of the detenu, Sri.Lenin who is a resident

of Perumpadappu within the limits of Palluruthy Police Station. Petitioner

contends that her son was taken into custody at about 6.45 p.m. on

November 14, 2008 by a Police Constable named Rajesh and two other

police men who can be identified. Sri. Lenin was taken in a blue Maruti

van initially to Palluruthy Police Station and later he was transferred to

Thoppumpady Police Station on the same night. Shortly after the arrest of

Sri. Lenin, petitioner submitted Ext.P2 complaint addressed to the Director

General of Police, Thiruvannathapuram with notice to the Minister for

Home and City Police Commissioner, Ernakulam On the next day morning

viz., November 15, 2008 petitioner preferred a petition under Section 97 of

the Code of Criminal Procedure before the District Magistrate, Ernakulam

(District Collector) praying for a direction to the Station House Officer,

WP(Cr).425/08 2

Palluruthy to search and produce Sri. Lenin before the court and set him at

liberty. Ext.P3 is stated to be the true copy of the said petition filed under

section 97 of the Code.

3. The specific case of the petitioner is that Ext.P1 order of detention

under section 3(2) of the Act was issued by the District Collector, the

Authorised Officer, some time late in the evening on November 15, 2008

and purportedly served on the detenu on that day. The detenu was also

served with the grounds for his detention, a copy of which is on record as

Ext.P4.

4. It is contended by the petitioner that the arrest and detention of her

son Sri. Lenin is ex facie illegal, vitiated and in violation of the rights

guaranteed under Articles 14, 19, 21 and 22 the Constitution of India.

Ext.P1 order was cooked up by the respondent in order to cover up the

illegal arrest and detention.

5. It is further contended that Ext.P1 order has been issued without

any application of mind, since the Deputy Police Commissioner is seen to

have submitted his report recommending detention of Sri. Lenin only on

November 15, 2008 and on the same day itself the Authorised Officer is

alleged to have issued Ext.P1 order. This will clearly show that there was no

WP(Cr).425/08 3

application of mind.

6. The other contention raised by the petitioner is that the detenu will

not come within the definition of “known rowdy” as defined under section

2(p) of the Act.

7. Separate counter affidavits have been filed by respondents 1, 2

and 5. A statement on behalf or respondent No.4 has also been filed by one

of his colleagues, Circle Inspector of Police, Mattancherry. These

respondents, while denying the allegations in the writ petition have

asserted that the order of detention was issued keeping in view the

antecedents of the detenu and his criminal track record.

8. Respondent No.2, the Authorised Officer, has also specifically

denied the allegation that the order of detention was passed without any

application of mind. It is further contended that detention has been ordered

based on valid grounds. According to respondent No.2, all the crimes

committed by the detenu along with his associates are acts of a hardened

criminal causing harm to the life and property of the public. The Police

report revealed that there was every possibility of his gang attacking a rival

gang. It is further asserted that the detenu is a “known rowdy” as defined in

Section 2(e)(iii) of the Act. The Authorised Officer has also stated that

WP(Cr).425/08 4

Ext.P1 order was passed after making a detailed and independent analysis of

the materials available on record by the Deputy Commissioner of Police.

The Authorised Officer has also denied the allegation that Ext.P1 order

was passed after filing of Ext.P3 application by the petitioner for issue of a

search warrant under Section 97 of the Code while the detenu was in illegal

detention and in order to avoid any legal action against erring Police

officers.

9. Respondent No.1 has stated in his counter affidavit that the

Government had approved the order of detention after a careful evaluation

of the entire documents received from the Authorised Officer. It is further

stated that the matter has been referred to the Advisory Committee for its

opinion as provided under section 9 of the Act.

10. In his counter affidavit, respondent No.5 who has been impleaded

in the writ petition in his personal capacity, has denied all the personal

allegations made against him. According to this respondent, the detenu

and his brother are rowdies operating in Perumpadappu area. While

referring to the various crimes registered against the detenu , it is contended

by this respondent that the detention of Sri.Lenin is absolutely necessary

for the safety of the public.

WP(Cr).425/08 5

11. As mentioned earlier, Ext.P1 order of detention has been

impugned by the petitioner on various grounds referred to above. The

primary contention urged by Sri.K.Ramkumar, learned senior counsel is that

Ext.P1 order was issued by the Authorised Officer in order to cover up the

illegal detention of Sri.Lenin since 6.45 p.m. on November 14, 2008. As

has been noticed already, the specific case of the petitioner is that Sri.Lenin

was taken into custody by Police Constable Rajesh and two other

identifiable constables. Sri.Lenin was taken in a blue Maruti van to

Palluruthy Police station. Thereafter he was shifted to Thoppumpady Police

station immediately, when petitioner had engaged a lawyer to help her to

find out the whereabouts of her son. It is further contended by the petitioner

that she had preferred Ext.P2 complaint before the Director General of

Police in the evening on the same day itself. On the next day morning she

filed a petition under section 97 of the Code. Thus it is the specific case of

the petitioner that her son was taken into custody by the Police at about 6.

45 p.m. on November, 2008 and Ext.P1 order of detention was allegedly

issued by the Authorised Officer only on the next day, and that too late in

the evening.

12. It is significant to note that none of the respondents in their

WP(Cr).425/08 6

respective counter affidavits has adverted to the above specific allegation.

It is true that respondent No.5 in his counter affidavit has stated that

Sri.Lenin was arrested by respondent No.4 at 6.30 p.m. on November 15,

2008 in connection with the crime registered under section 3 of the Act.

This respondent has further denied the allegation that the detenu was

illegally taken into custody on the previous day. There is no reference to the

blue Maruti van. Similarly nothing is stated as to whether a constable by

name Rajesh was on duty on that day in the Police station concerned . In

our view, this aspect assumes importance for various reasons.

13. There is yet another aspect of the matter. Respondent No.4, the

Circle Inspector of Police, Palluruthy Police station has not chosen to file a

counter affidavit in the case. However very belatedly on January 7, 2009

when hearing of the case had actually commenced, a “statement” was filed

on behalf of respondent No.4 by the Circle Inspector of Police,

Mattancherry stating that Sri.Lenin “was arrested by the Police only on

15/11/2008 and not on 14/11/2008.” The Officer who filed the statement

has mentioned that he is holding additional charge of respondent No.4

“now”. Admittedly, the then officer in charge is still in service. There is

no case for anybody that the then Circle Inspector, Palluruthy who was in

WP(Cr).425/08 7

charge of Palluruthy Police station had been transferred to any other

station. Nothing prevented the said officer in placing an affidavit on record.

More significantly, the Officer in charge of the Police station was bound to

explain as to whether Police Constable Rajesh was on duty on the crucial

date or not. In our view, the silence maintained by the respondents on this

crucial aspect looms large in the case.

14. The Additional Director General of Prosecution had made

available the relevant files both from the office of respondent No.1 and

respondent No.2 . In the file maintained by the office of respondent No.2, it

is seen that the relevant entry relating to this case appears at page No.81.

In the said entry reference is made to the report dated 15/11/2008 received

from the Deputy Commissioner of Police, Kochi City. The note put up by

the office before the Authorised Officer reads thus:

“Submitted
Ref: Report dt. 15.11.08 of the Dy.Commr. of
Police, Kochi city.

Please see the ref. cited. As per the ref., it
has been requested to issue detention orders
against Sri.Lenin, S/o.Appi Banu.

If agreed, draft detention order put up for
approval.

Sd/-

             Dss.        Sd/- JS(M)         Sd/-ADM        Sd/-DM.
                         15/11/08            15/11/08      16/11/08"

It is seen that the Authorised Officer, the District Magistrate, had put the

WP(Cr).425/08 8

signature only on November 16, 2008.

15. Significantly in Ext.P1 the Authorised Officer has not put any

date below the signature. On the left hand side, the figure 15 alone is put in

ink. It is true that the detenu has put his thumb impression and signature in

Ext.P1 order endorsing that the order has been read out and translated to

him in Malayalam and that he had received the copy. Below this

endorsement he has put the date as November 15, 2008. But it has to be

remembered that the detenue was under detention on that day.

16. More importantly, the specific case of the petitioner is that the

detenue had been illegally taken into custody on the previous day itself.

Therefore the date allegedly written by the detenu as 15/11/2008, under the

endorsement referred to above may not have much significance.

17. In this context it may also be noticed that petitioner had filed

Ext.P3 application under Section 97 of the Code on November 15, 2008.

Respondent No.2 has no case that Ext.P3 application was not received in the

office on that day. Further, the photocopy of the application produced from

the office of respondent No.2 also shows that some officer in that office had

put his initial and date on the instant day itself, though time of receipt of the

application is not indicated. It goes without saying that office of respondent

WP(Cr).425/08 9

No.2 would not have entertained such an application if it had been filed

after the office hours. We do not find any reason to assume that the

petitioner would have filed Ext.P3 application under Section 97 of the Code

anticipating her son’s arrest at about 6.30 p.m. on that day.

18. According to respondents 4 and 5, the detenu was admittedly

taken into custody only at 6.30 p.m. on November 15, 2008. This can be

seen from Annexure A arrest memo also, produced along with the

statement filed on behalf of respondent No.4 at the fag end of the hearing.

In the file produced by respondent No.2, there is an entry with regard to

Ext.P3 application at page 81. Significantly the order passed by respondent

No.2 on that petition reads only thus:

               "Inform that person       has been detained

               under KAPPA"

The said order is seen to have been passed by respondent No.2 on

November 22, 2008. If in fact petitioner had filed Ext.P3 application even

before the arrest of her son, the said application ought to have been rejected

on the ground that it was premature. We have referred to this aspect only to

indicate that the stand taken by respondents 2 to 5 that the detenu was taken

into custody at 6.30 p.m. on November 15, 2008 cannot be believed.

WP(Cr).425/08 10

Keeping in view the material aspects referred to above, we are prima

facie satisfied that the contention raised by the petitioner as regards the

detention of her son even before issuing Ext.P1 order of detention is wholly

valid and tenable.

19. A question may arise as to whether Ext.P1 order can be declared

as illegal and invalid, assuming the detenu had been taken into custody even

before the said order had been issued. It may be argued that the detention

of the petitioner’s son under the Act had come into effect from the moment

the order had been executed. But respondents do not have a case that the

detenu was taken into custody and detained in connection with any other

case. Therefore since we have already found that the detenu had been

taken into custody in the evening of November 14, 2008 itself, it

necessarily follows that such detention, if proved to be true, cannot relate

to Ext.P1 order which was passed subsequently on the next day. Therefore

any legal validity or sanctity cannot be attached to Ext.P1 order, since in

the eye of law, an order of detention cannot be issued against a person who

has already been detained. An illegal detention cannot be legalised by

issuing a subsequent order. Personal liberty of a citizen as enshrined in

Article 21 of the Constitution is a very precious and valuable right which

WP(Cr).425/08 11

cannot be trampled upon through an arbitrary and high handed action. We

do not propose to deal with the above aspect any further for obvious

reasons.

20. We do not deem it necessary to consider the other contentions

raised by the petitioner with regard to the validity of the impugned order.

We leave those issues open, in view of the answer given by us on the

primary issue in the preceding paragraphs of this judgment.

For the foregoing reasons, we quash Ext.P1 order. Sri.Lenin, the

detenu shall be released from custody forthwith, if his detention is not

required in connection with any other case pending against him.

It is made clear that this order will not preclude the right of the

authorities concerned to issue appropriate fresh orders in exercise of the

powers under the Act, if situation so warrants.

The writ petition is allowed in the above terms.





                                                   A.K. BASHEER
                                                         Judge


                                                  Thomas P. Joseph
an.                                                      Judge.