IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 20 of 2009(S)
1. A.MANGAYARKARASI, AGED 48 YEARS,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY THE
... Respondent
2. THE DISTRICT MAGISTRATE AND DISTRICT
3. THE SUPERINTENDENT OF CENTRAL PRISON,
4. THE DISTRICT SUPERINTENDENT OF POLICE,
For Petitioner :SRI.M.G.KARTHIKEYAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.BHAVADASAN
Dated :20/03/2009
O R D E R
A.K. BASHEER & P. BHAVADASAN, JJ.
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W.P. (Crl.) No. 20 of 2009
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Dated this the 20th day of March, 2009.
JUDGMENT
BASHEER, J.
Petitioner is the mother of Sri.Elavarashu, son of Sri.Anparasu
hailing from Karur in the State of Tamil Nadu. She impugns Ext.P1 order
dated November 10, 2008 issued by the District Magistrate and District
Collector, Palakkad under Section 3(2) of the Kerala Anti-Social Activities
(Prevention) Act, 2007.
2. By the impugned order the detaining authority held that
Sri.Elavarashu, the detenu, qualifies to be declared a “Known Goonda”
and therefore he has to be placed under detention in order to restore
“feeling of security among general public and confidence of law among
the people living in the affected area,” so that he is not able to cause loss
to the State of Kerala and pose a threat to the safety and security of the
State as well as the people.
3. Ext.P1 order of detention refers to the materials and grounds
based on which the detenu was ordered to be detained. They may be
briefly noticed.
4. On January 24, 2008, at 14.45 hrs., a truck bearing registration
No.KL 11Q 1903 carrying 8540 litres of spirit was intercepted by Excise
officers at Walayar check post. It was revealed that illicit spirit was
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being transported into Kerala using Green Channel of Malabar Cements
Limited. The vehicle and the contraband were seized. Excise authorities
registered Crime No.3/2008 under Section 55(a) of the Abkari Act in this
connection. Simultaneously, Walayar Police registered Crime
No.26/2008 for the offences punishable under Sections 407, 420, 120B
read with Section 34 of the Indian Penal Code on the basis of the
complaint filed by the Assistant Sales Manager, Malabar Cements
Limited, Palakkad.
5. The investigation of Crime No.26/2008 was handed over to
Inter State Illicit Spirit Movement Team (ISISMIT). Later Crime
No.3/2008 registered by the Excise Department under Section 55(a) of
the Abkari Act was also transferred to ISISMIT and a Special
Investigation Team was constituted for this purpose under the direct
supervision of the Superintendent of Police, Palakkad.
6. In the course of the investigation by the Special Team, under
the control of ISISMIT, the driver of the vehicle bearing registration
No.KL 11Q 1903 confessed that he was given brass token and spirit
filled lorry by Sampath and Joy. Later, one Mahesh, who was alleged to
be one of the gang members of the Spirit Mafia, was arrested on March
22, 2008. Mahesh had allegedly taken the investigating officer to the
spirit godown at Karur in Tamil Nadu. Huge quantity of spirit, a few
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vehicles etc., were seized in the joint raid conducted by the Kerala and
Tamil Nadu police teams. According to the investigating team, the
godown was owned by the detenu, Sri.Elavarashu. In the confession
statement given by Sri.Mahesh he had specifically implicated the detenu.
Similarly, Sri.Sampath referred to above was also arrested on April 3,
2008. He confessed that he along with the detenu and a few named
others had smuggled spirit into Kerala. According to the investigating
team, the detenu was one of the main members of the spirit mafia, which
procures spirit from distilleries in Karnataka and smuggles into Kerala.
7. The other specific instance of the alleged involvement of the
detenu in illegal transportation of spirit into Kerala is in relation to the
interception of a lorry bearing registration No.KL 10 L 6047 on
September 19, 2007. At about 4.55 p.m. on that day, Sri. Saji, the
Assistant Motor Vehicle Inspector had intercepted the above vehicle.
The driver and cleaner of the vehicle abandoned it and fled. 255 cans of
spirit (35 litres each) (255 x 35 = 8925 litres) concealed under 40 bags
of cement were recovered. The Motor Vehicle Inspector handed over the
lorry and the spirit to the Kayamkulam police after effecting seizure in
the presence of witnesses. Kayamkulam police registered Crime
No.663/2007 in this connection. Later, on May 23, 2008 this crime was
also transferred to ISISMIT as ordered by the Director General of Police,
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Kerala. This crime is also being investigated under the supervision of
the Special Investigation Team. According to the investigating agency,
Sri.Sampath referred to above had, in his confession statement, stated
that he along with the detenu and a few named other accomplices had
smuggled spirit into Kerala for Mujeeb Rehman, Jojo, Edison etc.
8. It is not in dispute that the detenu was arrested in connection
with Crime No.26/2008 of Walayar Police Station on August 9, 2008. He
was arrested in connection with Crime No.663/2007 of Walayar Police
Station on September 6, 2008. It is also beyond controversy that the
detenu was granted bail by the jurisdictional Magistrate in Crime
No.26/2008 on October 13, 2008, and in the Kayamkulam crime (Crime
No.663/2007) he was granted bail on November 7, 2008. But since the
detenu did not execute bail bonds in the two crimes as directed by the
court, he was not released. Ext.P1 order of detention was passed on
November 10, 2008 while the detenu was in judicial custody. His arrest
was recorded pursuant to Ext.P1 order on November 12, 2008.
9. It is not in dispute that the alleged involvement of the detenu in
the two crimes is the basis on which Ext.P1 order of preventive detention
has been issued against him. It is on record that the Government had
approved the order of detention. Thereafter, the Advisory Board has
also given its opinion that the detenu is liable to be detained under the
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Act as ordered by the detaining authority. Consequently, the
Government has issued Ext.P7 order of confirmation on January 9, 2009.
10. It is primarily contended by the learned Senior Counsel
appearing for the petitioner that the detenu would not fall within the
ambit of Section 2(c) of the Act which defines “Bootlegger”. It is further
contended by him that the detenu cannot be branded as a “goonda” or
known “goonda” as defined under Sections 2(j) and (o) respectively of
the Act. Heavy emphasis is laid by learned Senior Counsel on sub clause
(ii) of Section 2(o) of the Act.
11. In this context, learned senior counsel points out that the
specific allegation against the detenu in relation to seizure of the
contraband is that it was part of the stock of spirit stored at the godown
of the detenu within the limits of K.Paramathi Police Station in Tamil
Nadu. It is the admitted position that K.Paramathi Police had registered
Crime No.116 of 2008 in connection with the alleged seizure of spirit
from the godown in question. The detenu was implicated in the above
crime by K.Paramathi Police as one of the accused. It is on record that
the Madurai Bench of the Madras High Court had granted anticipatory
bail to the detenu in the above crime on certain conditions. A copy of
the order passed by the Madras High Court is available on record as
Ext.P8.
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12. The specific case of the petitioner is that the detenu was taken
into custody by Walayar Police when he had gone to K.Paramathi Police
station in obedience to the direction issued by the High Court that he
should appear before the police every day until further orders. Anyhow,
it is revealed from Ext.P8 order of the High Court that the case of the
detenu was that he had let out the godown in question to one Selvaraj on
monthly rent for the purpose of using the same as chemical stock yard.
It was also noticed by the High Court that one Kulanthai Swami has been
found in charge of the godown.
13. It is further pointed out by learned Senior Counsel that the
Madurai Bench of the Madras High Court had in fact granted stay of
further proceedings in Crime No.116/2008 registered by K.Paramathi
Police in Crl.R.C.(MD)No.467/2008 as could be seen from Ext.P9. In this
order, the High Court had noticed that the Judicial Magistrate of First
Class-II, Karur had passed an order directing that the case in Crime
No.116/2008 of K.Paramathi police station be transferred to Walayar
police to be investigated along with Crime No.26/2008 of the latter
police station. It was the said order of the learned Magistrate which was
stayed by the Madurai Bench of the Madras High Court. Thus, it is
evident from Ext.P9 order that the Madras High Court is in seizin of the
crime registered by K.Paramathi Police in connection with seizure of
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spirit from the godown of which the detenu is alleged to be the landlord.
14. Anyhow, we do not propose to deal with that aspect of the
matter any further at this stage since in our view, on yet another ground,
the question involved in this case can be decided. It is contended by
learned Senior Counsel that the sponsoring authority had not placed
Exts.P8 and P9 orders of the Madras High Court before the detaining
authority and obviously therefore, the detaining authority was not aware
of those two orders. This, according to the learned counsel, has totally
vitiated the order of detention. A perusal of Ext.P9 order will
undoubtedly show that there is close nexus of crime No.116/2008 of
K.Paramathi Police station in Tamil Nadu to Crime No.26/2008 of
Walayar Police station in the State of Kerala. This position is not
disputed by the respondents. Admittedly the detenu was granted
anticipatory bail by the Madurai Bench of the Madras High Court in that
crime. All further proceedings in Crime No.116/2008 of K.Paramathi
Police station had been stayed by the Madras High Court. In ext.P9
order, the High Court had noticed that the Director General of Police,
Chennai had ordered transfer of the case and relevant properties in
Crime No.116/2008 of K.Pramathi Police to Walayar Police. This clearly
indicates that the Tamil Nadu police has also been conducting
investigation in a related crime in which the detenu was allegedly
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involved. However, he was granted anticipatory bail by the Madras High
Court in the above crime which according to the Kerala Police is
admittedly connected with the crime registered by them. Therefore, in
our view, the sponsoring authority ought to have brought these aspects
of the matter to the notice of the detaining authority. Admittedly none of
the documents relating to the crime registered by K.Paramathi Police
station or the copies of bail application, Memorandum of Crl.R.C.(MD)
No.467/2008 filed by the detenu for stay of proceedings etc. had been
made available to the detenu by the detaining authority. The
respondents could not have pleaded ignorance of these proceedings
pending before the Madras High Court since the detenu in fact divulged
all these informations in his bail application filed before this Court in
B.A.No.6270/2008 while seeking for bail in Crime No.663/2007 of
Kayamkulam Police station.
15. In that view of the matter, we have no hesitation to hold that
failure of the detaining authority to furnish copies of the above material
documents to the detenu will vitiate the order of detention. On that
short ground, we are inclined to allow the prayer made by the petitioner
for quashing Ext.P1 order. Accordingly, Ext.P1 order is quashed.
16. Having regard to the entire facts and circumstances and for
the reasons stated above,we are satisfied that the detenu Sri.Elavarashu,
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S/o Late Anparasu, Sreesoliyamman Nagar, Veyyapuri Nagar P.O.,
Karoor-2, Tamil Nadu is entitled to be released from custody, if his
continued detention is not necessary in connection with any other case.
Ordered accordingly.
We make it clear that it will be open to the competent authority to
pass fresh orders of detention in accordance with law, if the situation so
warrants.
A.K. BASHEER,
JUDGE
P. BHAVADASAN,
JUDGE
sb.