IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32572 of 2009(N)
1. BEEVI, W/O. AALIKUNJU,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE ADVISORY BOARD,
3. THE DISTRICT COLLECTOR/DISTRICT
4. THE SUPERINTENDENT OF POLICE,
5. THE DY. SUPERINTENDENT OF POLICE
6. THE C.I OF POLICE,
7. THE S.I OF POLICE,
For Petitioner :SRI.R.SUDHISH
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :14/01/2010
O R D E R
K.M.JOSEPH & P.Q.BARKATH ALI, JJ.
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W.P.(C) No.32572 OF 2009
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Dated this the 14th day of January, 2010
JUDGMENT
Joseph, J.
The petitioner seeks the following reliefs :
“i. Call for the records leading to issuance of
Ext.P1 from the 3rd respondent and quash the same by
issuing a writ of certiorari , or any other appropriate
writ, order of direction .
ii) Call for the records leading to issuance of
Ext.P7 and quash the same by issuing a writ of
certiorari and release the detenu K.K.Razack @
Abdul Razack from the prison forthwith .
iii) Declare that 7th respondent have no right
to register a crime against the detenu under Section 3
(1) of the Act for detaining him in Jail.”
2. The case of the petitioner in brief is as follows:
The petitioner is the mother of K.K.Razack @ Abdul Razack who
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is detained by an order passed under Kerala Anti-Social Activities
( Prevention) Act 2007 (herein after referred to as the Act). The order
of detention is dated 31-08- 09 (Ext.P1). The petitioner produced the
grounds of detention as Ext.P2. The allegation against the detenu
essentially is that the detenu is a ‘Known Goonda”. The basis for
objective satisfaction in this regard is sought to be derived from two
crimes registered under Section 21(a) of The Narcotic Drugs and
Psychotropic Substances Act, 1985. It is alleged that on 8/8/2007 at
16.20 hrs. the Sub Inspector of Police arrested the detenu with 3 gms.
of brown sugar from Moonnamthode junction, Thamarassery chungam.
A charge sheet has been filed before the Judicial First Class Magistrate
I, Thamarassery on 22-01-2008 as C.C.No.50/2008 and the case is
pending trial. Again on 9/8/2008 at 9.40 hrs. the detenu came to be
arrested with 1gm and 510 m.g. of brown sugar from Thamarassery
Chungam and FIR was registered under Section 21(a) of NDPS Act on
9/8/2008. A charge sheet has been filed before the JFCM,
Thamarassery on 5/2/2009 and the case is pending as C.C.No.139/99.
It is further stated by the District Magistrate in Ext.P1, the order of
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detention, that he has evaluated the information received from the
Superintendent of Police and that he is satisfied that the detenu is a
‘Known Goonda” and if he happens to be released, he would indulge in
anti social activities detrimental to the maintenance of public safety
order and peace in the locality.
3. We heard the learned counsel for the petitioner. Learned
counsel for the petitioner would essentially make the following
submissions before us :
There is non-application of mind by the detaining authority. It is
pointed out that there are only two cases. The first case was in the year
2007. Thereafter the second crime was registered on 9-8-2008. There
is inordinate delay in passing the detention order and that it is passed
only on 31-08-2009. It is pointed out that there is no other instances.
It is submitted that the link between the incident and the need for
detention did not exist at the time when the order of detention was
passed. It is further contended that the offences are said to be
committed under Section 21(a) of NDPS Act and the maximum
punishment in respect of the offence alleged would be six months. It is
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submitted that the offences are minor offences . Reference is made to
the quantity of the substances which have been seized . It is submitted
that detenu has been in detention for four months and one week. It is
further contended that under Section 2(t) of the Act which defines the
word “Known rowdy”, only if he is found guilty in one offence which
bears punishment of more than five years or he commits three offences
where the sentence should not be less than one year can a person be
characterised or deemed as a “known rowdy”. It is pointed out that the
maximum punishment in both the crimes registered against the detenu
is only six months each. Reference is made to Nisha Salim v. State of
Kerala and others (2009(2) KHC 1014(DB) to contend that this is not
a case where the authorities were justified in ordering detention. It is
further contended that it is a case where there is violation of Sections 7
(1), 7(2) and 7(3) of the Act. It is the case of the petitioner that in
breach of the mandate of Section 7(1), the order of detention was
neither read out to nor served on the detenu. Instead, it was served on
detenu’s relative. There is also transgression of the dictate of Section 7
(2), it is contended, in so far as the materials were not made available
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to the detenu. It is further contended that Section 7(3) stood breached
by the reason of the fact that the detenu could not represent properly
and there is no opportunity for legal consultation made available. It is
further submitted that the detenu could not file any representation as he
is an illiterate person and he was not served with the order of detention
or the materials in breach of Sections 7(1) and 7(2) of the Act.
Exts.P4 and P5 representations were filed by the petitioner
before the Government and the Advisory Board respectively and it is
submitted that the representation has been disposed of by the
government vide Ext.P6. There is no consideration as required in law.
It is again contended by the learned counsel for the petitioner that the
order approving the original order of detention under Section 3(3) was
communicated to the detenu only in English.
Lastly it is contended that there is violation of Section 20 of the
Act in so far as though Section 20 mandates that the orders issued by
the government under the Act should bear the seal and the signature of
the officer, Ext. P7 order approving the order of detention does not
bear the seal and signature of the officer and it is instead issued
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authenticated by the Section Officer.
4. Learned Government Pleader would contend that there is
no merit in the writ petition. He would point out that the offences are
serious as they relate to sale of brown sugar. He would submit that
having regard to the nature of the trade, this court need not be feel
persuaded by the quantity involved in judging the seriousness of the
issues . He would further contend that there is some time taken for
investigation and filing charge sheet in the second incident. The
charge sheet was filed, it is contended, on 5-2-2009 in respect of the
alleged offence committed on 9-8-2008. It is further stated that
necessarily procedures have to be complied with and in the facts of this
case there is no delay. It is submitted that the Sub Inspector of Police
has filed a report and it is considered by the Circle Inspector of Police
and it is placed before the Superintendent of Police and later the matter
was placed before the detaining authority and the order is passed within
a reasonable time. Having regard to the nature of the offences also, the
link has not been snapped. . It is pointed out that it is note worthy that
the second incident was committed by the detenu while he was on bail
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in connection with the earlier offence and this has been stated in the
counter affidavit. It is further submitted that there is no merit in relying
on Section 2(t) in a case where the allegation is that the detenu is a
“Known Goonda” and it is irrelevant. It is further submitted that all the
formalities have been complied with in this case. The order of
detention is served on the detenu and acknowledgment is received.
The materials were also served on the detenu. It is pointed out that
there is no question of opportunity being afforded to the detenu by way
of legal consultation, if the detenu does not make any demand and the
right to legal consultation is essentially enshrined in the context of the
right to make representation before the Government and the Advisory
Board which is essentially the right which is enshrined under Article
22(5) of the Constitution also. It is contended by the learned
Government Pleader that no grounds have been made out in the
representation filed by the petitioner. The representation was
considered and Ext.P6 order was passed. It is further stated that the
law does not require communication of the order approving the order
of detention which means that the fact that the order of approval was
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communicated to the detenu in English is irrelevant and cannot advance
the case of the petitioner. It is lastly contended that there is no merit
in the contention based on Section 20 of the Act.
5. Whether the order of detention is illegal by the reason of
the fact that it is passed on 31-08-2009 ?
The detenu is detained under Ext.P1 order on the basis that he is
a “Known Goonda”. For arriving at this objective satisfaction,
reference is made to two cases. Both the cases are under the NDPS
Act. The detenu has been charge sheeted in two separate instances not
forming part of the same transaction for having committed the acts
within the meaning of the term “goonda”. There is no dispute that the
two offences alleged against the detenu can be treated as acts within the
meaning of the term goonda. Neither the detaining authority or
government, nor this court is ordinarily concerned with as to whether
the said offenec is committed and it is a matter to be considered by the
criminal courts. For the purpose of this case that it can be safely said
that the detenu satisfies the objective criteria to be classified as a
known goonda. We are not inclined to render the order of detention
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vulnerable on the plea of the learned counsel for the petitioner that the
case against the detenu, in particular the second offence is fabricated.
There is absolutely no plea of malafides even warranting an
investigation into that question.
6. We notice that while it is true that the second incident took
place on 9-8-2008 and the detention order was passed on 31-08-2009.
But we cannot over look the fact that there had to be investigation and
filing of a final report and charge sheet was filed in respect of an
offence which was allegedly committed on 9-8-2008 on 5-2-2009.
Thereafter we find on a perusal of the files that the Sub Inspector of
Police initiated the proceedings for filing a report before the
Superintendent of Police in June 2009. No doubt when the report of
the police was placed before the District Magistrate, he directed the
registration of crime under Section 3 of the Act. Whatever that be,
within a period of two months of the sponsoring of the case, an order
of detention has been passed by the detaining authority. Necessarily
the authorities must apply their mind as to whether resort must be
made to the grave powers which are available under the Act as it
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would involve deprivation of liberty of a person. We also cannot
overlook the fact that the second offence namely the offence on 9-8-
2008 was allegedly committed by the detenu while he was on bail. The
earlier offence was committed nearly one year back. Therefore it
cannot be said that in the facts of this case, there is snap of the link or
that there is no nexus available to pass the order of detention on
31-8-2009. The order was executed immediately without any delay
and the detenu was admittedly arrested on 6-9-2009.
7. There is compliant by the learned counsel for the petitioner
that under Section 2(t) of the Act unless there is an offence which bears
the maximum punishment which is not less than one year, it cannot be
taken into consideration, where as the offence committed by the detenu
allegedly is one where the maximum sentence is less than one year.
We are afraid that there is no merit in the contention. There is no
challenge to the vires of the Act. The order of detention is premised on
the detenu being a “known goonda”. We are only to consider whether
the detenu satisfies the objective criteria to be proceeded against as a
“known goonda”. We have already held that the detenu satisfies the
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criteria to be proceeded against as a “known goonda”. We are not sit in
judgment over the wisdom, legality and propriety of legislature
providing different criteria for persons to be classified as “known
Goonda” on the one hand and “known rowdy” on the other. It is a
matter which is clearly beyond the pleadings and the reliefs in the writ
petition.
8. Learned counsel for the petitioner pointed out that in
Ext.P1 there is reference to the report by the police authorities that
petitioner is continuing with his activities and there is no basis for that.
When an order of detention is passed, undoubtedly, there must be
subjective satisfaction. Subjective satisfaction is essentially a
prognosis of what a person may do in the future based on his activities
in the past. The Act in fact contemplates the fulfilment of objective
criteria on the basis of certain events which are predicated in the Act.
Learned Government pleader justified the report of the Superintendent
of Police that the detenu was active. We cannot overlook the line of
criminal activity that the detenu is alleged to be engaged in in this
regard also.
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9. We are also not convinced that the petitioner can derive any
assistance from 2009(2) KHC 1014. There is a distinction between the
public order, disorder or law and order. They are all well known
concepts. We should not be oblivious of the facts of this case. The
offences which are alleged against the detenu are, in our view, serious,
as they relate to the sale of brown sugar and are concerned with aspects
of safety and health of members of society. In fact there is reference
in the counter affidavit to the effect of sale of such substances on the
health of the young members of the society and if the detaining
authority as also the government felt that the detenue is to be detained
so as to prevent him from committing offences for which apparently
there is material and matter in the form of charge sheets filed in respect
of two offences committed under the said Act one in 2007 and another
in 2008, we do not think it is for this court to sit in judgment in
judicial review over the subjective satisfaction of the authorities in this
regard.
10. Whether there is violation of Sections 7(1), 7(2) and 7(3) of
the Act ? The allegation that there is violation of Sections 7(1) and 7
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(2) have been denied in the counter affidavit. It is stated that the order
of detention and the records were in fact served on the detenu under
proper acknowledgment. The learned Government Pleader made
available the files . A perusal of the files would also clearly probabilise
the case of the respondents that the detenu acknowledged the receipt of
the order of detention on the date of detention itself. Therefore we
cannot lay much store in the case of the petitioner that the detenu was
not served the order of detention. The acknowledgment would show
that the order of detention was indeed read out to him. There is also no
basis for the complaint under Section 7(2). The files would reveal that
the records were made available to him.
11. The next question is whether there is violation of Section 7
(3). Section 7(3) of the Act reads as follows :
“The Superintendent of the Jail where such
person is detained shall afford him reasonable
opportunity to consult a lawyer and reasonable
assistance in making a representation against the
detention order to the government or to the Advisory
Board.”
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12. We also bear in mind Article 22(5) which reads as
follows :
When any person is detained in
pursuance of an order made under any law
providing for preventive detention, the
authority making the order shall, as soon as
may be, communicate to such person the
grounds on which the order has been made
and shall afford him the earliest opportunity
of making a representation against the order.
13. A perusal of Section 7(2) would show that the materials,
the grounds of detention and other documents are to be served on the
detenu. It further provides that he must be specifically told that he has
a right to make a representation to the government and to the Advisory
Board. It is in the context of this right to make a representation that
Section 7(3) provides that the Superintendent of Jail shall make
available opportunity for legal consultation and to assist him in the
making of representation. There can be no doubt that in view of the
compliance with Section 7(2) it must be held that the detenu was aware
of his legal right and constitutional right to make a representation to
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the government and to the Advisory Board. The order would also show
that the detenu was informed that he has a legal right to make
representation to the government and to the Advisory Board. The
detenu may or may not exercise the right to make a representation.
Neither the constitution nor any law compels a person detained to
make a representation. It is a right which is available to him which he
may or may not exercise. What Section 7(3) of the Act contemplates in
our view is that if the detenu upon being informed of his right to make
a representation under Section 7(2) desires to make a representation,
the Superintendent of Jail is legally obliged to assist him in the making
of representation and also in this direction to afford a reasonable
opportunity to consult a lawyer. We would think that the consultation
with a lawyer under Section 7(3) is essentially for the purpose of
making representation. The law of preventive detention does not
contemplate grant of bail.
14. In the context of the provisions, we cannot hold that there
is a duty on the part of the Superintendent of Jail to inform the detenu
that he has a right to consult a lawyer even if the detenu does not seek
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it. We find merit in the contention of the learned Government Pleader
that where the legislature intended that the right should be made
known to the detenu, it has been specifically incorporated. A case in
point is the mandate of Section 7(2) that the detenu must be informed
of his right to make a representation to the government and to the
Advisory Board. There is no such right which is incorporated in the
Act to make known to the right of the detenue for consultation with a
lawyer. Essentially if the detenu seeks any such consultation, it cannot
be denied to him by the Superintendent of Jail and the Superintendent
of Jail is bound to make available opportunity for consultation with a
lawyer. This we think is the scheme of the Act. Therefore, we see no
merit in the contention of the petitioner based on Section 7(3) of the
Act.
15. We see no merit in the contention based on Ext.P6. Ext.P6
is the order by which the petitioner was informed that the
representation filed by her stands rejected. Exts.P4 and P5 are the
representations filed. On a perusal of the representation, the substance
of the representation appears to be, in short, that the detenu is innocent.
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We do not think that it could be said on the basis of the representation
filed by the petitioner that Ext.P6 is vitiated or that there has been no
proper consideration of the representation. As far as the question of
communication of the order of approval in English is concerned, we are
of the view that there is no merit in the same. If there is no legal
obligation to communicate the order of approval of detention to the
detenu we see no purpose or merit in the contention that the detention
is bad as the order is not communicated in Malayalam.
16. We also see no merit in the contention based on Section 20
of the Act. Ext.P7 is the order approving the detention. Therein the
name of Additional Chief Secretary to Government is shown and it is
signed by the section officer. The answer to petitioner’s contention is
found in paragraph 18 of the counter affidavit of the first respondent.
It reads thus :
“The averments in para 15 of the writ
petition are not true. As per para 163, Chapter X
of the Secretariat Manual, when final decision of
Government are communicated, they have to be
embodied in the form of Government Order or
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Circular. A confirmation Order under Section 10
(4) of the Act is final in nature and therefore the
decision in this case was communicated as G.O.
(Rt)No.3353/2009/Home dated 12-11-2009 in
the form of a Government Order prescribed in
Appendix II of the Secretariat Manual. The
format so prescribed does not require the seal and
signature of the Secretary to Government.
17. Learned Government Pleader would submit that the order
containing the seal and signature as required under Section 20 should
be there in the files. At any rate we do not think that this is a ground on
which we should grant relief to the petitioner. There is another aspect
of the matter. It is brought to our notice by the learned counsel for the
petitioner that the law of preventive detention is not a punitive
measure, but it is a jurisdiction to prevent commission of undesirable
activities. It is pointed out that the person who is preventively
detained is however sent to jail and has to spend time with convicted
persons. Far from reforming any person so detained, it may only make
matters worse. We feel that this is a matter which should engage the
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attention of the government and we direct the Secretary, Ministry of
Home to bestow his attention in the matter so that persons who are
detained need not spend time detained with convicts.
Learned counsel for the petitioner submitted that petitioner has
already undergone detention for a period of four months and one week.
However, we do not think that the petitioner has made out any ground
for interfering with the order of detention. Accordingly, the writ
petition fails and the same is dismissed.
K.M.JOSEPH, JUDGE
P.Q.BARKATH ALI, JUDGE
sv.
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K.M.JOSEPH, JUDGE
P.Q.BARKATH ALI, JUDGE
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sv.