IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 372 of 2008(S)
1. SADASIVAN, S/O. ARJUNAN ACHARI
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED
... Respondent
2. DISTRICT COLLECTOR AND DISRICT
3. SUPERINTENDENT OF POLICE,
4. THE STATION HOUSE OFFICER,
For Petitioner :SRI.M.RAJAGOPALAN NAIR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :15/01/2009
O R D E R
A.K.BASHEER & THOMAS P. JOSEPH, JJ.
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W.P.(Criminal) No.372 of 2008 S
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Dated this the 15th day of January, 2009.
JUDGMENT
Basheer, J.
Is the order of detention of Shri M.S.Prakash Kumar, S/o.Sadasivan,
Melekizhakkathil Veedu, T.B.Junction, Kozhencherry Village, Pathanamthitta
issued by the Authorised Officer under Section 3(2) of the Kerala Anti-Social
Activities (Prevention) Act, 2007 (for short, ‘the Act’) legally valid and
sustainable?.
2. The above question has come up for consideration before us in the
following facts and circumstances: Petitioner’s son Prakash Kumar was
arrested and detained in Central Prison , Thiruvananthapuram on August 20,
2008 pursuant to Ext.P1 order dated April 30, 2008 issued by the Authorised
Officer/District Magistrate, Pathanamthitta. Ext.P1 reveals that the Authorised
Officer after having considered the information received from the Station House
Officer of Aranmula Police Station vide FIR No.320/2007 dated 21.6.2007
through the Superintendent of Police, Pathanamthitta, was satisfied that Shri
M.S.Prakash Kumar was “a nuisance and danger to the public”, that he had been
carrying dangerous weapons to intimidate the public and also that if he was
allowed to go free he was likely to involve in more crimes which would endanger
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the life and properties of the public. The Authorised Officer further took the
view that if Shri Prakash Kumar was allowed “to remain at large he would indulge
in antisocial activities which would directly or indirectly cause harm, danger or
alarm or a feeling of insecurity among the general public or residents of the area
or result in grave or widespread danger to life/public health in that area.”
3. It is not in dispute that the grounds of detention, a copy of which is
on record as Ext.P2, was served on the detenu. The Authorised Officer has
referred to seven crimes registered against the detenu between 2002 and 2007
by Aranmula Police and Koipuram Police in Ext.P1. We will refer to the details of
the above crimes a little later.
4. It is contended by the petitioner that order of detention is ex pace
illegal and vitiated as non-application of mind is writ large on the face of the said
order. It is pointed out by the learned counsel that Crime No.182 of 2002, Crime
No.222 of 2002 and Crime No.386 of 2003 all of which were registered by
Aranmula Police against the detenu, were no longer pending, as those cases
were disposed of by the jurisdictional Magistrate in 2004-05. The above three
crimes are shown as serial numbers 1 to 3 in Ext.P2. Significantly the
Authorised Officer has stated in the grounds of detention that all the above three
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cases are pending trial before the Judicial Magistrate of First Class-I,
Pathanamthitta. He has also referred to certain numbers of Calender Cases in
respect of those crimes in Ext.P2. The contention of the petitioner is that the
Calender Case arising out of Crime No.182 of 2002 was disposed of on June
17, 2004 whereas the case in relation to Crime No.222 of 2002 was disposed of
on March 30, 2005. Similarly the case arising out of Crime No.386 of 2003 had
been disposed of by the court on May 10, 2005. While conceding that serial
numbers 4 to 7 are pending against the detenu, it is contended by the learned
counsel that Exts.P1 and P2 will clearly indicate that there was total absence of
application of mind. He contends that the sponsoring authority and the
Authorised Officer could not have pleaded ignorance about the status of those
three cases.
5. In response to the above contention, it is contended by Shri
Ravindranath, learned Additional Director General of Prosecution that even
assuming that the Authorised Officer had failed to indicate in Ext.P2 that the
above three cases had been disposed of already, the fact that four other crimes
are still pending against the detenu is good enough to sustain the order of
detention. He further contends that an order of detention issued under Section 3
(2) shall not be deemed to be invalid merely because one or more of the facts
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cited among the grounds are vague or non-existent for any reason whatsoever.
Learned Additional Director General further contends that the order of detention
shall be deemed to have been made by the Government or Authorised Officer
after having been satisfied about the need for issuing such an order, having
regard to the remaining facts and circumstances. He lays heavy emphasis on
the subjective satisfaction that has to be arrived at by the Authorised Officer
keepig in view “the need of detention with reference to the remaining facts and
circumstances”.
6. It is true that the above contention raised by Shri Ravindranath is
supported by the provisions contained in Section 3 of the Act. But it has to be
remembered that subjective satisfaction of the detaining authority is of
paramount importance. The power vested with either the Government or the
Authorised Officer to detain a citizen in preventive custody can be used only with
utmost care and caution and that too only adhering to the strict parameters laid
down under the statute.
7. We need not refer the various provisions contained in the Act at
this juncture to elaborate the settled position. We may only refer to the decision
of their Lordships of the Supreme Court in Dharamdas Shamlal Agarwal v.
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Police Commissioner [(1989) 2SCC 370] in this context. In the above case an
order of detention passed under Sections 3(2) and 6 of the Gujarat Prevention
of Anti-Social Activities Act, 1985 was challenged on the ground that the
detention of the detenu was necessary to prevent him from acting in any manner
prejudicial to public order in the area of Ahmedabad City. While referring to
Section 6 of the above Act which is in pari materia to Section 7(4) of the Act,
the Apex Court noticed that the detaining authority had failed to refer to the
acquittal of the detenu in two cases which were taken as grounds of detention of
the detenu in that case. After referring to a number of earlier decisions their
Lordships observed thus –
“From the above decisions it emerges
that the requisite subjective satisfaction, the
formation of which is a condition precedent to
passing of a detention order will get vitiated if
material or vital facts which would have
bearing on the issue and weighed the
satisfaction of the detaining authority one way
or the other and influenced his mind are
either withheld or suppressed by the
sponsoring authority or ignored and not
considered by the detaining authority before
issuing the detention order. It is clear to our
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mind that in the case on hand, at the time
when the detaining authority passed the
detention order this vital fact namely, the
acquittals of the detenu in case numbers
mentioned at serial Nos. 2 and 3 have not
been brought to his notice and on the other
hand they were withheld and the detaining
authority was given to understand that the
trial of those cases were pending.”
It may at once be noticed that in the case on hand the factual position is almost
identical. As mentioned earlier in three of the cases referred to in Ext.P2,
grounds of detention, the admitted position is that the detenu had been
acquitted way back in the year 2004-05. But still, in Ext.P2 the Authorised
Officer stated that those three cases were pending trial before the jurisdictional
Magistrate. Learned Additional Director General tried to salvage the situation
by saying that even ignoring those three cases, there were sufficient materials
on record, namely, pendency of four other cases, that would be sufficient
enough to arrive at a subjective satisfaction by the detaining authority to order
detention. In this context learned Additional Director General also relies on
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the severability of the grounds of cases pending against the detenu. But we are
afraid, the above contention is totally unsustainable particularly in view of the
decision of the Apex Court cited supra.
8. The next contention raised by the petitioner is that the Authorised
Officer had primarily relied on the report of a Station House Officer rather than
that of the Superintendent of Police as mandated under Section 3(1) of the Act.
The opening words of Ext.P1 justifies the above contention. But it is contended
by Shri Ravindranath that the Authorised Officer had perused and considered
the preliminary report dated January 11,2008 forwarded by the Superintendent
of Police, Pathanamthitta as is revealed from Ext.P2, grounds of detention. But
there is no clue as to whether the Authorised Officer had relied on this report
while passing Ext.P1 because what is referred to in Ext.P1 order of detention is
only the so-called “credible information” received from the Station House Officer
of Aranmula Police Station in FIR No.320/2007 dated June 21,2007. In that view
of the matter we are not persuaded to accept the contention raised by the
learned Additional Director General that the Authorised Officer had issued
Ext.P1 based on the so-called “preliminary report” of the Superintendent of
Police. In our view the order of detention is vitiated since the Authorised Officer
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could not have, going by the provisions contained in Section 3(1) of the Act,
relied on the information received from a Station House Officer albeit , such
information was routed through the Superintendent of Police concerned.
9. Third contention raised by the petitioner is that there was
unexplained delay in executing the order of detention. As mentioned earlier,
Ext.P1, order of detention was issued on April 30,2008. But, admittedly the said
order was executed by arresting the detenu only on August 20, 2008. In this
context learned counsel has invited our attention to the decision of their
Lordships of the Supreme Court in K.P.M.Basheer v. State of Karnataka
[(1992) 2 SCC 295]. In the above decision, the order of preventive detention
issued under the COFEPOSA Act was executed after a lapse of five months.
After considering the explanation offered for the so-called delay by the detaining
authority, the Apex Court held thus –
“……………the order of detention cannot be
sustained since the ‘live and proximate link’
between the grounds of detention and the
purpose of detention is snapped on account of
the undue and unreasonable delay in securing
the appellant/detenu and detaining
him. …………..”.
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It is seen from the above decision that the order of detention of the detenu in
that case was set aside on that sole ground.
10. The last contention raised by the petitioner is that there is violation
of Sub-section (3) of Section 3 of the Act. It is contended by Shri Rajagopalan
Nair, learned counsel for the petitioner, that the Authorised Officer ought to have
reported about the issuance of the detention order forthwith to the Government
as well as the Director General of Police, Kerala together with a copy of the
order and supporting records which, in his opinion, have a bearing on the
matter. A perusal of Sub-section (3) of Section 3 of the Act clearly indicates that
there is considerable force in the above contention.
11. It is revealed from the counter affidavit of respondent No.1 that the
Government had received the report of issuance of the detention order only after
it had been executed. Therefore, we are satisfied that Ext.P1 order cannot be
sustained.
Having regard to the entire facts and circumstances and also for the
forgoing reasons, we are satisfied that Ext.P1 order is illegal and unsustainable
and is therefore, liable to be quashed. We do so. The detenu shall be released
from custody forthwith if his further detention is not necessary in connection with
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any other case. We make it clear that this order will not stand in the way of the
competent authority to pass appropriate orders under the Act in accordance with
law.
A.K.BASHEER,
Judge.
THOMAS P.JOSEPH,
Judge.
cks