IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl) No. 193 of 2007(S)
1. A.M.MOIDEEN, S/O.MARAKKAR,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY
... Respondent
2. THE DISTRICT MAGISTRATE AND DISTRICT
3. THE SUPERINTENDENT OF CENTRAL PRISON,
4. THE SUB INSPECTOR OF POLICE,
For Petitioner :SRI.O.V.MANIPRASAD
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :19/09/2007
O R D E R
K.BALAKRISHNAN NAIR & T.R.RAMACHANDRAN NAIR, JJ.
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Writ Petition (Crl) No.193 of 2007-S
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Judgment
Balakrishnan Nair, J.
The petitioner is the father of Mr.A.M.Ummer, who has been detained
under the provisions of the Kerala Anti Social Activities (Prevention) Ordinance
2007 (Ordinance No.30/07), by order dated 19.06.2007 of the second
respondent District Magistrate. The brief facts of the case are the following :
2. The allegation against Mr.A.M.Ummer, who is hereinafter referred to
as the detenu, is that he is indulging in illegal mining and transporting of river
sand from Bharathapuzha river. In other words, he is a depradator of
environment. So, the District Magistrate issued Ext.P1 detention order dated
19.06.2007 and in execution of that order, the detenu was arrested and he is
suffering incarceration from the said date onwards. Ext.P2, which contains the
grounds of detention, was also served on him, along with Ext.P1. Ext.P1 order
of detention was confirmed by the Government by Ext.P4 order dated
29.06.2007. There was a mistake in the said order, in which, the petitioner was
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described as a “Known Rowdi”, instead of “Known Goonda”. The said mistake
was corrected by issuing Ext.P5 order dated 16.07.2007. The detenu filed
Ext.P7 representation before the Advisory Board, constituted under the Act. He
submitted that he knew about the consideration of his case by the Advisory
Board, only when the said Board visited the prison to hear the detenu. The
said representation was followed by Ext.P8 representation before the
Government by the detenue and Ext.P9 representation by the petitioner and
the wife of the detenu. The Government replied to Ext.P9 by Ext.P10, stating
that the representation under the Ordinance No.30/2007 can be filed only by
the detenu and not by his relatives. In the above background, this Writ Petition
is filed, praying for the issuance of a writ of habeas corpus for the production of
the detenu before this Court and to set him at liberty.
3. The petitioner attacks the detention of his son on various grounds.
The following irregularities are pointed out against the detention order :-
1) The District Magistrate, as evident from the impugned order, acted on the
report of the SI of Police and not on the report of the District Superintendent of
Police. The District Superintendent only forwarded the report of the SI of Police
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to the District Magistrate.
2) Several documents are seen relied on in the impugned order, the copies of
which were not served on him.
3) The detention order as well as the grounds of detention was in English and
therefore, he was disabled from filing an effective representation.
4) The Government should have passed the confirmation order within 10 days.
In this case, the initial confirmation order Ext.P4 is a void order, as the
Government proceeded on the footing that the detenu is a “Rowdi”. The
second confirmation order was passed after the above said time limit. So, the
confirmation was never validly made. There is total non-application of mind
from the part of the Government in issuing the confirmation order.
4. Apart from the above procedural improprieties, it is also contented
that the detenu has not been found guilty for the violation of Section 4(1A) of
the Mines & Minerals (Development & Regulation) Act, 1957. So, his case is
not covered by the first limb of Section 2(o) of Ordinance No.30/07, defining a
“Known Goonda”. Therefore, the detention order suffers from this substantive
invalidity also, it is submitted.
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5. The respondents have filed a counter affidavit, dealing with the
contentions of the petitioner in the Writ Petition. According to them, the
detention order has been validly made. The SI of police only forwarded the
report to the District Superintendent of Police, who, in turn, applied his mind
and submitted a report in terms of the provisions of the Act before the District
Magistrate, who relied upon it and passed the impugned order. Similarly, the
other procedural improprieties pointed out by the petitioner are also met in the
counter affidavit. Regarding the substantive challenge also, the respondents
have given their explanation. According to them, the detenu pleaded guilty to
the charges of violation of Section 4(1A) of the Mines and Mineral
(Development and Regulation) Act, 1957. So, the detenu clearly comes under
the definition of “Known Goonda” and therefore, the detention order is validly
made. The respondents have also produced copies of Exts.P1 and P2, in
which the detenu has made an endorsement to the effect that the order and
the grounds of detention were read over and explained to him in Malayalam
and that he understood them. Therefore, the respondents pray for dismissal of
the Writ Petition.
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6. We heard the learned counsel Shri.O.V.Maniprasad, for the petitioner
and the learned Special Government Pleader and Laison Officer
Shri.K.K.Ravindranath, on behalf of the respondents. Before going into the
procedural improprieties in the proceedings of the second respondent, we
would first consider the substantive ground raised by the writ petitioner that the
detenu has not been found guilty by any competent Court or authority, for an
offence mentioned in Section 2(j) of the Ordinance and therefore, he cannot be
treated as a “Known Goonda” under Section 2(o) of the Ordinance No.30/2007
(hereinafter referred to as the Goonda Ordinance). For convenient reference,
we think, it will be helpful to extract the relevant provisions of the above said
Ordinance. Section 2(j) reads as follows :
“Goonda means and includesa person who indulgesin or
promotes or abetsillegalactivitieswhich are,directlyor
indirectly, prejudicial to themaintenanceof publicorder
and includes a bootlegger,a counterfeiter,a depredatorof
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environment,a digitaldata and copy rightpirate,a drug
offender,a Hawalaracketeer,a hiredruffian,an immoral
trafficoffender,a loansharkora propertygrabber. ”
The circumstances, under which a “Goonda” can be treated as a “Known
Goonda” are given in Section 2(o), which reads as follows :
“Known Goonda means a goonda,who had been,foracts
donewithintheprevioussevenyearsas calculatedfrom the
dateoftheorderimposinganyrestrictionordetentionunder
thisOrdinance:-
(i)foundguilty,by a competentCourtorauthority,atleast
onceforan offencewithinthemeaningoftheterm’goonda’
asdefinedinclause(j)ofSection2;or
(ii)found in any investigationor enquiryby a competent
policeofficeror othercompetentauthority,on complaints
initiatedby persons other than police officers,in two
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separateinstancesnotformingpartofthesame transaction,
committedanyactwithinthemeaningoftheterm ‘goonda’
asdefinedinclause(j)ofSection2.”
A “Known Goonda” can be detained under Section 3(1) by the Government or
an Officer, authorised by the Government under Sub-section (2) of Section 3. It
is not in dispute that the District Magistrate, the second respondent herein is
an authorised Officer under Section 3(2). Sub-sections (1) and (2) of Section 3
read as follows:
“Powertomake orders,detainingKnown Goondasand Known
Rowdies-
(1) The Governmentor an Officerauthorisedundersub-
section(2)may,ifsatisfiedon informationreceivedfrom a
PoliceOfficernotbelowthe rankof a Superintendentof
PolicewithregardtotheactivitiesofanyKnown Goondaor
Known Rowdy, that with a viewtopreventingsuchperson
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from indulginginanyanti-socialactivity,withintheStateof
Keralainany manner,itisnecessaryso to do,make an
order,directingthatsuchpersonbedetained.
(2)Ifhavingregardtothecircumstancesprevailingorlikely
toprevailinanyarea,theGovernment,ifsatisfiedthatitis
necessaryso to do,may, by orderin writing,directthat
during suchperiodas may be specifiedinthesaidorder,
the DistrictMagistratehavingjurisdictionmay exercisethe
powersundersub-section(1)inrespectofpersonsresiding
withinhisjurisdictionor inrespectofany personwho has
beenactingorisabouttoact,againstpublicsafety,order
andpeacewithinsuchjurisdiction. ”
On being satisfied as contemplated under Sub-section (1) quoted above, a
Known Goonda can be detained by the second respondent. It is the case of
the respondents that the detenu is treated as a Known Goonda under the first
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limb of Section 2(o). The petitioner submits that the detenu was never found
guilty by any competent Court or authority, during the previous seven years
from the date of Ext.P1. The allegation against him is that he has committed
the offence under Section 4(IA) of the Mines & Minerals (Development &
Regulation) Act, 1957. The said provision reads as follows :
“No person shall transport or store or cause to be
transported or stored any mineral otherwise than in
accordancewiththe provisionsof thisAct and the rules
madethereunder. ”
Going by Ext.P1, the 2nd respondent proceeded on the footing that the
detenu has been found guilty by the SI of Police, Chelakkara, under
Section 4(1A), read with Section 21(1) of the said Act and a fine of
Rs.20,000/- has been imposed on him on 21.03.2005. Similarly,
he has been found guilty by the SI of Police, Chelakkara and fined
on 27.03.2006, 06.11.2006, 19.02.2007, 20.03.2007 and 04.05.2007.
Again, he has been found guilty and ordered to pay fine by the SI
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of Police, Cheruthuruthy on 05.01.2007 and 17.03.2007 under the
aforementioned provisions of the above said Act. The learned counsel for the
petitioner points out that the SI of Police is not competent to impose any fine
for transporting river sand. In support of that submission, reliance is placed on
Ext.P6 Judgment of the Division Bench of this Court. He also points out that
only a competent Court can find a person guilty. The SI of Police is not a
competent authority, who can hold that the detenu is guilty. Therefore, the
jurisdictional preconditions for ordering detention are not present in this case.
In other words, he cannot be treated as a “Known Goonda” and therefore, the
detention order is bad. The learned Special Government Pleader, on the other
hand, referred to Section 23A of the Mines & Minerals (Development &
Regulation) Act, 1957, which authorises the compounding of offences by
officers, who are authorised under Section 22 of the Act, to file complaints
before the court concerning the commission of offences under the provisions of
the Act. Section 22 of the above said Act reads as follows :
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“Cognizanceofoffences:- No courtshalltakecognizanceof
any offencepunishableunderthisAct or any rulesmade
thereunderexcept upon complaintin writingmade by a
personauthorisedinthisbehalfbytheCentralGovernmentor
theStateGovernment.”
Section 23A, concerning compounding of offence reads as follows :
(1)AnyoffencepunishableunderthisActoranyrulemade
thereundermay,eitherbeforeoraftertheinstitutionofthe
prosecution,be compoundedby thepersonauthorisedunder
section22 tomake a complainttothecourtwithrespectto
thatoffence,on paymentto thatperson,forcreditto the
Governmentofsuchsum asthatpersonmay specify:
Providedthatinthecaseofanoffencepunishablewith
fineonly,no suchsum shallexceedthemaximum amountof
finewhichmay beimposedforthatoffence.
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2) Wherean offenceiscompoundedundersub-section(1),
no proceedingor furtherproceeding,as thecase may be,
shallbe takenagainsttheoffenderinrespectoftheoffence
so compounded and the offender,ifin custody,shallbe
releasedforthwith .”
The learned counsel for the respondents made special reference to the
notification issued under SRO 827/91, published in the Kerala gazette Extra
Ordinary No.796 dated 26.06.1991. It is a notification issued under Section 22
of the above said Act, authorising various Officers to file complaints before the
courts concerned, so that they can take cognizance as contemplated under
Section 22 quoted above. Serial No.3 of the said notification refers to Police
Officers of and above the rank of SI of Police in the State. They have been
authorised to file complaints within their respective areas of jurisdiction. By
virtue of that notification, the SI of Police can compound the offences under
Section 23A. It is pointed out that in all these cases, the detenu pleaded
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guilty before the police and the offences were compounded by imposing a
penalty in accordance with law. Therefore, it should be treated that in all these
cases, the detenu has been found guilty by the SI of Police, for the purpose of
the first limb of Section 2(o), defining a “Known Goonda”. So, the detention
order is valid, it is submitted.
7. We notice that the maximum penalty provided under the provisions of
the above said Act for the offence under Section 4(1A) is imprisonment for a
term, which may extend to two years or with fine, which may extend to
Rs.25,000/- or both. So, going by Part II of the schedule to the Code of
Criminal Procedure, which deals with offences, under other enactments other
than IPC, the violation of Section 4(1A) of the Mines & Minerals (Development
& Regulation) Act is a non-cognizable offence. The result is that the Police
cannot register any crime based on the information lodged, conduct
investigation and file report under Section 173 of the Cr.PC. If the offence is
committed in the presence of the Police, the Officer concerned can file a
complaint before the court concerned. If the offender agrees, the offence can
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be compounded also. In this case, the case of the respondents is that the
detenu pleaded guilty before the Police Officer and the Police Officer imposed
a fine on him. The above pleading should be understood as a case of detenu
agreeing to the compounding and the Police Officer concerned compounded
the offences and imposed a penalty, which was below Rs.25,000/-. The point
to be decided is whether such a compounding and imposition of penalty could
be treated as a case of finding the detenu guilty, as contemplated under the
first limb of Section 2(o). A person can be found guilty only by a competent
court. The said finding will be followed by the imposition of a sentence. The SI
of Police is not an authority competent to find a person guilty. In this case, the
substantive law applicable is the provisions of the Mines & Minerals
(Development & Regulation) Act, 1957 and the procedural law applicable is the
Cr.PC, as no provisions are provided under the Mines & Minerals
(Development & Regulation) Act,1957, concerning the trial of offenders. So, by
virtue of Section 4(2) of the Code of Criminal Procedure 1973, the procedural
law applicable to the trial of offences is the Cr.PC. No provision under the
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Mines & Minerals (Development & Regulation) Act, 1957 or the Cr.PC has
been brought to our notice, which makes the SI of Police, a “competent
authority” to find a person guilty of an offence. The first limb of Section 2(o) will
apply, if only a person is found guilty by a competent Court or by a competent
authority, at least once for an offence, dealt with under the definition of
“Goonda”. Though, the SI of Police concerned, is competent to compound the
offences under Section 4(1A), he is not authorised to find the detenu guilty for
the said offence. So, the compounding of the offences cannot be treated as
equivalent to a finding of guilt by the competent Court or authority, for the
purpose of Section 2(o). In the result, the petitioner’s son, the detenu cannot
be treated as a “Known-Goonda”, for the purpose of the provisions of the
Goonda Ordinance (Ordinance No.30 of 2007) and therefore, his detention is
void. It is declared so. The detenu shall be released forthwith.
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As it is unnecessary, we are not dealing with the other contentions
raised by the petitioner.
The Writ Petition is allowed as above.
K.BALAKRISHNAN NAIR,JUDGE
19.09.2007 T.R.RAMACHANDRAN NAIR, JUDGE
sta