IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 383 of 2009(S)
1. NISHA RAFEEK, AGED 25, W/O.RAFEEK,
... Petitioner
Vs
1. DISTRICT COLLECTOR (DISTRICT MAGISTRATE)
... Respondent
2. SUPERINTENDENT OF POLICE, KOTTAYAM.
3. ADDITIONAL CHIEF SECRETARY (HOME &
4. STATE OF KERALA REPRESENTED BY
For Petitioner :SRI.M.P.MADHAVANKUTTY
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :07/12/2009
O R D E R
R. BASANT &
M.C. HARI RANI, JJ.
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W.P.(Cri) No. 383 of 2009
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Dated this the 7th day of December, 2009
JUDGMENT
Basant,J.
The petitioner is the wife of the detenue by name Rafeek
@ Manal Rafeek. The husband of the petitioner – the said
Rafeek, is detained preventively as per Ext.P1 order of
detention dated 31/8/09 passed by the 1st respondent under
Sec.3 of the Kerala Anti-Social Activities (Prevention) Act, 2007
(hereinafter referred to as `the KAAPA’). The husband of the
petitioner was taken into custody in execution of the said order
on 1/9/09 and he continues in custody from that date.
2. He was taken into custody alleging that he is a
`known rowdy’ and that his detention is necessary to prevent
him from indulging in anti-social activities. He was involved in
W.P.(Cri) No. 383 of 2009 -: 2 :-
as many as six crimes, the details of which are shown below:
Sl.No. Crime No. Section of Stage of the
offences proceedings
691/05 448, 294(b) and Acquitted
1 427
86/06 451, 341, 323 & Charge Sheet filed
2 294(b)
3 283/07 435, 120B & 427 Charge Sheet filed
191/09 Police officer is
the complainant Charge Sheet filed
- 294(b) &
4 353
5 289/09 294(b) & 427 Charge Sheet field
6 295/09 435 Charge Sheet field
3. Before us, the learned counsel for the petitioner and the
learned Government Pleader have advanced their arguments.
The learned counsel for the petitioner assails the impugned
order on the following grounds.
(1) Cases 1 and 4 above are not cases which can be taken
into reckoning to decide whether the detenue is a known rowdy
or not.
(2) Mind was not applied by the detaining authority to the
above circumstances before passing the impugned order of
detention. There has been no proper application of mind on the
part of the detaining authority who failed to consider whether
the said cases 1 and 4 can be taken into reckoning to decide
whether the detenue is a known rowdy.
W.P.(Cri) No. 383 of 2009 -: 3 :-
(3) Cases 5 and 6 referred above essentially reveal the
disputes between the petitioner and his neighbour one Jameela
Beevi and the same should also not have been reckoned to
decide whether the detenue is a known rowdy.
(4) At any rate, the detention of the detenue is liable to be
interfered with as the representation of the detenue did not
receive the consideration which it is entitled to under law in view
of Art.22(5) of the Constitution and Sec.7(2) of the KAAPA.
4. The grounds: So far as case No.1 is concerned, it is
not disputed that the said case has already ended in acquittal. It
is accepted that long before Ext.P1 order of detention was
passed by the detaining authority, the said case had ended in
acquittal. So far as case No.4 is concerned, it is admitted and
accepted that a police officer is the complainant in that case. In
the light of Sec.2(p)(iii) of the KAAPA, such a case in which
proceedings were initiated on the basis of a complaint by a
police officer cannot be taken into reckoning to decide whether
the detenue is a known rowdy or not. The learned Government
Pleader fairly accepts that cases 1 and 4 will have to be
eschewed from consideration to decide whether the detenue is a
known rowdy or not.
5. That leaves us with only four cases i.e., case Nos.2, 3, 5
W.P.(Cri) No. 383 of 2009 -: 4 :-
and 6. According to the petitioner, case Nos.5 and 6 are also
liable to be eschewed while considering the question whether
the detenue is a known rowdy or not. He advances this
contention on the basis of the second proviso to Sec.2(p) which
reads as follows:
“Provided that any offence committed
by a person,–
(i) x x x x x x x x
(ii) by virtue of his involvement as a
neighbour or as a close relative of the
neighbour in an incident which occurred
due to a dispute between immediate
neighbours; or”
It is the case of the petitioner that cases 5 and 6 relate to the
disputes between the de facto complainant – one Jameela Beevi,
and the detenue who are neighbours. The detenue works at the
lorry stand. The Jameela Beevi has a shop near the lorry stand.
The 5th case arose out of a dispute between the two consequent
to the alleged failure of the said Jameela Beevi to provide a glass
for the detenue. Case No.6 is a sequel to that incident wherein
the detenue is alleged to have committed mischief by fire on
account of his animosity against the said Jameela Beevi which, in
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turn, arose from the earlier crime i.e., case No.5.
6. The learned counsel for the petitioner submits that
inasmuch as case Nos.5 and 6 are also liable to be eschewed
from consideration in view of the second proviso to Sec.2(p), the
detaining authority must have taken the view that there are only
two cases (case Nos.2 and 3 above) against the petitioner and
these two cases cannot by themselves bring him within the
sweep of the expression `known rowdy’. At least three cases are
required to bring the detenue within the sweep of the expression
`known rowdy’ in view of Sec.2(p)(iii) of the KAAPA.
7. The learned Government Pleader replies that by no
stretch of imagination can it be held that the detenue and the de
facto complainant Jameela Beevi are neighbours. According to
the learned Government Pleader, close residence is necessary to
bring two persons within the sweep of the expression
`neighbour’ and the `immediate neighbour’ in the second
proviso to Sec.2(p) which we have extracted above. The learned
counsel for the petitioner placing reliance on the dictionary –
general and legal, advances a contention that “a person or thing
that is near to another” can be held to be a neighbour
notwithstanding the fact that the two are not having their
residences adjacent to each other or close to each other. The
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learned counsel relies on the following passage in para-17 of the
decision in Anoop v. State of Kerala (2009 (4) KHC 551) to
contend that the expression `neighbour’ must receive a
reasonable and natural understanding. The second proviso to
Sec.2(p) cannot convey an invariable mandate that accused and
the victim/complainant must have their residences close to each
other. Even if a person has his place of business or residence
close to the place of business or residence of another, he can be
held to be a neighbour within the sweep of the expression
`neighbour’ and `immediate neighbour’ in the second proviso to
Sec.2(p), contends the learned counsel for the petitioner. The
learned Government Pleader, on the contrary, contends that
such a wide meaning given to the expression `neighbour’ and
`immediate neighbour’ would effectively stultify the purpose of
the legislation. All persons who may have their places of work
close to each other cannot be held to be neighbours for the
purpose of the second proviso to Sec.2(p), contends the learned
Government Pleader. The learned Government Pleader contends
that the nature of the dispute must be considered vis-a-vis the
disputants to decide whether such persons would fall within the
sweep of the expression `neighbour’ and the `immediate
neighbour’ and the second proviso to Sec.2(p) would be
W.P.(Cri) No. 383 of 2009 -: 7 :-
applicable. To satisfy the second proviso, the involvement must
be as a neighbour or close relative of the neighbour and the
incident must be an incident which had occurred due to a
dispute between the immediate neighbour. Not only should
they be neighbours, the dispute must be a dispute between
persons having such neghbourly relationship, contends the
learned Government Pleader.
8. We are really not called upon to consider in this case
whether the petitioner and the de facto complainant would be
neighbours. The precise grievance raised by the petitioner is
that his contentions that he is a neighbour and the second
proviso to Sec.2(p) would apply have not been considered either
by the detaining authority or by the Government when Ext.P4
representation was submitted by the detenue to the Government
and the same was rejected by the Government under Ext.P5
order.
9. We have considered the second proviso to Sec.2(p). We
take it that the anxiety of the legislature to distinguish between
the acts which endanger public order as against acts which
merely affect law and order is reflected in the provisos to Sec.2
(p). It is by now well settled that the powers of preventive
detention can be invoked to successfully avoid threat to the
W.P.(Cri) No. 383 of 2009 -: 8 :-
public order. Mere threats to law and order must be dealt with
in accordance with the provisions of ordinary laws whereas a
threat to public order can justify invocation of the draconian
powers to preventively detain a person. In each case, we are
satisfied that it will have to be considered closely and carefully
by the detaining authorities and the other authorities as to
whether the acts complained of pose a threat merely to law and
order or they really amount to a threat to public order. It is
with this transparent purpose that even in the definition of a
known rowdy certain types of offences are excluded by the
legislature. The dispute between immediate neighbbours or
close relatives of the neighbours which occur between them in
their position or status as neighbours have been excluded by the
legislature in the definition of Sec.2(p) of the KAAPA. That to us
is the underlying and dominant purpose of the provisos to Sec.
2(p). We need only mention that the question whether the case
concerned would stand excluded by the second proviso to Sec.2
(p) has got to be considered carefully in each case by the
detaining and the other authorities.
10. The learned Government Pleader submits that in this
case the detaining authority in Ext.P1 has considered the
question pointedly in Ext.P1. Ext.P1 was passed at a time when
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the detenue had no opportunity to make a representation. In (iii)
of paragraph 1 of Ext.P1 it is true that the 1st respondent has
stated thus:
“The offence committed by him are against the
public and; not as a member of the family or a close
relative of the family, not as neighbours or close
relative of the neighbours, not as an employee of any
establishment, not as a member of the student
community and not as a member of a recognized
political party.”
11. The learned Government Pleader submits that this is
not a case where the detaining authority had not considered this
question pointedly.
12. The learned counsel for the petitioner immediately
counters this submission by pointing out that that was only a
ritualistic repetition of the statutory provisions in the proviso to
Section 2(p) and do not at all reveal pointed application of mind.
The learned counsel for the petitioner submits that the question
whether the petitioner and the said Jameela Beevi are
neighbours or the dispute is one between immediate neighbours
was not considered by the detaining authority in Ext.P1. At any
rate, the order does not reveal application of mind pointedly on
that question, contends the learned counsel for the petitioner.
13. The learned counsel for the petitioner further submits
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that, at any rate, whether cases (1) and (4) can be reckoned to
decide whether the detenue is a known rowdy was not
considered at all by the detaining authority and all these
cumulatively reveal want of due application of mind by the
detaining authority.
14. The learned Government Pleader submits that in view
of Section 7(4) of the KAAPA even assuming that the detaining
authority had not considered the question whether cases 1 and 4
can be taken into reckoning to decide whether the detenue is a
known rowdy, the other four cases would show sufficiently that
he falls within the sweep of the definition of known rowdy under
Section 2(p) and therefore the fact that cases 1 and 4 will
admittedly have to be excluded cannot be regarded as sufficient
to invalidate the order of detention.
15. We are satisfied that atleast insofar as cases 1 and 4
are concerned, Ext.P1 reveals absence of pointed application of
mind. The fact that crime No.691/05 (i.e. case No.1) had ended
in acquittal on 31/3/2009 is not now disputed by the
respondents. Similarly the fact that case No.4 was initiated on
the basis of a complaint by a police officer and for that reason
cannot be taken into reckoning under Section 2(p) is also agreed
and accepted by the respondents. To those crucial aspects, it is
W.P.(Cri) No. 383 of 2009 -: 11 :-
very clear that mind has not been applied by the 1st respondent
in Ext.P1.
16. According to us, it is perhaps not necessary to take
any decision on the crucial question about the validity of
detention on the above grounds. What appeals to us more is the
contention that Ext.P4 representation which was made to the
Government by the detenu has not received the “real and proper
consideration” which it deserves under Article 22(5) of the
Constitution of India and Section 7(2) of the KAAPA as held in
the decision in Haradhan Saha v. State of West Bengal [1975
(3)SCC 198]. The Constitution Bench in that decision has clearly
held that representation made by a detenue is entitled to real
and proper consideration at the hands of the Government. The
learned counsel argues that such consideration has not been
received by Ext.P4 in Ext.P5.
17. It is not necessary for us to advert to the law in any
greater detail. In Shruthi v. State of Kerala [W.P(Crl) No.323
of 2009 dated 6th October 2009], this court had occasion to
consider this question. We have referred to the decision in
Haradhan Saha (Supra), Bhut Nath Mete v. State of West
Bengal [(1974) 1 SCC 645] and John Martin v. State of West
[(1975) 3 SCC 836] and have come to the conclusion that the
W.P.(Cri) No. 383 of 2009 -: 12 :-
irreducible minimum which any such representation is entitled
to is a “real and proper consideration”. The short question is
whether Ext.P5 reveals that Ext.P4 has received such
consideration.
18. The contentions which we have referred above –
namely cases 1 and 4 should not have been taken into reckoning
for the reason that the former has ended in acquittal and the
latter does not fall within Section 2(p)(iii) were raised
specifically in Ext.P4. Ext.P5 does not at all reveal that the said
contentions had received the consideration of the Government.
Similarly, we note that the contention has specifically been
raised in Ext.P4 that Jameela Beevi in cases 5 and 6 is the
immediate neighbour of the detenue and that hence the said
cases do not come within the purview of Section 2(p) of the
KAAPA. Ext.P5 reveals that such contention also has not
received the pointed attention and consideration of the
Government.
19. It is brought to our notice that Ext.P5 shows that a
Deputy Secretary has issued the said letter to the detenue. He is
not the one who had considered the representation. He is not
the one who is competent to consider the representation. A
contention is raised that Ext.P5 cannot be reckoned as an order
W.P.(Cri) No. 383 of 2009 -: 13 :-
communicating to the detenue the result/fate of his
representation Ext.P4.
20. In the facts of this case, we do not think it necessary
to go into that question in detail. It is trite that Article 22(5) of
the Constitution of India and Section 7(2) of the KAAPA clothe
the detenue not only with the fundamental right to make an
effective and expeditious representation; but also clothe him
with the fundamental right to have the said representation
considered expeditiously and properly by the authorities. They
include the fundamental right to be communicated with the
order after considering such representation. At the moment, we
have no material to decide whether Ext.P5 faithfully represents
the order passed by the Additional Chief Secretary who alone is
entitled under the Rules of business of the Government to
consider such representation and pass orders. In the absence of
better materials, we are unable to accept the contention that
Ext.P5 does not effectively communicate the fate of Ext.P4
representation submitted by the detenue. But we find merit in
the contention that Ext.P5, even assuming that it effectively
communicates to the detenue the fate of his representation
Ext.P4 does not reveal “real and proper consideration” which
such a representation is entitled to. We say this because the
W.P.(Cri) No. 383 of 2009 -: 14 :-
order does not at all reveal whether cases 1 and 4 deserve to be
taken into consideration. The order does not also show that the
objection relating to cases 5 and 6 on the basis of the 2nd proviso
to Section 2(p) have been considered at all by the Government.
21. It is well settled that the Government before it
disposes of the representation made by the detenue under
Article 22(5) of the Constitution of India and under Section 7(2)
of the KAAPA need not hear the detenue. It is also well settled
that the speaking/reasoned order need not be passed. But, at
any rate, such a representation is entitled to a “real and proper
consideration” as we have already held in Shruthi (Supra) on
the basis of the decision of the Constitution Bench in Haradhan
Saha (Supra) and later Benches in Bhut Nath and John Martin
(Supra).
Ext.P5 roughly translated reads as follows:
“Your representation (Ext.P4) has been
considered by the Additional Chief Secretary on
behalf of the Government. But it is found that you are
detained preventively as per the valid and legal
reasons. Moreover, the representation does not
reveal any reason to take a contra decision. The said
representation, it is regretfully informed, has been
rejected.”
22. The learned counsel for the petitioner is correct in his
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submission that this order can be the response to any petition
filed under Article 22(5) of the Constitution of India and under
Section 7(2) of the KAAPA by any detenu whatever be the facts
of the given case. This is a standard order which can be issued
in response to any representation whatever be the facts of a
given case. In the instant case, atleast the two particular
circumstances pointed out by the detenue – firstly that cases 1
and 4 should not be taken into reckoning for the reason that
former has ended in acquittal and the latter is not one that can
be taken into consideration under Section 2(p)(iii), a police
officer being the complainant and secondly that cases 5 and 6
stand excluded under the 2nd proviso to Section 2(p), the victim/
complainant and the detenue being neighbours which deserved
consideration have not been considered at all. At any rate, the
order does not convey that such contentions in the
representation have been considered.
23. We make it clear that we are not in this case
proceeding to decide whether the alleged detenue and the de
facto complainant in cases 5 and 6 are neighbours or immediate
neighbours; but the detention must fail for the simple reason
that the Government has not considered Ext.P4 representation in
which inter alia this contention is also raised.
W.P.(Cri) No. 383 of 2009 -: 16 :-
24. The above discussions lead us to the conclusion that
the detention of the detenue is liable to be interfered with for the
reason that there has been no proper order passed on Ext.P4
representation after giving the same “a real and proper
consideration” as demanded by the Constitutional stipulation,
the statutory provision as also the binding precedents. Ext.P5
does not reveal such consideration. The challenge succeeds.
25. In the result,
a) This writ petition is allowed.
b) The continued detention of the detenue Rafeek @
Manal Rafeek is set aside.
c) The detenu shall forthwith be released from custody if
his continued detention is not necessary in connection with any
other cases.
d) The Registry shall communicate the direction to the
Superintendent of the Central Prison, Thiruvananthapuram
forthwith.
Sd/-
R. BASANT
(Judge)
Sd/-
M.C. HARI RANI
(Judge)
Nan/ //true copy// P.S. to Judge
W.P.(Cri) No. 383 of 2009 -: 17 :-