IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 321 of 2009(S)
1. PRASEETHA, W/O. K. SYAMKUMAR,
... Petitioner
Vs
1. THE STATE OF KERALA, REP. BY ADDITIONAL
... Respondent
2. THE DISTRICT COLLECTOR & DISTRICT
3. THE CHAIRMAN, KERALA ANTI-SOCIEAL
4. THE DEPUTY COMMISSIONER OF POLICE
For Petitioner :SRI.M.RAJAGOPALAN NAIR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :16/09/2009
O R D E R
"CR"
R.BASANT & M.C.HARI RANI, JJ.
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W.P.(Crl.)No.321 OF 2009
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DATED THIS THE 16TH DAY OF SEPTEMBER, 2009
J U D G M E N T
Basant, J.
1) Does revocation of a detention order under
Section 10(4) fall within the sweep of Section
13(2) of the Kerala Anti Social Activities
(Prevention)Act (hereinafter referred to as the
‘KAAPA’)?
2) Does Section 13(2)(i) of the KAAPA override the
requirements of Section 3(1) of the KAAPA and
is it independent of the stipulations of Section
3(1) of the KAAPA ?
These are the questions of law coming up for consideration in this
writ petition.
2. The petitioner is the wife of the detenu by name
Syamkumar, who has been detained under Section 3(1) read
with Section 13(2) of the KAAPA. A synoptic resume of the
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events which led to the passing of the impugned order of
detention (i.e.Ext.P1) appears to be vital and necessary.
3. The detenu was involved in four criminal cases, the
details of which are given below:
Sl.No. Crime No. Police Date of Offences alleged
Station offence (inter alia)Crime Vanchiyoor U/s.323,324,341,308
No.203/04 Police & 34 IPC.1 Station 01/08/04 Crime Vanchiyoor 143,147,148,149,324, No.142/2002 Police 23/7/02 452,326&427of IPC. 2 . Station Crime Pettah U/s.324 & 34 IPC No.147/02 . Police 3 Station 11/10/02 Crime No. Pettah U/s.394 & 34 IPC 81/07 Police 4 Station 03/04/07On the basis of these four cases, the detenu was considered to
be a known rowdy and an order of detention dated 31-3-2008
was passed against the detenu under Section 3(1) of the KAAPA.
A copy of that order is not made available to the court. In
execution of the said order of detention, the detenu was arrested
on 19-6-2008 and he continues to be under detention. The said
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order of detention was approved under Section 3(3) of the
KAAPA. The said order of detention was challenged in W.P.(Crl.)
No.274/2008 before this Court. But when a reference was made
to the Advisory Board constituted under Section 8 of the KAAPA,
the Advisory Board reported that in its opinion no sufficient
cause is there for the detention of the detenu. Accordingly, by
order dated 22-8-2008 ( a copy of which is not produced), the
order of detention was revoked under Section 10(4) of the
KAAPA and the detenu was released. W.P.(Crl)No.274/2008 was,
in these circumstances, closed as infructuous as per judgment
dated 26-8-2008, a copy of which is produced as Ext.P5.
4. Subsequently, the detenu was involved in another crime,
i.e. Crime No.659/2008. The incident in that case occurred on
22.10.2008. The crime was registered; it was investigated; final
report was filed and the same was registered as C.P.No.52/2009
before the Magistrate concerned.
5. After the said investigation was completed, Exhibit P3
report dated 19.6.2009 (signed on 20.6.2009) was submitted by
the 4th respondent, Deputy Commissioner of Police,
W.P.(Crl.)No.321/09 -4-
Thriuvananthapuram City to the 2nd respondent, District
Magistrate under Section 3(1) of the KAAPA. On the basis of the
said report, the impugned order of detention, Ext.P1 was passed
on 30-6–2009. The alleged detenu was arrested and he
continues to be under detention from 18-7-2009. The order
under Section 3(1) of the KAAPA passed by the second
respondent has been approved by the Government under Section
3(3) of the KAAPA. The order under Section 10(4) has not yet
been passed, it is conceded.
6. Before us, the learned counsel for the petitioner
Sri.M.Rajagopalan Nair, assails the impugned order on the
following five grounds:
1) The detaining authority erred in assuming that
Section 13(2) of the KAAPA granted a power to
detain without strict compliance with the provisions
of Section 3 of the KAAPA.
2) Revocation under Section 10(4) cannot be
reckoned as revocation under Section 13(1) and
consequently it must be held that the provisions of
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Section 13(2) have no application to an order of
revocation under Section 10(4) of the KAAPA.
3) When revocation under Section 10(4) of the KAAPA
is consequent to the opinion of the Advisory Board,
no fresh order of detention can be passed relying
on the same grounds wholly or by placing reliance
on the same in part.
4) There has been no proper application of mind by
the detaining authority before passing Ext.P1
order.
5) Ext.P1 order is bad for the reason that copies of
relevant documents have not been furnished as
mandated by Section 7(2) of the KAAPA and Article
22(5) of the Constitution of India.
7. Ground No.1. It will be apposite straight away to take
note of the relevant statutory stipulations. Section 10(4) of the
KAAPA deals with revocation of an order of detention consequent
to the opinion of the Advisory Board. It reads as follows:
“10(4) In every case where the Advisory Board has
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reported that there is in its opinion sufficient cause
for the detention of a person, the Government may
confirm the detention order and continue the
detention of the person concerned for such period as
it thinks fit and in every case where the Advisory
Board has reported that there is in its opinion no
sufficient cause for the detention of a person
concerned, the Government shall revoke the
detention order and cause the person to be released
forthwith”. (emphasis supplied)
8. Section 13(1) of the KAAPA deals with the power to
revoke an order of detention and Section 13 (2) deals with the
circumstances under which revocation of an earlier order of
detention shall not bar issuance of another order of detention. It
reads as follows:
“13. Revocation of detention order,-
(1) A detention order may, at any time, be
revoked or modified by the Government.
(2) The revocation or expiry of detention order
W.P.(Crl.)No.321/09 -7-
shall not be a bar for the issuance of another
detention order under Section 3 against the
same person, if he continues to be a person
falling within the definition of known rowdy or
known goonda as given in Section 2(o) or
Section 2(p) and if, –
(i) after release, he is found to have, again involved
in an offence of the nature described in Section 2
(o) or Section 2(p) at least in one instance; or
(ii) the facts, which came to the notice of the
Government or the authorised officer after the
issuance of the earlier detention order, considered
along with previously known facts are sufficient to
cause a reasonable apprehension that he is likely
to indulge in or promote or abet anti-social
activities; or
(iii) the procedural errors or omissions, by reason of
which the first order was revoked, are rectified in
the procedure followed with regard to the
W.P.(Crl.)No.321/09 -8-
subsequent order, even if the subsequent order is
based on the very same facts as the first order.”
9. The learned counsel for the petitioner contends first of
all that the sponsoring and detaining authorities appear to have
misread of Section 13(2) of the KAAPA, to erroneously assume
that Section 13(2) gives a fresh ground of detention not
contemplated by Section 3(1) of the KAAPA. The learned counsel
submits that Section 13(2) does not confer any powers in
addition to Section 3 of the KAAPA, but only clarifies the
circumstances under which the power to pass a fresh order of
detention under Section 3 of the KAAPA would remain unaffected
even when an earlier order of detention is revoked or the period
of detention expires.
10. We find it easy to accept this contention of the learned
counsel for the petitioner. An order of detention can be passed
only under Section 3 of the KAAPA. To pass such an order of
detention, the detaining authority must entertain the twin
satisfactions contemplated in Section 3(1) of the KAAPA. The
person against whom the order has been passed must be a
W.P.(Crl.)No.321/09 -9-
known goonda or known rowdy. This is referred to as the
threshold satisfaction or the initial objective satisfaction. Once
that threshold objective satisfaction is entertained, a further
satisfaction will have to be entertained that it is necessary to
detain the detenu to prevent him from committing anti-social
activities. This is the latter subjective satisfaction. We are
unable to agree that Section 13 of the KAAPA stipulates any
different requirements to justify an order of detention under
Section 3 of the KAAPA. Section 13(2) only deals with the
situation where revocation of an order of detention or expiry of
the period of detention thereunder will not affect the powers of
the detaining authority to pass a fresh order under Section 3(1)
of the KAAPA. Section 13(2) of the KAAPA does not prescribe
any different standards for passing an order of detention.
According to us, Section 13(2) only stipulates that powers under
Section 3 of the KAAPA can be invoked and exercised even when
there is revocation of an earlier order of detention under Section
13 of the KAAPA or expiry of the period of detention under an
earlier order. Ordinarily and normally revocation of an order of
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detention must be held to make it impermissible to pass a fresh
order of detention on the same grounds. Section 13(2) only
clarifies that notwithstanding the fact that an order of revocation
was passed earlier or the fact that the period of detention under
an earlier order of detention has expired, a subsequent order of
detention under Section 3 of the KAAPA can be passed if the
stipulations of Section 13(2) of the KAAPA are satisfied. Section
13(2) does therefore only lift (subject to conditions) the bar
against passing a fresh order of detention when an earlier order
of detention has been revoked under Section 13(1) or when the
period of detention under an earlier order has expired.
11. In fact it must be noted very carefully that an order of
detention can be passed only if the requirements of Section 3 of
the KAAPA are satisfied at the time of passing the order. But,
when an order of revocation under Section 13 of the KAAPA is
already passed, such powers under Section 3 of the KAAPA can
be invoked only if the requirements of Section 13(2) are also
satisfied. Merely because an order of revocation is passed under
Section 13(1) of the KAAPA, no new grounds of detention are
W.P.(Crl.)No.321/09 -11-
granted under Section 13(2). The detaining authority must still
be satisfied about the existence of the twin grounds of
satisfaction under Section 3. There is an additional requirement
when there is a revocation of an earlier order of detention, that
Section 13(2) must also be satisfied before such fresh order of
detention is passed.
12. This position of law is not seriously disputed. The
learned ADGP only contends that all requirements of Section 3
have been satisfied before passing the order of detention. In
addition, the requirements of Section 13(2) are also satisfied in
the instant case, contends the learned ADGP. The learned ADGP
further argues that it cannot be contended that in view of the
earlier order of revocation dated 22.8.2008 no further order
under Section 3 of the KAAPA can at all be passed. We agree
with the learned ADGP. We shall later go into the question
whether the requisite latter subjective satisfaction is properly
entertained before passing the order under Section 3 of the
KAAPA or not.
13. The learned ADGP contends that in a case where the
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order has been revoked under Section 13(1), in cases falling
under clause (i) of Section 13(2) involvement in an offence of the
nature described under Section 2(o) or 2(p) of the KAAPA at least
in one subsequent instance is ipso facto sufficient to induce the
latter subjective satisfaction. We are unable to agree with the
learned ADGP on this aspect. A satisfaction under Section 3 of
the KAAPA in all its rigour must be entertained – i.e., both the
initial objective satisfaction as well as the latter subjective
satisfaction, before an order of detention is passed under Section
3. Section 13(2)(i) cannot be held to dispense with or substitute
the requirement of the latter subjective satisfaction under Section
3. The challenge on the first ground is so answered in favour of
the detenu.
14. Ground No.2: The learned counsel for the petitioner
contends that revocation under Section 10(4) of the KAAPA is
totally different in nature, content and quality to the revocation
under Section 13(1). According to the learned counsel, Section
13(1) speaks of voluntary revocations by the Government on its
own. This may happen in cases falling under clauses (ii) and (iii)
W.P.(Crl.)No.321/09 -13-
of Section 13(2). The Government may on its own revoke an
order of detention on any appropriate ground. On the realisation
that there was really no sufficient ground or on the satisfaction
that that there has been procedural inadequacies or on any other
appropriate ground the Government may on its own revoke an
order of detention before the period of detention has expired.
Basically, Section 13(1) postulates voluntary revocations by the
Government in its discretion and not obligatory or mandatory
revocations under Section 10(4) of the Act, contends counsel.
15. We find considerable force in this contention of the
learned counsel for the petitioner. Though, the expression
employed in Sections 10(4), 13(1) and 13(2) is all “revocation”,
it would be idle to assume that revocation under Section 10(4)
would fall within the sweep of the expression “revocation” either
under Section 13(1) or under Section 13(2). The scheme of the
KAAPA read in the light of Article 22 reveals that Advisory Board’s
opinion must be taken in all cases of detention. If the Advisory
Board reports that there is sufficient cause for the detention of a
person, the Government under Section 10(4)of the KAAPA has
W.P.(Crl.)No.321/09 -14-
the discretion to pass an order of confirmation or not. But, in a
case where the Advisory Board reports that in its opinion no
sufficient cause is there for the detention of a person, the
Government is bound to revoke the order of detention. That is
revocation different in quality, content and nature than the
voluntary revocation under Section 13 of the KAAPA . Under
Section 10(4), though called revocation, it virtually amounts to
setting aside of the order of detention by an Advisory Board
constituted under Section 8 of the KAAPA read with Article 22 of
the Constitution. The Advisory Board has to consider the
materials and render a decision as to whether there is sufficient
cause to justify the detention. That decision has to be conveyed
to the Government as the opinion of the Advisory Board. When a
negative opinion is given by the Advisory Board, the Government
has no discretion whatsoever and Section 10(4) mandates that
the Government shall revoke the order of detention.
16. We have no hesitation to agree that the revocation
contemplated under Sections 13(1) and (2) does not include the
revocation under Section 10(4) of the KAAPA. We are supported
W.P.(Crl.)No.321/09 -15-
in this conclusion by the decision of the Bombay High Court in
Amritlal Shah v. State of Maharashtra (1986 Cri.L.J.1587)
DB. The following observations in that decision in paragraphs
14, 16 and 18 are of relevance. Their Lordships were considering
identical provisions of the COFEPOSA in Section 8(f) and Section
11(2).
“14. Mr.Gumaste contended that since there are no
words of limitation in sub-sec.(2) of S.11 of the
COFEPOSA Act even in cases where the
Advisory Board has given its opinion in favour
of the detenu, a fresh order of detention can
still be passed. We are unable to agree that a
fresh order of detention can be passed if the
order of revocation is made under the duty cast
upon the appropriate Government under S.8(f)
of the COFEPOSA Act. The said provision states
that “………in every case where the Advisory
Board has reported that there is in its opinion
no sufficient cause for the detention of the
W.P.(Crl.)No.321/09 -16-
person concerned, the appropriate Government
shall revoke the detention order and cause the
person to be released forthwith.” The order of
revocation which is passed under S.8(f) is an
order which the appropriate Government is
obliged to pass. There is no alternative to the
revocation of the detention order. If the
appropriate Government does not discharge its
duty under S.8(f), a further writ can be issued
to it for discharging its duty.
16. But, however, the question still remains as to
whether a fresh order of detention can be
passed against the same detenu. In our
opinion, to hold that this can be done is to set
at naught the provisions contained in Art.22(4)
of the Constitution. If a person is required to
be released consequent to a report of the
Advisory Board which is adverse to the order of
detention, we do not see how the same person
W.P.(Crl.)No.321/09 -17-
can be detained again unless there are fresh
grounds for his detention. Such fresh orders of
detention will set at naught the protection
which is afforded to citizens by insisting that no
order of detention can enure beyond a period of
three months if such detention has not been
approved by the Advisory Board.
18. …….. …….. In our opinion, therefore,
considering these aspects of Art.22(4) of the
Constitution and the effect of the report made
by an Advisory Board and of the opinion
expressed by it as provided for, in keeping with
the requirement of Art.22(4) of the
Constitution, in the different laws of preventive
detention, no order of detention can be passed
against a detenu who has been released under
S.8(f) of the COFEPOSA Act unless there are
fresh grounds for his detention.”
(emphasis supplied)
W.P.(Crl.)No.321/09 -18-
17. A question had arisen before the Supreme Court
in Ibrahim Bachu Bafan v. State of Gujarat (AIR 1985 SC
697) as to whether setting aside of an order of detention by the
High Court or the Supreme Court in exercise of their powers
under Articles 226 and 32 of the Constitution of India can be held
to amount to revocation. It has clearly been held that setting
aside of an order by superior constitutional courts in exercise of
their power of judicial review cannot be held to amount to
revocation -i.e., voluntary revocation under Section 11 of the
COFEPOSA. Similar is the provision in Section 13 of the KAAPA.
There is no contention before us that setting aside of an order of
detention by superior constitutional courts would attract Section
13(2). By the reason and logic of the decision in Ibrahim
Bachu Bafan it has got to be held that a distinction must be
drawn between obligatory revocation under Section 10(4) of the
KAAPA and voluntary revocations under Section 13(1).
18. Involuntary, obligatory and mandatory revocation
under Section 10(4) cannot according to us, at any rate, be
equated to the voluntary and discretionary revocation by the
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Government under Section 13. We have no hesitation, in these
circumstances, to agree with the learned counsel for the
petitioner that revocation of an order of detention under Section
10(4) cannot fall within the sweep of Section 13(1) or (2).
Ground No.2 is answered in favour of the petitioner.
19. Ground No.3: An interesting question arises as to
whether any further order of detention can be passed under
Section 3 of the Act when the order is revoked under Section 10
(4) on the basis of the opinion of the Advisory Board. Here
again, the decision in Ibrahim Bachu Bafan (supra) indicates
the position of law, though that decision dealt not with revocation
under Section 10(4) of the KAAPA (analogous provision Section 8
(f) of the COFEPOSA). The decision in Ibrahim Bachu Bafan
(supra) as also the decision Chhagan Bhagwan Kahar v.
N.J.Kalna (1989 (2) SCC 318) are authorities of the
proposition that when an order of detention is quashed by the
court by issuing a high prerogative writ, the facts/ grounds on
the basis of which such an order of detention is passed should not
be taken into consideration either as a whole or in part, even
W.P.(Crl.)No.321/09 -20-
along with fresh grounds of detention for drawing the requisite
subjective satisfaction to pass a fresh order. The Hon’ble
Supreme Court observed thus in paragraph 12:
“12. It emerges from the above authoritative judicial
pronouncements that even if the order of
detention comes to an end either by revocation
or by expiry of the period of detention there
must be fresh facts for passing a subsequent
order. A fortiori when a detention order is
quashed by the court issuing a high prerogative
writ like habeas corpus or certiorari the grounds
of the said order should not be taken into
consideration either as a whole or in part even
along with the fresh grounds of detention for
drawing the requisite subjective satisfaction to
pass a fresh order because once the court strikes
down an earlier order by issuing rule it nullifies
the entire order.” (emphasis supplied)
20. There can hence be no dispute that on the same
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grounds a fresh order of detention cannot be passed when the
constitutional courts in exercise of their powers to issue writs
have quashed an order of detention. By the same principle, we
are of the view that grounds relied on in the orders revoked on
the basis of the opinion of the Advisory Board cannot also be
reckoned as grounds for passing a fresh order of detention. Not
doing so would be disservice to the mandate of Article 22(4) of
the Constitution of India.
21. But, in this case, we are not really concerned with that
situation. Order of detention is not sought to be passed on the
same grounds or the same circumstances. The order of detention
is sought to be passed on the basis of the further circumstance
that has emerged against the detenu in this case, i.e.,
registration of Crime No.659/08 and the filing of the final report
which gave rise to C.P.No.52/09. We are in agreement with the
learned counsel for the petitioner that when revocation is under
Section 10(4), the grounds of detention relied on in the order
revoked cannot constitute valid grounds to justify passing of a
fresh order of detention under Section 3. To take any different
W.P.(Crl.)No.321/09 -22-
view would be to defeat the mandate of Article 22(4) of the
Constitution of India. But, if there are fresh grounds justifying
the passing of a fresh order of detention, the mere fact that there
was revocation under Section 10(4) of an earlier order of
detention cannot offer any immunity against detention under
Section 3. The question then will be whether a fresh order of
detention can be justified on the fresh grounds that have been
relied on. We need only state that a fresh order of detention on
fresh grounds is perfectly possible even when the earlier order is
revoked under Section 10(4) of the KAAPA.
22. A question arises about Section 13(2)(i) of the KAAPA.
Section 13(1) deals with revocation or modification of an order of
detention by Government. But, Section 13(2) deals not merely
with revocation, but it deals with expiry of an order of detention
also. If an order of detention has been passed and the period of
the said order of detention has expired under Section 12 (or by
expiry of the period specified in the order of detention), a fresh
order of detention on the same grounds cannot be justified. But,
a further fact- involvement in an offence of the nature specified
W.P.(Crl.)No.321/09 -23-
under Section 13(2)(i) would lift the bar against passing a fresh
order of detention. But, even then, Section 13(2)(i) can help
only to lift the embargo against passing a fresh order of detention
and cannot substitute or dispense with the requirements under
Section 3 – of both the initial objective satisfaction as well as the
latter subjective satisfaction. To understand this , it must be
noted that Section 13(1) deals with revocation or modification
whereas Section 13(2) deals not only with such revocation or
modification, but also with the expiry of the period of detention
stipulated under the order of detention. The challenge raised on
the 3rd ground does in these circumstances succeed.
23. Ground No.4: The learned counsel for the petitioner
contends that there has been no proper application of mind by
the detaining authority as expected of him under Section 3 of the
Act. The learned ADGP contends that inasmuch as the impugned
order is not passed on the basis of the grounds relied on in the
earlier order revoked under Section 10(4) and has been passed
on the basis of a subsequent circumstance that has arisen, the
order of detention is perfectly valid if both the satisfactions
W.P.(Crl.)No.321/09 -24-
contemplated under the Section are shown to be validly
entertained by the detaining authority. In this context, the
learned ADGP relies on the fact that the alleged detenu continues
to be a ‘known rowdy’ taking into account the fifth case – Crime
No.659/08 of Fort Police Station, Thiruvananthapuram in which
the final report has been filed and case registered as
C.P.No.52/09.
24. We are in ready agreement with the learned ADGP
that if the detenu continues to be a ‘known goonda’ or ‘known
rowdy’ under Section 3 of the KAAPA and his detention is found
to be necessary on the basis of the further contumacious acts
committed by him, certainly a fresh order under Section 3 can be
passed notwithstanding the revocation of the earlier order under
Section 10(4). Therefore, the challenge on this ground is only
whether there has been proper application of mind to come to
both the satisfactions under Section 3.
25. The five cases referred above confirm that the alleged
detenu continues to be a ‘known rowdy’ as defined under Section
2(p) of the KAAPA. The former objective satisfaction can
W.P.(Crl.)No.321/09 -25-
therefore be entertained if the existence of the five cases is
considered by the detaining authority and he entertains the
requisite satisfaction on the basis of such consideration. The
learned counsel for the petitioner contends that before the
detaining authority, no materials whatsoever relating to the
previous cases were placed and in these circumstances, the
detaining authority has not applied his mind properly to the
question whether the alleged detenu is a ‘known rowdy’ or not.
26. The learned counsel for the petitioner further contends
that there has been significant non-application of mind and there
exists serious incongruity between the allegations raised in
Exhibit P4 final report submitted by the police and the statements
in Exhibit P1 order about the nature of the offence allegedly
committed by the detenu in Crime No.659/08. The learned
counsel points out that the allegation taken note of by the
detaining authority in Exhibit P1 is that the detenu had assaulted
the victim in Exhibit P4 with a stone and caused grievous injuries
to him on 22.10.2008. The learned counsel points out that
significantly, this is not the allegation in Exhibit P4 against the
W.P.(Crl.)No.321/09 -26-
detenu. In Exhibit P4, the only allegation against the detenu who
figures as the 2nd accused in that crime is only that he hit the
victim on his back and chest with hands. The learned counsel for
the petitioner contends that the allegation of hitting the victim
with a stone is raised in Exhibit P4 only against the first accused
in that crime and not against the detenu in this case. The
learned counsel argues that in not having precisely applied his
mind to the crucial allegation against the detenu in Exhibit P4 and
in having made different allegations against the detenu in Exhibit
P1, there is significant and total absence of application of mind
alertly by the detaining authority. This vitiates the order of
detention, contends the learned counsel for the petitioner. We
find force in that contention.
27. The learned counsel for the petitioner submits that the
order of detention which is supported by the grounds in Exhibit
P2 have been prepared without proper application of mind. In
this context, the learned counsel relies on the decision of the
Hon’ble Supreme Court in Rajesh Vashdev v. State of
Maharashtra 2006(1)KLT 408(SC) to contend that alert
W.P.(Crl.)No.321/09 -27-
application of mind is necessary not only when the order of
detention is prepared and passed, but also while preparing the
grounds for detention. The learned counsel builds up this
argument on the basis of the recital in Exhibit P2 that the order
of detention is passed to detain the detenu for a period of six
months. The learned counsel argues that if detention were
ordered under Exhibit P1 for a specified period of six months,
that would have offended the mandate of Anitha Bruse v. State
of Kerala (2008(2) KLT 857) and would have been set aside
for that reason itself. The learned counsel argues that Exhibit P2
grounds for detention which accompanied Exhibit P1 thus reveals
absence of application of mind. The impugned order is liable to
be set aside on this ground, contends the learned counsel. We
find force in this contention also. The nature of the allegations
narrated and taken cognizance of by the detaining authority in
Exhibit P1 does not rhyme well with the precise allegations raised
against the detenu in Exhibit P4 charge sheet.
28. The learned counsel for the petitioner further contends
that there has been a snapping of the nexus between the alleged
W.P.(Crl.)No.321/09 -28-
contumacious act committed on 22.10.2008 and the order of
detention passed on 30.6.2009. The learned counsel submits
that the live link between the alleged act and the order of
detention must be held to be snapped because of the elapse of a
period exceeding eight months from the date of the alleged act.
29. The learned counsel for the petitioner submits that the
detaining authority was conscious of this long gap of time
between the alleged contumacious act on 22.10.2008 and the
order of detention dated 30.6.2009. That gap of time was sought
to be explained by the detaining authority by a curious statement
that “it can be because of the apprehension of threats from him
and his associates to the victims and witnesses as reported by
the Deputy Commissioner of Police(Law and Order), Trivandrum
City.” The learned counsel for the petitioner submits that the
explanation offered for this long gap of time between 22.10.2008
and 30.6.2009 is not legally sufficient or satisfactory. The
learned counsel submits that it is non-existent as there is nothing
to indicate that any other incident had taken place and the
victims have refrained from complaining because of the
W.P.(Crl.)No.321/09 -29-
apprehension of threats from the detenu or his associates. The
explanation offered is a non-existent one. There are no materials
to support the said allegation which is pressed into service to
justify the gap of time between 22.10.2008 and 30.6.2009. The
learned counsel for the petitioner has taken us through Exhibit P3
report in detail to point out that there is no specific allegation
whatsoever that any incident had taken place after 22.10.2008
and before 30.6.2009 about which complaints were not made by
the alleged victims on account of such alleged fear against the
detenu or his associates.
30. For all these reasons, we are persuaded to agree that
there is merit in the contention that there has been no proper
application of mind by the detaining authority before passing the
impugned fresh order of detention. The challenge on this ground
thus succeeds.
31. Ground No.5: The learned counsel for the petitioner
finally contends that the impugned order is bad for the reason
that copies of relevant documents have not been furnished to the
detenu. First of all, it is contended that the detaining authority
W.P.(Crl.)No.321/09 -30-
erroneously assumed that the order is being passed in exercise of
the power to order detention available under section 13(2) of the
KAAPA. We have already considered this question while dealing
with Ground No.1. The detaining authority hence did not apply
his mind to the relevant documents relating to crime Nos.1 to 4
referred to in paragraph 2. This is evident from the further fact
that the documents relating to Crime Nos.203/04, 142/02,
147/02 and 81/07 were not relied on by the detaining authority
as relevant documents. In continuation of the same error, the
detaining authority has omitted to furnish to the detenu
documents relating to these crimes 1 to 4. Thus, it is contended
that the satisfaction that the petitioner is a ‘known rowdy’ has
been entertained by the detaining authority without perusing the
relevant documents. At any rate, a grievous error is committed
in not having furnished those documents to the detenu under
section 7(2). We note that no documents relating to any crime
other than the 5th crime, Crime No.659/08 had been furnished to
the detenu under section 7(2). We agree with the learned
counsel for the petitioner that this is a crucial and vital lapse on
W.P.(Crl.)No.321/09 -31-
the part of the detaining authority.
32. The learned counsel for the petitioner then contends
that even assuming that there is a power of detention under
section 13(2) different from Section 3, the previous order of
detention and the order of revocation of that detention must have
been relied on and copies must have been furnished to the
detenu. Admittedly, under section 7(2), the previous order of
detention dated 31.3.2008 or the order of revocation dated
22.8.2008 have not been furnished to the detenu. This again is
found by us amount to denial of the right to have the relevant
documents communicated under Article 22(5) of the Constitution
of India and under section 7(2) of the KAAPA.
33. The learned counsel for the petitioner then contends
that reliance is placed on the report of the Advisory Board. The
copy of the report has not been furnished. Of course, section 10
(3) of the KAAPA makes it clear that the report of the Advisory
Board is confidential except a limited portion of such report, i.e.,
the opinion. If the same cannot be furnished to the detenu,
evidently reliance cannot be placed on such report of the
W.P.(Crl.)No.321/09 -32-
Advisory Board. Moreover, in this case, we note that even the
non-confidential portion of the Advisory Report – or even the
order passed under section 10(4) in furtherance of such report
have not been furnished to the detenu. This again we find is a
crucial lapse.
34. A contention is raised that the Advisory Board has
given the opinion that a fresh order can be passed on the same
grounds. If as already held by us under Ground No.3, a fresh
order cannot be passed on the very same ground, after order of
revocation under section 10(4) is passed, observations contra
made by the Advisory Board are of no relevance. In this context,
we note that the Advisory Board’s report is not furnished at all
to the detenu and reliance placed on the observation of the
Advisory Board in the confidential opinion rendered by it cannot
be relied on to justify Exhibit P1 order. We find support for this
conclusion in the observations of the Division Bench of the
Bombay High Court in Amritlal Shah(supra). We extract
paragraph 18 below:
“18. That apart, if the appropriate Government
W.P.(Crl.)No.321/09 -33-
is free to take a fresh step in the direction of
detaining a person by its interpretation of the
opinion given by the Advisory Board, it will be a
great injustice to the citizen concerned. In
every law of preventive detention the report of
the Advisory Board is required to be
confidential. If the appropriate Government
decides to take a fresh action on the basis of its
own interpretation or reading of the report of
the Advisory Board, how is a citizen able to
challenge the action of the appropriate
Government? The contents of the report of the
Advisory Board are a closed book as far as the
citizen is concerned.”
35. On the basis of the above discussions, we uphold the
challenge raised against the impugned order under Ground No.5
also.
36. In the light of our findings under grounds 1 to 5, it
follows that the impugned order deserves to be set aside.
W.P.(Crl.)No.321/09 -34-
37. In the result:
(a) this Writ Petition is allowed.
(b) the impugned order of detention is set aside.
(c) If the detention of the detenu is not necessary in any
other case, he shall forthwith be released from custody by the
prison authorities.
(d) The Registry shall forthwith communicate the order to
the prison authorities.
R.BASANT, JUDGE.
M.C.HARI RANI, JUDGE.
dsn