IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 425 of 2008(S)
1. SHOBA BABU, AGED 49 YEARS,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE DISTRICT COLLECTOR, ERNAKULAM.
3. THE DEPUTY POLICE COMMISSIONER, KOCHI.
4. THE CIRCLE INSPECTOR OF POLICE,
5. SRI.V.K.SUNIL JACOB, CURRENTLY THE
For Petitioner :SRI.K.RAMAKUMAR (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :27/01/2009
O R D E R
A. K. Basheer & Thomas P. Joseph, JJ.
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W.P (Cr.) No. 425 of 2008
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Dated this the 27th day of January, 2009.
Judgment
Basheer, J:
The short question that arises for consideration in this writ petition is
whether Ext.P1 order of detention issued by the District Collector,
Ernakulam under section 3(2) of the Kerala Anti Social Activities
(Prevention) Act, 2007 (the Act, for short) is legally sustainable and valid.
2. Petitioner is the mother of the detenu, Sri.Lenin who is a resident
of Perumpadappu within the limits of Palluruthy Police Station. Petitioner
contends that her son was taken into custody at about 6.45 p.m. on
November 14, 2008 by a Police Constable named Rajesh and two other
police men who can be identified. Sri. Lenin was taken in a blue Maruti
van initially to Palluruthy Police Station and later he was transferred to
Thoppumpady Police Station on the same night. Shortly after the arrest of
Sri. Lenin, petitioner submitted Ext.P2 complaint addressed to the Director
General of Police, Thiruvannathapuram with notice to the Minister for
Home and City Police Commissioner, Ernakulam On the next day morning
viz., November 15, 2008 petitioner preferred a petition under Section 97 of
the Code of Criminal Procedure before the District Magistrate, Ernakulam
(District Collector) praying for a direction to the Station House Officer,
WP(Cr).425/08 2
Palluruthy to search and produce Sri. Lenin before the court and set him at
liberty. Ext.P3 is stated to be the true copy of the said petition filed under
section 97 of the Code.
3. The specific case of the petitioner is that Ext.P1 order of detention
under section 3(2) of the Act was issued by the District Collector, the
Authorised Officer, some time late in the evening on November 15, 2008
and purportedly served on the detenu on that day. The detenu was also
served with the grounds for his detention, a copy of which is on record as
Ext.P4.
4. It is contended by the petitioner that the arrest and detention of her
son Sri. Lenin is ex facie illegal, vitiated and in violation of the rights
guaranteed under Articles 14, 19, 21 and 22 the Constitution of India.
Ext.P1 order was cooked up by the respondent in order to cover up the
illegal arrest and detention.
5. It is further contended that Ext.P1 order has been issued without
any application of mind, since the Deputy Police Commissioner is seen to
have submitted his report recommending detention of Sri. Lenin only on
November 15, 2008 and on the same day itself the Authorised Officer is
alleged to have issued Ext.P1 order. This will clearly show that there was no
WP(Cr).425/08 3
application of mind.
6. The other contention raised by the petitioner is that the detenu will
not come within the definition of “known rowdy” as defined under section
2(p) of the Act.
7. Separate counter affidavits have been filed by respondents 1, 2
and 5. A statement on behalf or respondent No.4 has also been filed by one
of his colleagues, Circle Inspector of Police, Mattancherry. These
respondents, while denying the allegations in the writ petition have
asserted that the order of detention was issued keeping in view the
antecedents of the detenu and his criminal track record.
8. Respondent No.2, the Authorised Officer, has also specifically
denied the allegation that the order of detention was passed without any
application of mind. It is further contended that detention has been ordered
based on valid grounds. According to respondent No.2, all the crimes
committed by the detenu along with his associates are acts of a hardened
criminal causing harm to the life and property of the public. The Police
report revealed that there was every possibility of his gang attacking a rival
gang. It is further asserted that the detenu is a “known rowdy” as defined in
Section 2(e)(iii) of the Act. The Authorised Officer has also stated that
WP(Cr).425/08 4
Ext.P1 order was passed after making a detailed and independent analysis of
the materials available on record by the Deputy Commissioner of Police.
The Authorised Officer has also denied the allegation that Ext.P1 order
was passed after filing of Ext.P3 application by the petitioner for issue of a
search warrant under Section 97 of the Code while the detenu was in illegal
detention and in order to avoid any legal action against erring Police
officers.
9. Respondent No.1 has stated in his counter affidavit that the
Government had approved the order of detention after a careful evaluation
of the entire documents received from the Authorised Officer. It is further
stated that the matter has been referred to the Advisory Committee for its
opinion as provided under section 9 of the Act.
10. In his counter affidavit, respondent No.5 who has been impleaded
in the writ petition in his personal capacity, has denied all the personal
allegations made against him. According to this respondent, the detenu
and his brother are rowdies operating in Perumpadappu area. While
referring to the various crimes registered against the detenu , it is contended
by this respondent that the detention of Sri.Lenin is absolutely necessary
for the safety of the public.
WP(Cr).425/08 5
11. As mentioned earlier, Ext.P1 order of detention has been
impugned by the petitioner on various grounds referred to above. The
primary contention urged by Sri.K.Ramkumar, learned senior counsel is that
Ext.P1 order was issued by the Authorised Officer in order to cover up the
illegal detention of Sri.Lenin since 6.45 p.m. on November 14, 2008. As
has been noticed already, the specific case of the petitioner is that Sri.Lenin
was taken into custody by Police Constable Rajesh and two other
identifiable constables. Sri.Lenin was taken in a blue Maruti van to
Palluruthy Police station. Thereafter he was shifted to Thoppumpady Police
station immediately, when petitioner had engaged a lawyer to help her to
find out the whereabouts of her son. It is further contended by the petitioner
that she had preferred Ext.P2 complaint before the Director General of
Police in the evening on the same day itself. On the next day morning she
filed a petition under section 97 of the Code. Thus it is the specific case of
the petitioner that her son was taken into custody by the Police at about 6.
45 p.m. on November, 2008 and Ext.P1 order of detention was allegedly
issued by the Authorised Officer only on the next day, and that too late in
the evening.
12. It is significant to note that none of the respondents in their
WP(Cr).425/08 6
respective counter affidavits has adverted to the above specific allegation.
It is true that respondent No.5 in his counter affidavit has stated that
Sri.Lenin was arrested by respondent No.4 at 6.30 p.m. on November 15,
2008 in connection with the crime registered under section 3 of the Act.
This respondent has further denied the allegation that the detenu was
illegally taken into custody on the previous day. There is no reference to the
blue Maruti van. Similarly nothing is stated as to whether a constable by
name Rajesh was on duty on that day in the Police station concerned . In
our view, this aspect assumes importance for various reasons.
13. There is yet another aspect of the matter. Respondent No.4, the
Circle Inspector of Police, Palluruthy Police station has not chosen to file a
counter affidavit in the case. However very belatedly on January 7, 2009
when hearing of the case had actually commenced, a “statement” was filed
on behalf of respondent No.4 by the Circle Inspector of Police,
Mattancherry stating that Sri.Lenin “was arrested by the Police only on
15/11/2008 and not on 14/11/2008.” The Officer who filed the statement
has mentioned that he is holding additional charge of respondent No.4
“now”. Admittedly, the then officer in charge is still in service. There is
no case for anybody that the then Circle Inspector, Palluruthy who was in
WP(Cr).425/08 7
charge of Palluruthy Police station had been transferred to any other
station. Nothing prevented the said officer in placing an affidavit on record.
More significantly, the Officer in charge of the Police station was bound to
explain as to whether Police Constable Rajesh was on duty on the crucial
date or not. In our view, the silence maintained by the respondents on this
crucial aspect looms large in the case.
14. The Additional Director General of Prosecution had made
available the relevant files both from the office of respondent No.1 and
respondent No.2 . In the file maintained by the office of respondent No.2, it
is seen that the relevant entry relating to this case appears at page No.81.
In the said entry reference is made to the report dated 15/11/2008 received
from the Deputy Commissioner of Police, Kochi City. The note put up by
the office before the Authorised Officer reads thus:
“Submitted
Ref: Report dt. 15.11.08 of the Dy.Commr. of
Police, Kochi city.
Please see the ref. cited. As per the ref., it
has been requested to issue detention orders
against Sri.Lenin, S/o.Appi Banu.
If agreed, draft detention order put up for
approval.
Sd/-
Dss. Sd/- JS(M) Sd/-ADM Sd/-DM.
15/11/08 15/11/08 16/11/08"
It is seen that the Authorised Officer, the District Magistrate, had put the
WP(Cr).425/08 8
signature only on November 16, 2008.
15. Significantly in Ext.P1 the Authorised Officer has not put any
date below the signature. On the left hand side, the figure 15 alone is put in
ink. It is true that the detenu has put his thumb impression and signature in
Ext.P1 order endorsing that the order has been read out and translated to
him in Malayalam and that he had received the copy. Below this
endorsement he has put the date as November 15, 2008. But it has to be
remembered that the detenue was under detention on that day.
16. More importantly, the specific case of the petitioner is that the
detenue had been illegally taken into custody on the previous day itself.
Therefore the date allegedly written by the detenu as 15/11/2008, under the
endorsement referred to above may not have much significance.
17. In this context it may also be noticed that petitioner had filed
Ext.P3 application under Section 97 of the Code on November 15, 2008.
Respondent No.2 has no case that Ext.P3 application was not received in the
office on that day. Further, the photocopy of the application produced from
the office of respondent No.2 also shows that some officer in that office had
put his initial and date on the instant day itself, though time of receipt of the
application is not indicated. It goes without saying that office of respondent
WP(Cr).425/08 9
No.2 would not have entertained such an application if it had been filed
after the office hours. We do not find any reason to assume that the
petitioner would have filed Ext.P3 application under Section 97 of the Code
anticipating her son’s arrest at about 6.30 p.m. on that day.
18. According to respondents 4 and 5, the detenu was admittedly
taken into custody only at 6.30 p.m. on November 15, 2008. This can be
seen from Annexure A arrest memo also, produced along with the
statement filed on behalf of respondent No.4 at the fag end of the hearing.
In the file produced by respondent No.2, there is an entry with regard to
Ext.P3 application at page 81. Significantly the order passed by respondent
No.2 on that petition reads only thus:
"Inform that person has been detained
under KAPPA"
The said order is seen to have been passed by respondent No.2 on
November 22, 2008. If in fact petitioner had filed Ext.P3 application even
before the arrest of her son, the said application ought to have been rejected
on the ground that it was premature. We have referred to this aspect only to
indicate that the stand taken by respondents 2 to 5 that the detenu was taken
into custody at 6.30 p.m. on November 15, 2008 cannot be believed.
WP(Cr).425/08 10
Keeping in view the material aspects referred to above, we are prima
facie satisfied that the contention raised by the petitioner as regards the
detention of her son even before issuing Ext.P1 order of detention is wholly
valid and tenable.
19. A question may arise as to whether Ext.P1 order can be declared
as illegal and invalid, assuming the detenu had been taken into custody even
before the said order had been issued. It may be argued that the detention
of the petitioner’s son under the Act had come into effect from the moment
the order had been executed. But respondents do not have a case that the
detenu was taken into custody and detained in connection with any other
case. Therefore since we have already found that the detenu had been
taken into custody in the evening of November 14, 2008 itself, it
necessarily follows that such detention, if proved to be true, cannot relate
to Ext.P1 order which was passed subsequently on the next day. Therefore
any legal validity or sanctity cannot be attached to Ext.P1 order, since in
the eye of law, an order of detention cannot be issued against a person who
has already been detained. An illegal detention cannot be legalised by
issuing a subsequent order. Personal liberty of a citizen as enshrined in
Article 21 of the Constitution is a very precious and valuable right which
WP(Cr).425/08 11
cannot be trampled upon through an arbitrary and high handed action. We
do not propose to deal with the above aspect any further for obvious
reasons.
20. We do not deem it necessary to consider the other contentions
raised by the petitioner with regard to the validity of the impugned order.
We leave those issues open, in view of the answer given by us on the
primary issue in the preceding paragraphs of this judgment.
For the foregoing reasons, we quash Ext.P1 order. Sri.Lenin, the
detenu shall be released from custody forthwith, if his detention is not
required in connection with any other case pending against him.
It is made clear that this order will not preclude the right of the
authorities concerned to issue appropriate fresh orders in exercise of the
powers under the Act, if situation so warrants.
The writ petition is allowed in the above terms.
A.K. BASHEER
Judge
Thomas P. Joseph
an. Judge.