IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 347 of 2010(S)
1. SHYLA,W/O.MUJEEB,EDATHARA VEEDU,
... Petitioner
Vs
1. STATE OF KERALA,REPRESENTED BY THE
... Respondent
2. THE DISTRICT COLLECTOR AND DISTRICT
3. THE SUPERINTENDENT OF POLICE,
4. THE CIRCLE INSPECTOR OF POLICE,
5. THE SUPERINTENDENT,CENTRAL PRISON,
For Petitioner :SRI.B.MOHANLAL
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice R.BASANT
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :27/10/2010
O R D E R
R. BASANT &
M.L. JOSEPH FRANCIS, JJ.
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W.P.(Crl.) No. 347 of 2010 S
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Dated this the 27th day of October, 2010
JUDGMENT
Basant, J.
The petitioner has come to this court with this petition for
issue of a writ of Habeas Corpus to direct the production and
release from custody of her husband, Mujeeb, (hereinafter
referred to as the detenue), who stands preventively detained as
per Ext.P1 order dt. 4.5.2010 passed under Section 3 of the
Kerala Anti-social Activities (Prdevention) Act, (hereinafter
referred to as KAAPA).
2. The order of detention is passed by the second
respondent, District Magistrate, on the basis of a report of the
Sponsoring Authority i.e. the third respondent, Superintendent of
Police. In execution of Ext.P1 order, the detenu was taken into
custody on 15.5.2010. The order of detention was approved by
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the Government under Section 3(3) by order dt. 26.5.2010. The order of
detention was later confirmed under Section 10(4) of the KAAPA vide
Ext.P2 order dt. 16.7.2010. The detenu continues in custody from
15.5.2010 and will have to remain in custody till 15.11.2010.
3. The detenu has been categorised as a ‘known rowdy’. According
to the Sponsoring/Detaining Authorities there are five cases registered
against him. The details of the five cases are given below.
Sl. Crime No. & Date of Offences State of cases Victim/defacto
No. Police Station offence alleged complainant
626/06 of Sasthamcotta 324 & 308 Acquitted the Shameer
Police Station IPC accused on
1 03/12/06 30.9.2010
19/08 of Sasthamcotta 294B, 308, Pending trial Arifa
Police Station 452, 427,
323, 354 r/w.
2 10/01/08 34 IPC
718/08of Sasthamcotta 341, 294B, Pending trial Ravindran
Police Station 323, 324 r/w.
3 01/12/08 34 IPC
729/09 of Sasthamcotta 21.10.2009 452, 427 and Pending trial Abdul Azeez
4 Police Station 323 IPC
160/10 of Sasthamcotta 341, 427 and Pending trial Shiju
5 Police Station 07/02/10 323 IPC
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The first case was pending trial. The order of acquittal was recorded in
that case on 30.9.2010 by the Sessions Court, Kollam after the order of
detention was passed.
4. Detailed arguments have been advanced by the learned counsel
for the petitioner and the learned Senior Government pleader. The
learned counsel for the petitioner assails the impugned order on the
following four grounds.
i) The latter subjective satisfaction under Section 3 of the KAAPA
has not been entertained after due application of mind.
ii) Case Sl. No.1 has resulted in acquittal subsequently and should
not hence be taken into reckoning now to decide whether the detenu is a
‘known rowdy’ under Section 2(p).
iii) Cases, Sl. Nos. 2, 4 and 5 must have been excluded from
consideration as they fall under the provisos (i) and (ii) of Section 2(p) of
the KAAPA.
iv) At any rate, the Detaining Authority must have noticed that all
the five cases relied on by the prosecution even if accepted in toto
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amount only to a threat to law and order and not to public order.
5. Ground No.(i): It is by now well settled that both the
initial/threshold objective satisfaction as also the latter subjective
satisfaction must be entertained by the Detaining Authority
simultaneously before an order of detention is passed under Section 3 of
the KAAPA. The twin satisfactions must be entertained after proper
application of mind to the materials available. Under this ground, it is
contended that, there has been no proper application of mind to decide
whether the latter subjective satisfaction can be legally entertained.
6. We have been taken through the order of detention as well as the
grounds of detention. Five cases are relied on by the prosecution. At the
time when the order was passed, final reports had been filed in all these
five cases after due investigation and the detenu was found to be guilty of
the offences alleged against him by the Investigating Police Officer on
investigation. The allegations relate to events/crimes committed within
the past seven years. Crimes were committed on dates shown in Col. 3 of
the tabular column referred to above i.e. 3.12.2006, 10.1.2008,
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1.12.2008, 21.10.2009 and 7.2.2010. A reading of the order of detention
and grounds of detention clearly show that the Detaining Authority
entertained the former/ threshold objective satisfaction on the basis of the
five cases referred above, which allegedly brings the detenu within the
sweep of the definition of ‘known rowdy’ in Section 2(p). Challenge
against that satisfaction shall be considered by us later.
7. The latter subjective satisfaction was entertained on the basis of
the very five cases, which are referred to in the tabular columns. A
reading of the order of detention and the grounds of detention clearly
show that the Detaining Authority applied his mind to the five cases
referred to in the tabular column and entertained the satisfaction that the
detenu deserves to be detained preventively.
8. We have no hesitation to agree with the learned counsel for the
petitioner that the mere fact that a person is a ‘known rowdy’ cannot
automatically entail an order of preventive detention under Section 3.
The threshold satisfaction must be entertained. Having entertained such
threshold satisfaction, the Detaining Authority must further consider
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whether the latter subjective satisfaction – as to whether detention of the
person is necessary to deter him from indulging in anti-social activities,
can be entertained or not. The order of detention and the grounds of
detention clearly show that mind was applied by the Detaining Authority
to this aspect of the matter. The law of preventive detention has often
been referred to as the jurisprudence of suspicion. A person is denied
liberty and freedom under the law of preventive detention not punitively
but because of the suspicion and assessment that he may abuse his
freedom and liberty to the detriment and peril of public order. It is on the
basis of judicious assessment and evaluation of his propensity to disturb
public order firmly founded on the past conduct of the individual, that the
decision to detain him must be taken. That subjective evaluation and
assessment is not appealable. It is not justiciable. But it must be on the
basis of definite material. Mind must be applied by the Detaining
Authority to such material before the decision to preventively detain the
detenu is taken. The very cases which induce the former objective
satisfaction under Section 3 of the KAAPA can validly induce the latter
W.P.(Crl.) No. 347 of 2010
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subjective satisfaction also provided live link and proximate nexus exist
between the past contumacious conduct and the need to detain. In this
case we find that such materials are there and the Detaining Authority, as
revealed from Ext,P1 and the Grounds of detention, had applied his mind
to the relevant aspects. We find no merit in the contention that there is
no indication revealed from Ext.P1 and the grounds of detention to
evidence proper application of mind and the entertainment of the latter
subjective satisfaction. The challenge raised on Ground No.1 must, in
these circumstances, fail.
9. Ground No.(ii): When the detenu was sponsored for detention
and when the impugned order was passed on 4.5.2010, case, Sl.No. 1 had
been charge sheeted and the same was pending trial. It is true that the
said case ended in acquittal after the order of detention was passed on
30.9.2010 while the detenu was undergoing detention. The learned
counsel for the petitioner submits that such case which ended in acquittal
cannot at all be taken into consideration now to justify either the former
objective satisfaction or the latter subjective satisfaction.
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10. The learned Government Pleader immediately counters this
contention by raising the plea that mere acquittal does not obliterate
case, Sl.No.1, relied on by the Sponsoring/Detaining Authority. The
reason for the subsequent acquittal is not revealed. If a known rowdy is
able to intimidate a victim, make his evidence unavailable to the court
and thus secures an order of acquittal subsequently that cannot lead
mechanically to the obliteration of that circumstance. More detailed
consideration of the nature of the acquittal is necessary at any rate submits
the learned Government Pleader. The learned Government Pleader
however submits that for the sake of arguments in this case, Sl.No.1 need
not be taken into consideration. The former objective satisfaction as well
as the latter subjective satisfaction has been entertained validly and those
satisfactions can be shown to be perfectly justified by cases, Sl.Nos. 2 to
5 shown in the tabular columns, submits the learned Government Pleader.
In these circumstances, we are not going into this ground in any greater
detail.
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11. Ground No.(iii): The learned counsel for the petitioner
contends that cases, Sl. Nos. 2, 4 and 5 must be eschewed from
consideration as they fall within provisos (i) and (ii) of Section 2(p).
According to the learned counsel for the petitioner, case Sl. No.2 and
Case Sl. No.5 relate to incidents between the detenu as a member of the
family of the victim and therefore the same must be eschewed from
consideration under proviso (i) of Section 2(p). It is his further
contention that cases Sl. Nos. 2 and 4 relate to incidents between the
victims, who are neighbours of the detenu and that such instances had
occurred only because of disputes between the immediate neighbours.
Hence on the play of provisos (i) and (ii) cases Sl.Nos. 2, 4 and 5 must be
excluded from consideration, contends the learned counsel for the
petitioner.
12. Learned Government Pleader points out that even accepting
the argument of the petitioner in full, case No.3 can be taken into
consideration. The learned Government Pleader submits that cases
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Sl. Nos. 2, 4 and 5 cannot be excluded or eschewed from consideration
by the play of provisos (i) and (ii) of Section 2(p).
13. For a proper understanding of the contentions, the two
provisos referred above, are extract below:
\ “Provided that any offence committed by a person:
(i) by virtue of his involvement as a member of the
family or a close relative of the family, in an incident which
took place by a reason of a family dispute or quarrel
involving family members of close relatives on either side; or
(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
(iii) xxxx
(iv) xxxx
(v) xxxx
(vi) xxxx
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shall be omitted from the computation of the number of
offences taken into account for deciding whether a person is a
known rowdy.”
(Only the .. relevant portion of S.2(p) is
extracted)
14. We shall take into consideration and discuss case No.2 first of
all. One Arifa is the complainant. The said Arifa, her daughter-in-law
and one Bhaskaran had suffered injuries in that incident. There is nothing
to indicate that any one of these three persons are closely related to or is a
neighbour of the detenu in this case. The counsel contends that there is a
statement in the FIS that the detenu herein, who is named as the accused,
is a person of the locality. That statement even if accepted as gospel truth,
cannot certainly bring the case within the sweep of the provisos (i) and/or
(ii) of Section 2(p) extracted above. Counsel contends that the address of
the said Arifa/defacto complainant would reveal that she also hails from
the same locality as that of the petitioner. This does not in any way
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indicate that the defacto complainant and the detenu are neighbours or
close relatives to attract provisos (i) and (ii) of Section 2(p).
15. We are now left with cases, Sl. Nos. 4 and 5. We have been
taken through the F.I. Statements and the final reports in these two cases.
One Abdul Azeez is the defacto complainant and the victim in case,
Sl.No.4, whereas one Shiju is the defacto complainant and victim in case,
Sl.No.5. There is absolutely no material either in the F.I. Statements or
in the final reports or in any connected documents to indicate or suggest
that those victims are close relatives or neighbours of the detenu. We
shall be referring to the details of these cases later when we take up the
challenge on Ground No.4. Suffice it to say now that there is not a
semblance of data which can persuade this court to conclude that the
incidents in cases Sl.Nos. 4 and 5 are between the detenu on the one hand
and his close relatives/immediate neighbours on the other to justify
exclusion of those cases by the play of provisos (i) and (ii) of Section 2
(p). The challenge on this ground cannot, in these circumstances,
succeed.
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16. It will not be inapposite to straight away to note that there is no
specific pleadings in the petition filed by the petitioner to suggest that
cases, Sl.Nos. 2, 4 and 5 are liable to be excluded from consideration
under Section 2(p) with the help of provisos (i) and (ii). The learned
Government Pleader has taken us through the pleadings in the petition in
detail. Significantly we do not find any specific assertion that Arifa,
Abdul Azeez or Shiju, the defacto complainants/victims in cases, Sl.Nos.
2, 4 and 5 are closely related to the detenu or are neighbours/immediate
neighbours of the detenu. We find merit in the submission of the learned
Government Pleader that in the total absence of even such a plea, the
respondents were not called upon to reply specifically to the present
contention, which is sprung on the respondents as a surprise. We take
note that this submission is factually correct.
17. The learned counsel for the petitioner submits that though such
a plea is not specifically raised in the petition filed by the petitioner, the
detenu in the representation made by him to the Government under
Article 22(5) of the Constitution/Section 7(2) of the KAAPA had raised
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this contention. We have accordingly been taken through the said
representation dt. 1.6.2010, which is not produced before Court, but
which is shown to us from the file of the learned Government Pleader.
The representation does not also contain a specific statement that any one
of the named defacto complainants, i.e. Arifa, Abdul Azeez or Shiju are
close relatives or close neighbours of the detenu. In paragraph 2 under
clauses (a) to (c) specific reference is made to the five cases. It is not
mentioned that in cases, Sl.Nos. 2, 4 and 5 the detenu and the victims are
close relatives or neighbours. So far as case Sl.No.2 is concerned, there is
a statement that the detenu and Arifa have monetary transactions between
them. What we intend to note is that the present plea based on application
of provisos (i) and (ii) is not specifically raised in paragraph 2 of that
representation also.
18. The learned counsel for the petitioner then contends that 10
points have been raised in that representation and in point Nos. 5 and 6
the present contention in its crux or soul is raised by the detenu. Under
point No.5 the only contention raised is that the disputes are personal and
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private. Under point No.6 it is of course contended that cases, Sl. Nos. 2
and 4 are between the detenu and his neighbours. It is significant to note
that a specific assertion that the defacto complainants/victims in cases
Sl.Nos. 2 and 4 are in any way closely related specifically to the detenu
or that they are his neighbours/immediate neighbours is not raised. At
any rate, it must be seen that the said contention has not been specifically
raised in this representation before Government filed by the petitioner.
There is also no material whatsoever produced even to remotely indicate
that the victims in cases, Sl.Nos. 2, 4 and 5 and the detenu are close
relatives or neighbours. The challenge raised on this ground must, in
these circumstances, fail.
19. Ground No. (iv): Lastly the learned counsel for the petitioner
contends that all the five cases even if relied upon do reveal only a threat
to law and order at worst and the incidents in those cases cannot at all be
said to be acts of threat to public order. In the absence of a threat to
public order the power under Section 3 cannot be invoked, argues the
learned counsel for the petitioner.
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20. For a proper consideration of this issue, we shall refer to the
cases enumerated in the tabular column given above. As already
observed, under ground (2) we are not adverting to case, Sl.No.1, which
has already ended in acquittal. We shall now proceed to consider the
nature of the allegations raised in cases, Sl.Nos. 2, 3, 4 and 5 for a
resolution of the question as to whether they pose a threat only to law and
order and not to public order.
21. In case, Sl.No.2 the specific allegation is that the detenu along
with others trespassed into the tea shop of the defacto complainant, Arifa,
which was being run by her with the assistance of her daughter-in-law.
They indulged in wanton acts of violence when money was demanded for
the edible articles consumed by the detenu and the co-accused at the
said shop. The detenu and others indulged in wanton acts of violence, it
is alleged. A customer of the tea shop – one Bhaskaran, who intervened to
prevent the crime and deter the detenu and others was also assaulted.
This is the precise allegation in case Sl.No.2.
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22. So far as case Sl.No. 3 is concerned, the allegation is that the
detenu, along with his co-accused, attacked one Ravindran, salesman of a
toddy shop. The provocation is also the demand by the salesman for
payment of the price of the articles consumed and the failure/refusal of
the detenu and others to pay the amount due to the toddy shop.
23. So far as the 4th crime is concerned, a similar allegation is
raised that the detenu had, armed with a dangerous weapon, indulged in
acts of violence and destruction in the shop of the defacto complainant,
Abdul Azeez. He had allegedly taken some edible articles kept in the
shop and when objection was raised against such conduct, he had
allegedly indulged in wanton acts of violence and destruction.
24. So far as case Sl.No.5 is concerned, the defacto complainant,
Shiju, had alleged that while he was proceeding on his motor cycle with
his wife as pillion, the detenu had overtaken him in a vehicle, had blocked
the further progress of the defacto complainant and had indulged in
wanton acts of mischief and violence against the said Shiju and his wife.
According to the defacto complainant, he did not even know who the
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detenu was and he was unable to explain why he had indulged in such
wanton acts of violence and mischief.
25. The contention raised is that the above allegations which are
confirmed in investigation and followed by the filing of charge sheets do
not amount to any threat to public order. At worst they amount only to
threat to law and order.
26. In Shruthi v. State of Kerala (2009 (4) KLT 893) this Court
had occasion to consider the various binding precedents to highlight the
distinction between a mere threat to law and order and a threat to
maintenance of public order. In paragraph 25 the position of law is
summed up in the following words:
“To sum up, the test is only whether the act is
confined to an individual without directly or indirectly
affecting the tempo of life of the community. If it affects
only the victim or victims, it can be reckoned as a threat to
law and order only; whereas if the nature and gravity
of the act is such th at it is likely to endanger public
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tranquility affecting the tempo of life of the community, it
would fall within the ambit of public order.”
27. Having anxiously considered the nature of the allegations
raised in the four cases referred above, we have not a semblance of doubt
that the test is answered positively against the detenu in the instant case.
The wanton acts of mischief and violence allegedly indulged in by the
detenu in the four cases referred above can by no stretch of imagination
be said to a mere threat to law and order and not a threat to maintenance
of public order. Anti-social activity is defined in Section 2(a) of KAAPA
and the nature of the acts complained of in the four cases fall squarely
within the sweep of the expression anti-social activity defined in Section
2(a) of the KAAPA. The challenge raised on this ground must also, in
these circumstances, fail.
28. No other contentions are raised. We are satisfied that this Writ
petition cannot, in these circumstances, succeed.
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29. In the result, this Writ petition is dismissed.
(R.BASANT)
Judge
(M.L. JOSEPH FRANCIS)
Judge
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