{"id":12673,"date":"2008-10-07T00:00:00","date_gmt":"2008-10-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/elizebath-george-vs-state-of-kerala-on-7-october-2008"},"modified":"2018-07-12T04:44:16","modified_gmt":"2018-07-11T23:14:16","slug":"elizebath-george-vs-state-of-kerala-on-7-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/elizebath-george-vs-state-of-kerala-on-7-october-2008","title":{"rendered":"Elizebath George vs State Of Kerala on 7 October, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
Elizebath George vs State Of Kerala on 7 October, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(Crl.).No. 265 of 2008(S)\n\n\n1. ELIZEBATH GEORGE, AGED 80 YEARS,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA, REPRESENTED BY THE\n                       ...       Respondent\n\n2. THE DISTRICT MAGISTRATE AND\n\n3. THE SUPERINTENDENT OF CENTRAL PRISON,\n\n4. THE DISTRICT SUPERINTENDENT OF\n\n                For Petitioner  :SRI.M.G.KARTHIKEYAN\n\n                For Respondent  :GOVERNMENT PLEADER\n\nThe Hon'ble MR. Justice P.R.RAMAN\nThe Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR\n\n Dated :07\/10\/2008\n\n O R D E R\nWP.(Crl.)Nos.265,\n266 & 267\/2008                             -1-\n\n                                  P.R.Raman &\n                       T.R. Ramachandran Nair, JJ.\n                   - - - - - - - - - - - - - - - - - - - - - - - -\n                 W.P.(Crl.) Nos.265, 266 and 267 of 2008-S\n                     - - - - -- - - - - - - - - - - - - - - - - - - - -\n                  Dated this the 7th day of October, 2008.\n\n                                 JUDGMENT\n<\/pre>\n
Ramachandran Nair, J.\n<\/p>\n
      These writ petitions are filed seeking for the issuance of a writ of<\/p>\n
habeas corpus for the production of detenus, viz. Sri. Jojo George,<\/p>\n
Mujeeb Rahiman and Sheen Mondy Jose @ Saju; to release them and; to<\/p>\n
quash Ext.P1 order of detention. Since these writ petitioners raise common<\/p>\n
issues, they are heard together and are disposed of by a common judgment.<\/p>\n
      2.     We have heard the learned Senior Counsel Sri. C.C. Thomas on<\/p>\n
behalf of the petitioners and the learned Additional Director General of<\/p>\n
Prosecutions, Sri. K.K.Ravindranath on behalf of the respondents.<\/p>\n
      3.     The short facts leading to the disposal of the cases are the<\/p>\n
following:-\n<\/p>\n
      In W.P.(Crl) No.265\/2008, the detenu is one Jojo George; in W.P.<\/p>\n
(Crl) No.266\/2008, the detenu is one Mujeeb Rahiman and in W.P.(Crl)<\/p>\n
No.267\/2008, the detenu is one Sheen Mondy Jose @ Sabu. The orders of<\/p>\n
detention are dated 25\/06\/2008, passed by the District Magistrate and<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                        -2-<\/span><\/p>\n
District Collector, Palakkad.     They have been issued under the power<\/p>\n
conferred on the said Officer by the Kerala Anti-Social Activities<\/p>\n
(Prevention) Act, 2007, (hereinafter referred to as the ‘Act’). It is stated in<\/p>\n
the respective orders that the detenus are accused in Crime Nos.26\/2008,<\/p>\n
181\/2006 and 663\/2007 of various police stations. The sum and substance<\/p>\n
of the allegation is that the detenus are arrayed as accused in different cases<\/p>\n
registered as Crime Nos.26\/2008, 181\/2006, 263\/2006 and 663\/2007 for<\/p>\n
smuggling illegal spirit.     They have been aiding, abetting, conspiring,<\/p>\n
executing smuggling of spirit and distributing spirit in Kerala with scant<\/p>\n
respect to the law of the land . It is alleged that thus they have been<\/p>\n
indulging in activities of transporting and distribution of spirit in violation<\/p>\n
of the Abkari Act and are active members of an organised mafia involved in<\/p>\n
smuggling of spirit into Kerala from neighbouring States and are ‘Known<\/p>\n
Goondas under Section 2(c) of the Act.\n<\/p>\n
      4.     The learned Senior Counsel for the petitioners while attacking<\/p>\n
the orders of detention contended that the detenus will not come under the<\/p>\n
definition of “known goonda” as per Section 2(o)(ii) of the Act, since there<\/p>\n
is no seizure of alcohol\/spirit from the detenu in the presence of the<\/p>\n
witnesses. It is also contended that they cannot be termed as “known<\/p>\n
rowdy” under Section 2(p) of the Act also. It is contended that going by<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                        -3-<\/span><\/p>\n
Section 34 of the Abkari Act, only a person found committing an offence<\/p>\n
punishable under the said Act alone is liable to be arrested and if at all the<\/p>\n
allegations are correct, even then it is to be conceded that the detenus were<\/p>\n
not present at the time of seizure of spirit in the four cases relied upon by<\/p>\n
the respondents and there is also no evidence to show that the contraband<\/p>\n
seized were under the control\/possession of the detenus.         It is on this<\/p>\n
premise that the subjective satisfaction arrived at by the detaining authority<\/p>\n
is attacked. It is also contended by relying upon Exts.P4 to P9 orders<\/p>\n
passed by this Court and by the Sessions Court relating to the applications<\/p>\n
for bail, etc. of the respective detenus that it has been found therein that<\/p>\n
there are no materials to connect the accused with the crime. It is submitted<\/p>\n
that regular bail has been granted under Section 41A of the Abkari Act after<\/p>\n
hearing the prosecutor also. It is therefore contended that the detaining<\/p>\n
authority has not applied its mind to the findings rendered by the Sessions<\/p>\n
Court in those orders which have been passed after perusal of the case diary<\/p>\n
also. It is therefore submitted that as these are materials which ought to<\/p>\n
have been considered by the detaining authority, failure to consider the<\/p>\n
orders and the findings rendered by the Sessions Court in those orders will<\/p>\n
result in total non application of mind. It is therefore contended that there<\/p>\n
is nothing to connect the detenus with the crimes concerned and in these<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                         -4-<\/span><\/p>\n
cases as no charge-sheet has been filed,         no report could have been<\/p>\n
forwarded by the Police Officer concerned to the Superintendent of Police<\/p>\n
to the detaining authority to issue the orders of detention. Our attention was<\/p>\n
invited to the relevant provisions of the Act to contend for the position that<\/p>\n
in the absence of the final report by the Investigating Officer under Section<\/p>\n
173(2) of the Code of Criminal Procedure there could not have been any<\/p>\n
basis for the issuance of the order of detention. During the arguments, it is<\/p>\n
also pointed out that there is a violation of Section 7(2) of the Act as all the<\/p>\n
relevant materials on the basis of which the detention has been found<\/p>\n
necessary have not been communicated to the detenus.<\/p>\n
      5.     Per contra, the learned Additional Director General of<\/p>\n
Prosecutions submitted that the detenus in their representations have<\/p>\n
themselves produced the orders on the bail applications and hence the non<\/p>\n
supply of the same is not at all material. It is contended that herein there<\/p>\n
were cogent materials by way of confession statement of the driver and the<\/p>\n
confession of the accused\/detenus of their involvement in the respective<\/p>\n
cases and these materials would justify the orders of detention. It is also<\/p>\n
submitted that copies of relevant documents relied upon by the detaining<\/p>\n
authority have been supplied to the detenus and there is no violation of<\/p>\n
either Section 7(2) of the Act or compliance of natural justice as enjoined by<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                        -5-<\/span><\/p>\n
Article 22(5) of the Constitution of India and therefore, the action does not<\/p>\n
suffer from any infirmity. It was also submitted that as far as the provisions<\/p>\n
of the Act in question are concerned there need not be any final report by<\/p>\n
the Investigating Officer for enabling the Superintendent of Police to submit<\/p>\n
his report under Section 3(1) of the Act. It is pointed out that no less a<\/p>\n
person that the Superintendent of Police has been conferred with power<\/p>\n
under Section 3(1) of the Act to furnish information to the Government or<\/p>\n
the authorised officer to exercise the power to order detention.          The<\/p>\n
Superintendent of Police was satisfied himself about the materials<\/p>\n
forwarded by his subordinate Police Officer who has investigated the case<\/p>\n
which formed the basis of his report to the detaining authority. it is<\/p>\n
submitted that the confession statements of the driver before the police and<\/p>\n
of the detenus themselves were material in the sense that they will connect<\/p>\n
them to the commission of the crimes and, therefore, the orders of detention<\/p>\n
do not suffer from any infirmity. It is argued that a final report filed under<\/p>\n
Section 173(2) of the Code of Criminal Procedure is not required for<\/p>\n
satisfying the conditions to invoke the relevant provisions of the Act.<\/p>\n
      6.     Before going to the details of the arguments, we will extract<\/p>\n
herein Section 2(o) of the Act which defines ‘known goonda’ including the<\/p>\n
proviso and the explanation.\n<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                         -6-<\/span><\/p>\n
                    2(o)”known goonda” means a goonda who had<\/p>\n
             been, for acts done within the previous seven years as<\/p>\n
             calculated from the date of the order imposing any<\/p>\n
             restriction or detention under this Act,–\n<\/p>\n
                  (i)found guilty, by a competent Court or<\/p>\n
                     authority at least once for an offence within<\/p>\n
                     the meaning of the term ‘goonda’ as defined<\/p>\n
                     in clause (j) of Section 2; or<\/p>\n
                  (ii)found in any investigation or enquiry by a<\/p>\n
                     competent police officer, authority or<\/p>\n
                     competent Court on complaints initiated by<\/p>\n
                     persons other than police officers, in two<\/p>\n
                     separate instances not forming part of the<\/p>\n
                     same transaction, to have committed any<\/p>\n
                     act within the meaning of the term ‘goonda’<\/p>\n
                     as defined in clause(j) of Section 2:\n<\/p><\/blockquote>\n
              Provided that an offence in respect of which a report<\/p>\n
              was filed by a Police Officer before a lawful authority<\/p>\n
              consequent to the seizure, in the presence of witnesses,<\/p>\n
              of alcohol, spirit, counterfeit notes, sand, forest<\/p>\n
              produce, articles violating copyright, narcotic drugs,<\/p>\n
              psychotropic substances, or currency involved in<\/p>\n
              hawala racketeering may be included for consideration<\/p>\n
              though the report had resulted from an action initiated<\/p>\n
              by a police officer.\n<\/p>\n
              Explanation–An instance of an offence involving a<\/p>\n
              person, which satisfies the conditions specified in the<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                        -7-<\/span><\/p>\n
              definition of known rowdy referred to in clause (p) of<\/p>\n
              Section 2 can also be taken into consideration as an<\/p>\n
              instance, along with other cases, for deciding whether<\/p>\n
              the person is a known goonda or not.”\n<\/p>\n
      7.     The following decisions of the Apex Court have been relied<\/p>\n
upon by the learned counsel on either side in support of their arguments:<\/p>\n
        Sanjeev Kumar Aggarwal v. Union of India and others (AIR<\/a><\/p>\n
      1990 SC 1202), Kamarunnisa v. Union of India and another<\/p>\n
      (AIR 1991 SC 1640), Union of India v. Paul Manickam and<\/a><\/p>\n
      another (AIR 2003 SC 4622), State of T.N. and another v.<\/p>\n
      Kethiyan Perumal ((2004) 8 SCC 780), Senthamilselvi v. State of<\/p>\n
      T.N. And another ((2006) 5 SCC 676), Sunila Jain v. Union of<\/p>\n
      India<\/a> ((2006) 3 SCC 321), Usha Agarwal v. Union of India and<\/p>\n
      others<\/a> ((2007) 1 SCC 295), Adishwar Jain v. Union of India and<\/a><\/p>\n
      another ((2006) 11 SCC 339), M. Ahamedkutty v. Union of India<\/p>\n
      and<\/a> another ((1990) 2 SCC 1), Icchu Devi Choraria v. Union of<\/p>\n
      India and others<\/a> ((1980) 4 SCC 531), Mukesh Tikaji Bora v.<\/p>\n
      Union of India and others<\/a> ((2007) 9 SCC 28), Kartic Chandra<\/p>\n
      Guha v. The State of West Bengal (AIR<\/a> 1974 SC 2149),<\/p>\n
      Kamarunnissa v. Union of India and<\/a> another ((1991 SCC (Crl.)<\/p>\n<\/blockquote>\n
      88) and Smt. Poonam Lata v. M.L. Wadhawan and<\/a> another (AIR<\/p>\n
      1987 SC 2098).”<\/p><\/blockquote>\n
      8.     First we will consider the question as to the requirements of<\/p>\n
Section 2(o)(ii) of the Act. This is relevant to consider whether the detenus<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                        -8-<\/span><\/p>\n
satisfy the definition of “known goonda”. The section has two limbs, the<\/p>\n
proviso and its explanation. Sub Section (i) is not applicable here because<\/p>\n
the detenus have not been found guilty by any competent Court. To satisfy<\/p>\n
clause 2(o)(ii) “the detenu should be one who had been found in any<\/p>\n
investigation or enquiry by a competent police officer…………….. to have<\/p>\n
committed any act within the meaning of the term ‘goonda’ as defined in<\/p>\n
clause (j) of Section 2.”    To attract the proviso there should be a report<\/p>\n
filed by the Police Officer before a lawful authority in respect of an offence<\/p>\n
consequent to the seizure, in the presence of witnesses, of alcohol, spirit,<\/p>\n
etc.  If there is such a report, such an offence can also be included for<\/p>\n
consideration though the report had resulted from an action initiated by a<\/p>\n
Police Officer. Here, the argument raised by the learned Senior Counsel<\/p>\n
for the petitioners is that the seizure of alcohol, spirit, etc. should be from<\/p>\n
their possession, in the presence of witnesses and herein, as the seizure has<\/p>\n
not been effected from their possession in the presence of witnesses, the<\/p>\n
said proviso is not attracted. Further, reliance is placed on Section 34 of<\/p>\n
the Abkari Act. We are not impressed by the above argument. The proviso<\/p>\n
lays emphasis on the seizure of alcohol, spirit, etc. in the presence of<\/p>\n
witnesses and it is not conditioned that the alleged offender should be<\/p>\n
apprehended from the scene itself followed by seizure in the presence of<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                         -9-<\/span><\/p>\n
witnesses. In many cases either the driver or the person concerned may be<\/p>\n
escaping from the scene even before any seizure is effected and to insist<\/p>\n
that the seizure should be in the presence of such accused in all cases to<\/p>\n
attract the proviso, cannot be countenanced. What is provided is the report<\/p>\n
filed by a police officer before a lawful authority “consequent to the seizure<\/p>\n
in the presence of witnesses, of alcohol, spirit, etc.” That alone will satisfy<\/p>\n
the legal requirement to attract the proviso. Therefore, we reject the said<\/p>\n
argument raised on behalf of the petitioners.\n<\/p>\n
      9. Learned Senior Counsel for the petitioners relying upon Exts.P4 to<\/p>\n
P9, vehemently argued that in the light of the findings rendered by this court<\/p>\n
in Ext.P4 and by the Criminal courts concerned in Exts.P5 to P9, it is a case<\/p>\n
where there is no material to connect the accused with any of the crime<\/p>\n
alleged and thus there is total non- application of mind in passing the orders<\/p>\n
of detention. It is pointed out that the finding rendered by the Sessions<\/p>\n
Court in Ext.P6 and the other orders Exts.P7 to P9 will show that the court<\/p>\n
was of the view that there are no materials to connect the accused with the<\/p>\n
crime. It is pointed out that the said finding has been arrived at after<\/p>\n
perusing the case diary also. In para 9 of Ext.P6, while dismissing the Crl.<\/p>\n
Revision Petition filed by the State, it is observed by the Sessions Court that<\/p>\n
no material has been produced to prove the involvement of the accused<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                        -10-<\/span><\/p>\n
persons before the Magistrate or before that court even during the hearing of<\/p>\n
the revision petition. Our attention was also drawn to the observation by the<\/p>\n
Sessions Court that even though the driver of the vehicle involved in Crime<\/p>\n
NO.181\/2006 was arrested on the spot itself, the police has no case that any<\/p>\n
confession statement of the driver implicating the petitioners, was obtained.<\/p>\n
In paragraph 7 of Ext.P7 judgment, it is observed by the Sessions Court that<\/p>\n
the prosecution has not produced any material before the court to connect<\/p>\n
the accused with the crime. Reference therein is in respect of Crime<\/p>\n
No.26\/2008 of Valayar Police Station. Ultimately, it was observed that the<\/p>\n
case is of the year 2006 and till now the police has no case that the<\/p>\n
petitioners are involved in the case and accordingly they were granted bail<\/p>\n
on certain conditions. In para 8 also, there is a finding to the effect that<\/p>\n
“there is no material produced by the prosecution to prove that their<\/p>\n
continued detention in prison is essential for completing the investigation in<\/p>\n
the case.”    Thus, it is argued that there are no materials to connect the<\/p>\n
detenus with the crimes and the findings rendered by the competent<\/p>\n
criminal courts ought to have been considered by the detaining authority<\/p>\n
before passing the orders of detention. It is therefore submitted that there is<\/p>\n
no basis for the subjective satisfaction arrived at by the authority concerned.<\/p>\n
It is stated that the attempt by the authority concerned is malafide in the<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                         -11-<\/span><\/p>\n
sense that the order of detention has been passed to nullify the orders<\/p>\n
granting bail to them. It is also submitted that going by the legal effect of<\/p>\n
Section 41-A of the Abkari Act, an application for bail will be disposed of<\/p>\n
by the court only after giving an opportunity to the Public Prosecutor to<\/p>\n
oppose the same and going by Sub-section (b)(ii) of Section 41-A of the<\/p>\n
Abkari Act, bail can be granted only if the court is satisfied that there are<\/p>\n
reasonable ground to believe that he is not guilty of such offence and he is<\/p>\n
not likely to commit any offence while on bail. In the light of the above<\/p>\n
provision, it is contended that this is a clear case where attempts have been<\/p>\n
made to over-reach the orders passed by the competent criminal courts.<\/p>\n
      10.    In reply, learned Addl. Director General of Prosecutions<\/p>\n
submitted that the fact that the petitioners have obtained bail was within the<\/p>\n
knowledge of the detaining authority as is evident from the clear mentioning<\/p>\n
of the said fact in Ext.P1 itself and in the Ground of detention, Ext.P2. It is<\/p>\n
pointed out that mere granting of bail by the criminal court will not prevent<\/p>\n
the detaining authority in passing an order of detention and there is no legal<\/p>\n
bar for the same. It is contended that the detaining authority was satisfied<\/p>\n
from the materials produced before it, of the grounds for detaining the<\/p>\n
detenus under Section 3 of the Act in order to prevent them from<\/p>\n
committing any such acts alleged as their activities have become potential<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                        -12-<\/span><\/p>\n
threat to maintenance of peace and public order in the society. It is further<\/p>\n
pointed out that even though the Sessions Court has found in various<\/p>\n
orders that no materials have been made available to connect the accused, in<\/p>\n
fact there were materials like confession statement of the driver who was<\/p>\n
arrested earlier and also of the accused detenus. It is therefore submitted<\/p>\n
that the findings rendered by the Sessions Court in Exts.P6 to P9 about the<\/p>\n
absence of materials, is wrong and the State had taken steps to challenge<\/p>\n
those orders before this court. In fact, before completion of the hearing it<\/p>\n
was submitted by the learned counsel that already Crl.M.Cs. have been filed<\/p>\n
before this court on which notice has been ordered to the accused. It is<\/p>\n
stated that the reasons for not producing the case diary had also been<\/p>\n
explained before the Sessions Court in the objection filed by the Public<\/p>\n
Prosecutor and thus, it is not a case where there was absence of materials to<\/p>\n
connect the    accused with the crime.     It is further submitted that the<\/p>\n
detaining authority has considered the entire materials including the<\/p>\n
confession statement as mentioned above, while passing the order of<\/p>\n
detention and he has applied his mind to all the circumstances also.<\/p>\n
      11. It is clear from Ext.P1 and P2 orders that the detaining authority<\/p>\n
was aware that the detenus have been granted bail in Crime Nos.26\/2008<\/p>\n
and 181\/2006. It is further stated that there is every likelihood of the<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                      -13-<\/span><\/p>\n
detenus getting bail in Crime No.663\/2007 of Kayamkulam Police Station<\/p>\n
also. Thus, it is not a case where the authority concerned was unaware<\/p>\n
about the orders granting bail.       Learned Addl. Director General of<\/p>\n
Prosecutions is well founded in relying upon the principles stated by the<\/p>\n
Apex Court in Kartic Chandra Guha v. The State of West Bengal and<\/p>\n
others (AIR<\/a> 1974 SC 2149) to contend for the position that even if there is<\/p>\n
any likelihood of releasing the accused on bail, it is open to the detaining<\/p>\n
authority to pass orders of detention. It was held in para 4 of the above<\/p>\n
judgment that the District Magistrate was entitled to pass the order of<\/p>\n
detention even in such a case to prevent the accused from acting in a manner<\/p>\n
prejudicial to the maintenance of ‘public order’. Similar is the circumstance<\/p>\n
herein also. Even though the accused had been granted bail in two cases the<\/p>\n
likelihood of the detenus getting bail and indulging in smuggling of spirit,<\/p>\n
etc. had been considered by the detaining authority and there is no legal bar<\/p>\n
in passing the orders of detention. This principle has been reiterated in<\/p>\n
Sanjeev Kumar Aggarwal v. Union of India and others (AIR<\/a> 1990 SC<\/p>\n
1202) also. Therefore, we are of the view that the fact that the applications<\/p>\n
for bail have been allowed in two cases and there was possibility of getting<\/p>\n
bail in Crime No.663\/2007 will not deter the detaining authority from<\/p>\n
passing an order of detention, if circumstances existed. The subjective<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                        -14-<\/span><\/p>\n
satisfaction of the authority concerned is not a matter for judicial review by<\/p>\n
this court in these proceedings and this court will not be justified in<\/p>\n
substituting our opinion with that of the detaining authority. Therefore, the<\/p>\n
argument raised by the petitioners that there is total non-application of<\/p>\n
mind is not correct and we reject the said argument. It is true that under<\/p>\n
Section 41-A of the Abkari Act, the court has to satisfy, while considering<\/p>\n
the application for bail, that there are reasonable ground to believe that he<\/p>\n
is not guilty of such offence and that he is not likely to commit any offence<\/p>\n
while on bail. In the light of the relevant provisions of the Act there is no<\/p>\n
bar for the detaining authority in passing an order of detention, as what is<\/p>\n
relevant is only whether the detention is justified on the facts placed before<\/p>\n
the detaining authority. The principles reiterated by the Apex Court in<\/p>\n
Kamarunnissa v. Union of India and<\/a> another (AIR 1991 SC 1640) is<\/p>\n
apposite to the context. It was held in para 13 of the judgment that “from<\/p>\n
the catena of decisions referred to above it seems clear to us that even in<\/p>\n
the case of a person in custody a detention order can validly be passed<\/p>\n
(1) if the authority passing the order is aware of the fact that he is<\/p>\n
actually in custody; (2) if he has reason to believe on the basis of<\/p>\n
reliable material placed before him (a) that there is a real possibility of<\/p>\n
his being released on bail, and (b) that on being so released he would in<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                       -15-<\/span><\/p>\n
all probability indulge in prejudicial activity and (3) if it is felt essential<\/p>\n
to detain him to prevent him from so doing. If the authority passes an<\/p>\n
order after recording his satisfaction in this behalf, such an order<\/p>\n
cannot be struck down on the ground that the proper course for the<\/p>\n
authority was to oppose the bail and if bail is granted notwithstanding<\/p>\n
such opposition to question it before a higher Court.”<\/p>\n
      12. The next point is whether the provisions of Section 2(o)(ii) of the<\/p>\n
Act are satisfied in this case. The argument raised is that there should have<\/p>\n
been finding in an investigation against the detenu and normally in a<\/p>\n
criminal investigation under the provisions of the Code of Criminal<\/p>\n
Procedure, only after conclusion of the investigation and by filing a report<\/p>\n
under Section 173(2) alone an investigating officer could be said to have<\/p>\n
found that the accused has committed an offence and in this case that stage<\/p>\n
has not reached at all and therefore the pre-conditions to attract the<\/p>\n
provisions are not satisfied. It is pointed out that in the absence of such a<\/p>\n
report by the investigating officer, merely on the basis of the First<\/p>\n
Information Report and the alleged confession statement the detaining<\/p>\n
authority ought not have come to a conclusion that the detention of the<\/p>\n
detenus is necessary. It is pointed out that as far as the Act is concerned,<\/p>\n
there are no specific provisions as regards the investigation of various acts<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                         -16-<\/span><\/p>\n
to satisfy the definition of ‘goonda’ and ‘known goonda’ and therefore resort<\/p>\n
has to be made to the provisions of the Cr.P.C. to understand the real<\/p>\n
purport of the words used in Section 2(o)(ii) also unless there is a report<\/p>\n
under Section 173(2) of the Cr.P.C. it cannot be said that the investigating<\/p>\n
officer would have formed an opinion that the accused has committed an<\/p>\n
offence .\n<\/p>\n
       13. Learned Addl. Director General of Prosecutions contended that<\/p>\n
such a a pre-condition cannot be imported to the above provision at all. It<\/p>\n
was submitted that a senior officer of the department like the Superintendent<\/p>\n
of Police is submitting a report before the detaining authority which is<\/p>\n
evident from Section 3 of the Act and the detaining authority before passing<\/p>\n
the order of detention will have to enter satisfaction on perusing such a<\/p>\n
report along with the materials and hence it cannot be said that a report<\/p>\n
under Section 173(2) of the Cr.P.C. is must for proceeding under the Act.<\/p>\n
The Superintendent of Police being a higher functionary, no malice can be<\/p>\n
attributed also and he will be submitting the report after perusing the case<\/p>\n
diary and based on the materials supplied by the investigating officer and<\/p>\n
therefore there is no lacuna in the procedure adopted.<\/p>\n
       14. It is true that the crucial words used in Section 2(o)(ii) is “found<\/p>\n
in any investigation or enquiry by a competent police officer, authority or<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                          -17-<\/span><\/p>\n
competent court………..”. It is relevant to notice that the Police Officer has<\/p>\n
to rely on the investigation or enquiry to find that the person “committed<\/p>\n
any act within the meaning of the term “goonda” as defined in clause (j) of<\/p>\n
Section 2. The usage of the words “any act” is important.              It is not<\/p>\n
synonymous with the words “any offence”. Even otherwise, the provision<\/p>\n
for an “enquiry by a competent police officer” is also significant. The<\/p>\n
principles reiterated by the Apex Court in Union of India v. Paul<\/p>\n
Manickam and<\/a> another (AIR 2003 SC 4622) are relevant herein. It has<\/p>\n
been held in para 14 that “in case of preventive detention no offence is<\/p>\n
proved, nor any charge is formulated and the justification of such<\/p>\n
detention is suspicion or reasonability and there is no criminal<\/p>\n
conviction which can only be warranted by legal evidence. Preventive<\/p>\n
justice requires an action to be taken to prevent apprehended<\/p>\n
objectionable activities. [See Rex v.Hallidey (1917 AC 260): Mr.Kubic<\/p>\n
Dariusz v.Union of India and others (AIR 1990 SC 605)]. But at the<\/p>\n
same time, a person’s greatest of human freedoms, i.e. personal liberty<\/p>\n
is deprived, and, therefore, the laws of preventive detention are strictly<\/p>\n
construed, and a meticulous compliance with the procedural safeguard,<\/p>\n
however, technical is mandatory. The compulsions of the primordial<\/p>\n
need to maintain order in society, without which enjoyment of all<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                       -18-<\/span><\/p>\n
rights, including the right of personal liberty would lose all their<\/p>\n
meanings, are the true justifications for the laws of preventive<\/p>\n
detention. This jurisdiction has been described as a “jurisdiction of<\/p>\n
suspicion”, and the compulsions to preserve the values of freedom of a<\/p>\n
democratic society and social order sometimes merit the curtailment of<\/p>\n
the individual liberty.” We are of the view that a final report as provided<\/p>\n
under Section 173(2) is not a pre-condition to attract the said provision.<\/p>\n
Preventive detention is anticipatory and preventive. Thus, it is a case where<\/p>\n
the detaining authority will have to satisfy itself of the possibilities of the<\/p>\n
person indulging in acts contemplated by the respective provisions.<\/p>\n
Therefore, a final report as envisaged under Section 173(2) of the Cr.P.C.<\/p>\n
as such is not essential for an action under Section 3 of the Act. Even<\/p>\n
though investigations are pending against the detenus who are accused in<\/p>\n
various crimes and is yet to be completed for various reasons, it will not<\/p>\n
prevent the detaining authority from examining the matter to arrive at the<\/p>\n
subjective satisfaction, even in the absence of a final report. Herein, as<\/p>\n
contended by the Addl. Director General of Prosecutions, there is a report<\/p>\n
by the Superintendent of Police along with the materials supplied by him<\/p>\n
which alone is the pre-requisite for action under Section 3 of the Act.<\/p>\n
Therefore, we reject the said contention.\n<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                        -19-<\/span><\/p>\n
       15.  The next question is whether Section 7(2) of the Act was<\/p>\n
complied with by the respondents after the order of detention was passed<\/p>\n
and executed. Section 7 (2) obliges the authorities concerned to supply to<\/p>\n
the detenu copies of relevant documents on the basis of which he is<\/p>\n
considered as a “known goonda”. In view of the contentions raised by the<\/p>\n
parties on either side, we feel it is profitable to extract Sections 7(1) and 7<\/p>\n
(2) of the Act which are as follows:\n<\/p>\n
             ” 7(1) When a person is arrested in pursuance of a
\n             detention order, the officer arresting him shall read out
\n             the detention order to him and give him a copy of such
\n             order.\n<\/p><\/blockquote>\n
             7(2) The grounds of detention, specifying the instances
\n             of offences, with copies of relevant documents, as far as
\n             practicable, on the basis of which he is considered as a
\n             “known goonda” or “known rowdy” and giving such
\n             materials-relating to his activities on the basis of which
\n             his detention has been found necessary, shall be
\n             furnished to him as soon as possible, nevertheless, in any
\n             case, within five days of detention and he shall also be
\n             informed in writing, under acknowledgment, of his right
\n             to represent to the Government and before the Advisory
\n             Board against his detention:\n<\/p><\/blockquote>\n
                   Provided that nothing in this section shall require
\n             any authority to disclose to the detained person any fact,
\n             the disclosure of which will reveal the identity of any
\n             confidential source or the disclosure of which will be
\n             against the interests of internal security or national
\n             security.”\n<\/p><\/blockquote>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                       -20-<\/span><\/p>\n
This point was raised during the arguments, even though it is not<\/p>\n
specifically taken as a ground in the writ petitions. Relying upon the<\/p>\n
decisions of the Apex Court in Smt. Icchu Devi Choraria v. Union of<\/p>\n
India and others<\/a> {(1980) 4 SCC 531}, M. Ahamedkutty v. Union of<\/p>\n
India and<\/a> another {(1990) 2 SCC 1) and other decisions, learned Senior<\/p>\n
Counsel for the petitioners contended that since it is a legal question, that<\/p>\n
can be considered by this court. The argument developed is like this. Even<\/p>\n
though the detaining authority has clearly mentioned about the existence of<\/p>\n
orders granting bail, they have not been communicated to the detenus. This<\/p>\n
amounts to gross violation of Section 7(2) of the Act, and merely because<\/p>\n
the detenus could subsequently procure it, that cannot save the situation as<\/p>\n
strict adherence to the provisions is required. Again, when confronted with<\/p>\n
the findings rendered by the respective courts in Exts.P4 to P9 regarding<\/p>\n
absence of any positive material to connect the accused for granting bail, it<\/p>\n
was submitted by the learned Addl. Director General of Prosecutions that<\/p>\n
materials like confession statement of the driver who was arrested and that<\/p>\n
of the petitioners themselves were there which have been considered by the<\/p>\n
authorities. These have not been made available to the detenus. It was<\/p>\n
submitted by the learned Addl. Director General of Prosecutions that those<\/p>\n
materials were in the files which were duly considered by the authorities<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                          -21-<\/span><\/p>\n
concerned before the order of detention was passed.\n<\/p>\n
      16. A reference to the averments contained in the counter affidavit<\/p>\n
filed by the second respondent, the detaining authority, in Writ Petition<\/p>\n
No.265\/2008 is profitable while considering the above arguments. In para<\/p>\n
8 of the counter affidavit, it is stated as follows:\n<\/p>\n
        “On examination and evaluation of said report along with the<\/p>\n
        connected First Information Report and supporting materials and<\/p>\n
        being satisfied with the fact that Shri Jojo George is a bootlegger as<\/p>\n
        defined in Section 2(C) of the Kerala Anti-social Activities<\/p>\n
        (Prevention) Act, 2007 and also a “Known Goonda” as defined in<\/p>\n
        Section 2(o) thereof and that his activities have become potential<\/p>\n
        threat to maintenance of peace and public order in the society,<\/p>\n
        Ext.P1 order of detention was issued by the 2nd respondent.”<\/p>\n<\/blockquote>\n
In regard to the aspect governing the service of copy of the order of<\/p>\n
detention, the crucial averment in para 7 of the counter affidavit is the<\/p>\n
following:\n<\/p>\n
         “At the time of arrest the detenu was served with copies of order of<\/p>\n
         detention, grounds of detention (English and Malayalam), copies of<\/p>\n
         First Information Reports, etc. and acknowledgment obtained.”<\/p>\n<\/blockquote>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                      -22-<\/span><\/p>\n
Similar averments have been made in the counter affidavits filed in other<\/p>\n
two writ petitions.\n<\/p>\n
       17. The connected files produced by the Additional Director General<\/p>\n
of Prosecutions have been perused by us. In fact, it was pointed out by the<\/p>\n
respondents with reference to the files that the acknowledgment of the<\/p>\n
detenus have been obtained in the copies furnished and there is no lacuna<\/p>\n
on this point.   In all the three writ petitions, the files start with the<\/p>\n
letter\/report number 32170\/Camp\/2007P dated          24.6.2008 from the<\/p>\n
Superintendent of Police, Palakkad to the District Magistrate, Palakkad.<\/p>\n
Therein, the brief history of the three cases, viz. Crime Nos.26.2008,<\/p>\n
181\/2006 and 263\/2006 have been stated and it is recommended that the<\/p>\n
detenu\/accused be detained under Section 3 of the Act, so that he is not able<\/p>\n
to commit any other smuggling, conspiracy and illegal transportation of<\/p>\n
spirit cases. The enclosure shows five items of documents which includes<\/p>\n
the grounds of detention, brief of cases, brief of FIRs, and the copies of<\/p>\n
FIRs in three cases. On verifying with the documents, it is found that<\/p>\n
acknowledgments have been obtained behind the order of detention, the<\/p>\n
grounds of detention in English and Malayalam, memo for executing the<\/p>\n
order of detention, copies of F.I.Rs. in the three cases, a letter dated<\/p>\n
24.1.2008 issued by Malabar Cements Limited to the Sub Inspector of<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                       -23-<\/span><\/p>\n
Police, Valayar, copy of the statement submitted by the police officer<\/p>\n
concerned before the Judicial First Class Magistrate’s Court-I, Palakkad<\/p>\n
seeking to include the names of the accused in the array of accused, copy of<\/p>\n
crime and occurrence report of the Excise Department and seizure<\/p>\n
mahazars. The files do not show that the copies of Exts.P4 to P9 have been<\/p>\n
served on the detenus and the copies of confession statements of the driver<\/p>\n
and the detenus themselves have been served on them. The situation is<\/p>\n
identical in all the three cases. Thus, the question is whether the submission<\/p>\n
made by the respondents that copies of all the material documents have<\/p>\n
been supplied to the detenus is correct or not. Going by the endorsement<\/p>\n
contained in the letter dated 24.6.2008 of the Superintendent of Police,<\/p>\n
Palakkad, what was forwarded are only the copies of F.I.Rs., brief of<\/p>\n
F.I.Rs., brief of cases and grounds of detention and nothing else. If that is<\/p>\n
accepted on the face value, it would have to be concluded that the other<\/p>\n
documents like copies of the bail orders and copies of the confession<\/p>\n
statements of the driver and the accused were not forwarded along with<\/p>\n
them. But in the light of the fact that reference is made to the release on<\/p>\n
bail of the detenus under various orders, in the grounds of detention,<\/p>\n
straight away it cannot be concluded that this was made without seeing<\/p>\n
those orders. If the earlier position is accepted, then the orders will be<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                        -24-<\/span><\/p>\n
vitiated by non-application of mind to the relevant materials and non-supply<\/p>\n
of relevant documents to the detaining authority. To meet the argument of<\/p>\n
the learned counsel for the petitioners that respondents are bound by the<\/p>\n
findings rendered in Exts.P6 to P9 to the effect that there are no reliable<\/p>\n
materials to implicate the detenu, it was vehemently argued on behalf of the<\/p>\n
respondents that the confession by the driver and the detenus will clearly<\/p>\n
implicate them.    Thus, obviously the detaining authority would have<\/p>\n
confronted the findings contained in these orders with the confession<\/p>\n
statements relied upon by the respondents.         These were very material<\/p>\n
documents and were essential for arriving at the subjective satisfaction by<\/p>\n
the detaining authority. Therefore, the question is whether the non-supply<\/p>\n
of those documents to the detenus is fatal.\n<\/p>\n
       18.  Going by the decision of the Apex Court in Usha Agarwal v.<\/p>\n
Union of India and others<\/a> {(2007) 1 SCC 295}                 “the   procedural<\/p>\n
safeguards under the Constitution have been interpreted, to require every<\/p>\n
material which is relevant, having a bearing on the question as to whether a<\/p>\n
person should be detained under the Act, be placed before the detaining<\/p>\n
authority, as the detention to detain a person is rendered by a detaining<\/p>\n
authority on his subjective satisfaction as to the existence of the grounds for<\/p>\n
such detention. The sponsoring authority should not undertake any exercise<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                        -25-<\/span><\/p>\n
of examination and interpretation of the available material with a view to<\/p>\n
place the documents selectively before the detaining authority. It is not for<\/p>\n
the sponsoring authority to decide as to which of the relevant documents<\/p>\n
should be placed before the detaining authority, or which of the documents<\/p>\n
are likely to help or not help the prospective detenu. Consequently, the<\/p>\n
sponsoring authority cannot exclude any particular document from the<\/p>\n
material to be placed before the detaining authority. If the relevant facts or<\/p>\n
documents which may influence the subjective satisfaction of the detaining<\/p>\n
auhtority on the question whether or not to make the detention order, are not<\/p>\n
placed before the detaining authority, or are not considered by the detaining<\/p>\n
authority, it may vitiate the detention order itself. It is no answer to say that<\/p>\n
the view of the other documents that were placed before the detaining<\/p>\n
authority or that the detaining authority would have come to the same<\/p>\n
conclusion even if it had considered the said document.” In para 13 of the<\/p>\n
said judgment, their Lordships further held as follows:<\/p>\n
        ” A document is relevant for considering the case of a person for<\/p>\n
        preventive detention if it relates to or has a bearing on either of the<\/p>\n
        following two issues: (a) whether the detenu had indulged in<\/p>\n
        smuggling or other activities prejudicial to the State, which the<\/p>\n
        COFEPOSA Act is designed to prevent; and (b) whether the nature<\/p>\n
        of the illegal and prejudicial activity and the manner in which the<\/p>\n
        detenu had indulged in such activity, gave a reasonable indication<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                        -26-<\/span><\/p>\n
        that he would continue to indulge in such activity. In other words,<\/p>\n
        whether he had the propensity and potentiality to continue the<\/p>\n
        prejudicial activity necessitating an order of detention.”<\/p>\n<\/blockquote>\n
Herein, the detention is ordered to prevent the detenu from indulging in<\/p>\n
further smuggling of illicit spirit.     It will be therefore clear that the<\/p>\n
documents like confession statement of the accused and the driver and the<\/p>\n
orders on the bail applications were relevant documents to be produced<\/p>\n
before the detaining authority.\n<\/p>\n
      19. It is well settled by various decisions of the Apex Court that<\/p>\n
communication of materials is essential for the detenu to make an effective<\/p>\n
representation against his detention. In Smt. Icchu Devi Choraria’s case<\/p>\n
(supra) {(1980) 4 SCC 531), it was held in paragraphs 6, 7 and 8 in the<\/p>\n
following terms:\n<\/p>\n
                    “The right to be supplied copies of the documents,<\/p>\n
             statements and other materials relied upon in the grounds<\/p>\n
             of detention without any undue delay flows directly as a<\/p>\n
             necessary corollary from the right conferred on the<\/p>\n
             detenu to be afforded the earliest opportunity of making<\/p>\n
             a representation against the detention, because unless the<\/p>\n
             former right is available, the latter cannot be<\/p>\n
             meaningfully exercised. On a proper construction of<\/p>\n
             Article 22(5) read with Section 3(3) of the COFEPOSA<\/p>\n
             Act, it is necessary for the valid continuance of detention<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                       -27-<\/span><\/p>\n
             that subject to Article 22(6) copies of the documents,<\/p>\n
             statements and other materials relied upon in the<\/p>\n
             grounds of detention should be furnished to the detenu<\/p>\n
             along with the grounds of detention or in any event not<\/p>\n
             later than five days and in exceptional circumstances and<\/p>\n
             for reasons to be recorded in writing, not later than<\/p>\n
             fifteen days from the date of detention. There are no<\/p>\n
             exceptions or qualifications provided to this rule which<\/p>\n
             operates in all its rigour and strictness and if this<\/p>\n
             requirement of Article 22(5) read with Section 3(3) is<\/p>\n
             not satisfied, the continued detention of the detenu<\/p>\n
             would be illegal and void. However, even if the above<\/p>\n
             interpretation of the words “grounds on which the order<\/p>\n
             has been made” in Article 22(5) and Section 3(3),<\/p>\n
             COFEPOSA be wrong, the copies of documents,<\/p>\n
             statements and other materials relied upon in the grounds<\/p>\n
             of detention must be supplied to the detenu without any<\/p>\n
             unreasonable delay.”\n<\/p><\/blockquote>\n
It has also been held that “in case of an application for writ of habeas<\/p>\n
corpus, the practice evolved by the Supreme Court is not to follow strict<\/p>\n
rules of pleading nor place undue emphasis on the question as to on whom<\/p>\n
the burden of proof lies.”      In M. Ahamedkutty’s case (supra), while<\/p>\n
considering a similar question, it was held that “the detenu has the right to<\/p>\n
be furnished with the grounds of detention along with the documents relied<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                         -28-<\/span><\/p>\n
on. If there is failure or even delay in furnishing those documents it would<\/p>\n
amount to denial of the right to make an effective representation guaranteed<\/p>\n
under Article 22(5).” It was further held in para 20 as follows:<\/p>\n
           “It is immaterial whether the detenu already knew about their<\/p>\n
        contents or not. In Mehrunissa v. State of Maharashtra<\/a> it was<\/p>\n
        held that the fact that the detenu was aware of the contents of the<\/p>\n
        documents not furnished was immaterial and non-furnishing of the<\/p>\n
        copy of the seizure list was held to be fatal. To appreciate this point<\/p>\n
        one has to bear in mind that the detenu is in jail and has no access to<\/p>\n
        his own documents. In Mohd. Zakir v. Delhi Administration<\/a> it<\/p>\n
        was reiterated that it being a constitutional imperative for the<\/p>\n
        detaining authority to give the documents relied on and referred to in<\/p>\n
        the order of detention pari passu the grounds of detention, those<\/p>\n
        should be furnished at the earliest so that the detenu could make an<\/p>\n
        effective representation immediately instead of waiting for the<\/p>\n
        documents to be supplied with. The question of demanding the<\/p>\n
        documents was wholly irrelevant and the infirmity in that regard was<\/p>\n
        violative of constitutional safeguards enshrined in Article 22(5).”<\/p>\n<\/blockquote>\n
Therefore, the argument raised by the learned Additional Director General<\/p>\n
of Prosecutions that since the copies of orders Exts.P4 to P9 have been<\/p>\n
produced by the detenus along with their representation, the non-furnishing<\/p>\n
of the said copies will not be fatal, is not correct. Their Lordships have held<\/p>\n
that “it is immaterial whether the detenu already knew about their contents<\/p>\n
or not.” There was no obligation on the part of the detenu to demand the<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                       -29-<\/span><\/p>\n
documents and if they were not supplied, that will violate the constitutional<\/p>\n
safeguards enshrined in Article 22(5) read with Section 7(2) of the Act.<\/p>\n
The reliance placed by the learned Addl. Director General of Prosecutions<\/p>\n
to the decision in Usha Agarwal’s case (supra) to contend that the detenu<\/p>\n
had forwarded the copies of documents and therefore there will not be any<\/p>\n
violation of the provisions, is not correct. Therein, the detenu alleged that<\/p>\n
legible copies of documents were not supplied to him. But it turned out that<\/p>\n
these were documents which had been forwarded by the detenu himself<\/p>\n
earlier to the department which were illegible.        The copies of those<\/p>\n
documents have actually been furnished by the detaining authority to the<\/p>\n
detenu which contained such illegible portions. It is on that ground the<\/p>\n
Apex Court found that there is no merit in the contention that proper copies<\/p>\n
were not furnished. Herein, the position is different. Copies of the orders<\/p>\n
on the bail applications have not been furnished to the detenus. Copies of<\/p>\n
the confession statements have also not been furnished. Only copy of a<\/p>\n
statement submitted by the investigating officer to the criminal court for<\/p>\n
adding their names as accused alone was furnished without annexing the<\/p>\n
copies of the confession statements. We have referred to the averments of<\/p>\n
the second respondent in the counter affidavit on this crucial aspect wherein<\/p>\n
it is stated that “the order of detention was passed on examination and<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                        -30-<\/span><\/p>\n
evaluation of the report along with the connected FIR and supporting<\/p>\n
materials.” As we have pointed out earlier, if the supporting materials are<\/p>\n
not furnished and only the copies of FIRs, brief of cases, brief of FIRs. and<\/p>\n
grounds of detention as seen from the enclosures mentioned in the report of<\/p>\n
the Superintendent of Police alone are furnished, that will vitiate the order<\/p>\n
of detention, as he had failed to forward the relevant materials to the<\/p>\n
detaining authority. That is not the case here as now pleaded. There is<\/p>\n
nothing in the files to show that the copies of the bail orders or the copies of<\/p>\n
confession statements have been communicated to the detenus.               The<\/p>\n
position is reiterated by the Apex Court in Adishwar Jain v. Union of<\/p>\n
India and<\/a> another {(2006) 11 SCC 339} wherein it was held in para 29<\/p>\n
that “if the documents were material so as to enable the detenu to make an<\/p>\n
effective representation which is his constitutional as also statutory right,<\/p>\n
non-supply thereof would vitiate the order of detention. What is necessary<\/p>\n
to be supplied is the relevant and the material documents, but, thus, all<\/p>\n
relevant documents must be supplied so as to enable the detenu to make an<\/p>\n
effective representation which is his fundamental right under Article 22(5)<\/p>\n
of the Constitution. Right to make an effective representation is also a<\/p>\n
statutory right.” This dictum squarely applies to the facts of this case.<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                        -31-<\/span><\/p>\n
       20. It is therefore to be examined whether there is any violation of<\/p>\n
Section 7(2) of the Act. Going by Section 7(2) of the Act, it is clear that<\/p>\n
the authorities are bound to furnish the grounds of detention specifying the<\/p>\n
instances of     offences with copies of relevant documents as far as<\/p>\n
practicable, on the basis of which he is considered as a “known goonda”<\/p>\n
and giving such materials relating to his activities on the basis of which his<\/p>\n
detention has been found necessary. Even though it was argued by the<\/p>\n
learned Addl. Director General of Prosecutions by relying upon Section 3<\/p>\n
(1) of the Act that the report or information conveyed by the Superintendent<\/p>\n
of Police is the sole basis for the action under Section 3(1) of the Act, we<\/p>\n
are afraid that the said argument may not be correct in the light of Section 7<\/p>\n
(2) of the Act. The detenu is entitled to know the basis on which he is<\/p>\n
considered as a “known goonda” and he shall also be furnished such<\/p>\n
materials relating to his activities on the basis of which his detention has<\/p>\n
been found necessary. Therefore, the report of the Superintendent of Police<\/p>\n
alone is not the basis of the action, but apart from the report, materials<\/p>\n
forwarded to the detaining authority are crucial for arriving at the subjective<\/p>\n
satisfaction by that authority. He cannot withhold any material from the<\/p>\n
detaining authority also. The provisions under Section 7(2) are plain and<\/p>\n
clear and no other interpretation is possible. It may also be of mentioned<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                       -32-<\/span><\/p>\n
here of the argument raised by the learned Senior counsel appearing for the<\/p>\n
petitioners that there are clear findings rendered by the various courts in<\/p>\n
Exts.P4 to P9 orders , on the absence of materials to connect the accused.<\/p>\n
Therefore, the respondents were compelled to disclose the crucial materials<\/p>\n
in this proceedings, by way of confession statement of the accused and the<\/p>\n
driver. Copies of the same are kept in one of the files produced before us.<\/p>\n
Since they have been the basis for their arrest, their importance cannot be<\/p>\n
lost sight of. Non-supply of the said material and the copies of bail orders<\/p>\n
to the detenu is therefore a clear violation of Section 7(2) of the Act read<\/p>\n
with Section 22(5) of the Constitution of India. Since the principles of<\/p>\n
natural justice are violated, the consequent action will have to fail. We are<\/p>\n
fortified in our view by the recent decision of the Apex Court in Union of<\/p>\n
India v. Ranu Bhandari<\/a> (2008 (12) SCALE 452).\n<\/p>\n
       21. It is submitted by the learned Addl. Director General of<\/p>\n
Prosecutions that Criminal Miscellaneous Cases have been filed challenging<\/p>\n
the orders granting bail. That is a matter to be considered in the said<\/p>\n
proceedings. We are not finally pronouncing upon the same.<\/p>\n
       22. The learned Addl. Director General of Prosecutions, relying upon<\/p>\n
the decision of this court in Aysha Nazreem v. Government of Kerala &<\/p>\n
others<\/a> (2002 (2) KLJ 464) submitted that even if this court finds that there<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                        -33-<\/span><\/p>\n
are any procedural infirmities, the detaining authority can pass fresh orders<\/p>\n
after clearing the procedural defects.        While considering a similar<\/p>\n
argument, it was held by this court in the above said decision that in<\/p>\n
appropriate cases where there are procedural       infirmities, the detaining<\/p>\n
authority can pass fresh orders after clearing the procedural defects. Their<\/p>\n
Lordships have relied upon the decision of the Apex Court in Naranjan<\/p>\n
Singh Nathawan v. State of Punjab (AIR<\/a> 1952 SC 106) while arriving at<\/p>\n
the said conclusion. Herein, we notice that Section 13(2) of the Act allows<\/p>\n
the authorities concerned to pass fresh orders of detention.        The said<\/p>\n
provision is extracted below:\n<\/p>\n
             “13(2) The revocation or expiry of a detention order
\n             shall not be a bar for the issuance of another detention
\n             order under Section 3 against the same person, if he
\n             continues to be a person falling within the definition of
\n             known rowdy or known goonda as given in Section 2(o)
\n             or Section 2(p) and if,–\n<\/p><\/blockquote>\n
                   (i)after release, he is, found to have, again
\n                      involved in an offence of the nature described in
\n                      Section 2(o) or Section 2(p) at least in one
\n                      instance; or<\/p>\n<\/blockquote>\n
                   (ii)the facts, which came to the notice of the
\n                      Government or the authorised officer after the
\n                      issuance   of    the  earlier  detention    order,
\n                      considered along with previously known facts
\n                      are   sufficient    to  cause     a     reasonable
\n                      apprehension that he is likely to indulge in or
\n                      promote or abet anti-social activities; or<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008                       -34-<\/span><\/p>\n<\/blockquote>\n
                     (iii) the procedural errors or omissions, by
\n                     reason of which the first order was revoked, are
\n                     rectified in the procedure followed with regard
\n                     to the subsequent order, even if the subsequent
\n                     order is based on the very same facts as the first
\n                     order.”\n<\/p><\/blockquote>\n<\/blockquote>\n
      23. In the light of the above provision and in the light of the<\/p>\n
principles stated in Naranjan Singh Nathawan’s case (supra), the<\/p>\n
detaining authority will be within its powers to act accordingly, even if we<\/p>\n
find that Ext.P1 order does not survive.<\/p><\/blockquote>\n
      Therefore, the writ petitions are allowed. Ext.P1 in all the three writ<\/p>\n
petitions are quashed. The detenus will be released forthwith, if they are<\/p>\n
not wanted in any other case.\n<\/p>\n<\/p>\n
                                           ( P.R.Raman, Judge.)<\/p>\n
                                    (T.R. Ramachandran Nair, Judge.)<\/p>\n
kav\/<\/p>\n
WP.(Crl.)Nos.265,
\n266 & 267\/2008       -35-<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Elizebath George vs State Of Kerala on 7 October, 2008 IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(Crl.).No. 265 of 2008(S) 1. ELIZEBATH GEORGE, AGED 80 YEARS, … Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY THE … Respondent 2. THE DISTRICT MAGISTRATE AND 3. THE SUPERINTENDENT OF CENTRAL PRISON, 4. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-12673","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nElizebath George vs State Of Kerala on 7 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/elizebath-george-vs-state-of-kerala-on-7-october-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Elizebath George vs State Of Kerala on 7 October, 2008 - 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