{"id":239067,"date":"2009-09-16T00:00:00","date_gmt":"2009-09-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/praseetha-vs-the-state-of-kerala-on-16-september-2009-2"},"modified":"2018-07-29T09:30:42","modified_gmt":"2018-07-29T04:00:42","slug":"praseetha-vs-the-state-of-kerala-on-16-september-2009-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/praseetha-vs-the-state-of-kerala-on-16-september-2009-2","title":{"rendered":"Praseetha vs The State Of Kerala on 16 September, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Praseetha vs The State Of Kerala on 16 September, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(Crl.).No. 321 of 2009(S)\n\n\n1. PRASEETHA, W\/O. K. SYAMKUMAR,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. THE STATE OF KERALA, REP. BY ADDITIONAL\n                       ...       Respondent\n\n2. THE DISTRICT COLLECTOR & DISTRICT\n\n3. THE CHAIRMAN, KERALA ANTI-SOCIEAL\n\n4. THE DEPUTY COMMISSIONER OF POLICE\n\n                For Petitioner  :SRI.M.RAJAGOPALAN NAIR\n\n                For Respondent  :GOVERNMENT PLEADER\n\nThe Hon'ble MR. Justice R.BASANT\nThe Hon'ble MRS. Justice M.C.HARI RANI\n\n Dated :16\/09\/2009\n\n O R D E R\n                                                            \"CR\"\n\n                 R.BASANT & M.C.HARI RANI, JJ.\n          --------------------------------------------------\n                   W.P.(Crl.)No.321 OF 2009\n       -----------------------------------------------------\n     DATED THIS THE 16TH DAY OF SEPTEMBER, 2009\n\n                          J U D G M E N T\n<\/pre>\n
Basant, J.\n<\/p>\n
     1)     Does revocation of a detention order under<\/p>\n
            Section 10(4) fall within the sweep of Section<\/p>\n
            13(2) of the Kerala Anti Social Activities<\/p>\n
            (Prevention)Act (hereinafter referred to as the<\/p>\n
            ‘KAAPA’)?\n<\/p>\n
     2)     Does Section 13(2)(i) of the KAAPA override the<\/p>\n
            requirements of Section 3(1) of the KAAPA and<\/p>\n
            is it independent of the stipulations of Section<\/p>\n
            3(1) of the KAAPA ?\n<\/p>\n
These are the questions of law coming up for consideration in this<\/p>\n
writ petition.\n<\/p>\n
     2.     The petitioner is the wife of the detenu by name<\/p>\n
Syamkumar, who has been detained under Section 3(1) read<\/p>\n
with Section 13(2) of the KAAPA.         A synoptic resume of the<\/p>\n
W.P.(Crl.)No.321\/09                      -2-<\/span><\/p>\n
events which led to the passing of the impugned order of<\/p>\n
detention (i.e.Ext.P1) appears to be vital and necessary.<\/p>\n
      3.     The detenu was involved in four criminal cases, the<\/p>\n
details of which are given below:\n<\/p>\n<\/p>\n
    Sl.No.   Crime No.    Police   Date of  Offences alleged
\n                          Station  offence (inter alia)<\/p>\n
            Crime       Vanchiyoor          U\/s.323,324,341,308
\n            No.203\/04   Police              & 34 IPC.<\/p>\n
          1             Station    01\/08\/04\n            Crime       Vanchiyoor          143,147,148,149,324,\n            No.142\/2002 Police    23\/7\/02   452,326&427of IPC.\n          2 .           Station\n            Crime       Pettah              U\/s.324 & 34 IPC\n            No.147\/02 . Police\n          3             Station    11\/10\/02\n            Crime No.   Pettah              U\/s.394 & 34 IPC\n            81\/07       Police\n          4             Station    03\/04\/07\n\n\n\n<\/pre>\n
On the basis of these four cases, the detenu was considered to<\/p>\n
be a known rowdy and an order of detention dated 31-3-2008<\/p>\n
was passed against the detenu under Section 3(1) of the KAAPA.<\/p>\n<\/blockquote>\n
A copy of that order is not made available to the court.          In<\/p>\n
execution of the said order of detention, the detenu was arrested<\/p>\n
on 19-6-2008 and he continues to be under detention. The said<\/p>\n
W.P.(Crl.)No.321\/09                  -3-<\/span><\/p>\n
order of detention was approved under Section 3(3) of the<\/p>\n
KAAPA. The said order of detention was challenged in W.P.(Crl.)<\/p>\n
No.274\/2008 before this Court. But when a reference was made<\/p>\n
to the Advisory Board constituted under Section 8 of the KAAPA,<\/p>\n
the Advisory Board reported     that in its opinion no sufficient<\/p>\n
cause is there for the detention of the detenu. Accordingly, by<\/p>\n
order dated 22-8-2008 ( a copy of which is not produced), the<\/p>\n
order of detention was    revoked under Section 10(4) of the<\/p>\n
KAAPA and the detenu was released. W.P.(Crl)No.274\/2008 was,<\/p>\n
in these circumstances, closed as infructuous as per judgment<\/p>\n
dated 26-8-2008, a copy of which is produced as Ext.P5.<\/p>\n
      4. Subsequently, the detenu was involved in another crime,<\/p>\n
i.e. Crime No.659\/2008. The incident in that case occurred on<\/p>\n
22.10.2008. The crime was registered; it was investigated; final<\/p>\n
report was filed and the same was registered as C.P.No.52\/2009<\/p>\n
before the Magistrate concerned.\n<\/p>\n
      5. After the said investigation was completed, Exhibit P3<\/p>\n
report dated 19.6.2009 (signed on 20.6.2009) was submitted by<\/p>\n
the     4th   respondent, Deputy    Commissioner     of  Police,<\/p>\n
W.P.(Crl.)No.321\/09                     -4-<\/span><\/p>\n
Thriuvananthapuram       City   to  the   2nd respondent,    District<\/p>\n
Magistrate under Section 3(1) of the KAAPA. On the basis of the<\/p>\n
said report, the impugned order of detention, Ext.P1 was passed<\/p>\n
on 30-6–2009.        The alleged detenu was arrested and he<\/p>\n
continues to be under detention from 18-7-2009. The order<\/p>\n
under Section 3(1) of the KAAPA passed by the second<\/p>\n
respondent has been approved by the Government under Section<\/p>\n
3(3) of the KAAPA. The order under Section 10(4) has not yet<\/p>\n
been passed, it is conceded.\n<\/p>\n
      6. Before us, the learned counsel for the petitioner<\/p>\n
Sri.M.Rajagopalan Nair, assails the impugned order on the<\/p>\n
following five grounds:\n<\/p>\n
      1)     The detaining authority erred in assuming that<\/p>\n
             Section 13(2) of the KAAPA granted a power to<\/p>\n
             detain without strict compliance with the provisions<\/p>\n
             of Section 3 of the KAAPA.\n<\/p><\/blockquote>\n
      2)     Revocation   under    Section   10(4)   cannot   be<\/p>\n
             reckoned as revocation under Section 13(1) and<\/p>\n
             consequently it must be held that the provisions of<\/p>\n
W.P.(Crl.)No.321\/09                    -5-<\/span><\/p>\n
             Section 13(2) have no application to an order of<\/p>\n
             revocation under Section 10(4) of the KAAPA.<\/p>\n<\/blockquote>\n
      3)     When revocation under Section 10(4) of the KAAPA<\/p>\n
             is consequent to the opinion of the Advisory Board,<\/p>\n
             no fresh order of detention can be passed relying<\/p>\n
             on the same grounds wholly or by placing reliance<\/p>\n
             on the same in part.\n<\/p><\/blockquote>\n
      4)     There has been no proper application of mind by<\/p>\n
             the detaining authority before passing Ext.P1<\/p>\n
             order.\n<\/p><\/blockquote>\n
      5)     Ext.P1 order is bad for the reason that copies of<\/p>\n
             relevant documents have not been furnished as<\/p>\n
             mandated by Section 7(2) of the KAAPA and Article<\/p>\n
             22(5) of the Constitution of India.<\/p><\/blockquote>\n
      7. Ground No.1. It will be apposite straight away to take<\/p>\n
note of the relevant statutory stipulations. Section 10(4) of the<\/p>\n
KAAPA deals with revocation of an order of detention consequent<\/p>\n
to the opinion of the Advisory Board. It reads as follows:<\/p>\n
         “10(4) In every case where the Advisory Board has<\/p>\n
W.P.(Crl.)No.321\/09                    -6-<\/span><\/p>\n
         reported that there is in its opinion sufficient cause<\/p>\n
         for the detention of a person, the Government may<\/p>\n
         confirm the detention order and continue the<\/p>\n
         detention of the person concerned for such period as<\/p>\n
         it thinks fit and in every case where the Advisory<\/p>\n
         Board has reported that there is in its opinion no<\/p>\n
         sufficient cause for the detention of a person<\/p>\n
         concerned,    the  Government     shall  revoke    the<\/p>\n
         detention order and cause the person to be released<\/p>\n
         forthwith”.          (emphasis supplied)<\/p>\n<\/blockquote>\n
      8. Section 13(1) of the KAAPA deals with the power to<\/p>\n
revoke an order of detention and Section 13 (2) deals with the<\/p>\n
circumstances under which revocation of an earlier order of<\/p>\n
detention shall not bar issuance of another order of detention. It<\/p>\n
reads as follows:\n<\/p><\/blockquote>\n
        “13. Revocation of detention order,-<\/p>\n
        (1) A detention order may, at any time, be<\/p>\n
        revoked or modified by the Government.<\/p>\n
      (2)    The revocation or expiry of detention order<\/p>\n
W.P.(Crl.)No.321\/09                      -7-<\/span><\/p>\n
      shall not be a bar for the issuance of another<\/p>\n
      detention order under Section 3 against the<\/p>\n
      same person, if he continues to be a person<\/p>\n
      falling within the definition of known rowdy or<\/p>\n
      known goonda as given in Section 2(o) or<\/p>\n
      Section 2(p) and if, –\n<\/p><\/blockquote>\n
       (i) after release, he is found to have, again involved<\/p>\n
             in an offence of the nature described in Section 2<\/p>\n<\/blockquote>\n
             (o) or Section 2(p) at least in one instance; or<\/p>\n<\/blockquote>\n
       (ii) the facts, which came to the notice of the<\/p>\n
             Government or the authorised officer after the<\/p>\n
             issuance of the earlier detention order, considered<\/p>\n
             along with previously known facts are sufficient to<\/p>\n
             cause a reasonable apprehension that he is likely<\/p>\n
             to indulge in or promote or abet anti-social<\/p>\n
             activities; or<\/p>\n<\/blockquote>\n
       (iii) the procedural errors or omissions, by reason of<\/p>\n
             which the first order was revoked, are rectified in<\/p>\n
             the procedure followed with regard to the<\/p>\n
W.P.(Crl.)No.321\/09                     -8-<\/span><\/p>\n
             subsequent order, even if the subsequent order is<\/p>\n
             based on the very same facts as the first order.”<\/p><\/blockquote>\n<\/blockquote>\n
\n<\/blockquote>\n
      9. The learned counsel for the petitioner contends first of<\/p>\n
all that the sponsoring and detaining authorities appear to have<\/p>\n
misread of Section 13(2) of the KAAPA, to erroneously assume<\/p>\n
that Section 13(2) gives a fresh ground of detention not<\/p>\n
contemplated by Section 3(1) of the KAAPA. The learned counsel<\/p>\n
submits that Section 13(2) does not confer any powers in<\/p>\n
addition to Section 3 of the KAAPA, but only            clarifies the<\/p>\n
circumstances under which the power to pass a fresh order of<\/p>\n
detention under Section 3 of the KAAPA would remain unaffected<\/p>\n
even when an earlier order of detention is revoked or the period<\/p>\n
of detention expires.<\/p><\/blockquote>\n
      10. We find it easy to accept this contention of the learned<\/p>\n
counsel for the petitioner.   An order of detention can be passed<\/p>\n
only under Section 3 of the KAAPA. To pass such an order of<\/p>\n
detention, the detaining authority must entertain the twin<\/p>\n
satisfactions contemplated in Section 3(1) of the KAAPA. The<\/p>\n
person against whom the order has been passed must be a<\/p>\n
W.P.(Crl.)No.321\/09                    -9-<\/span><\/p>\n
known goonda or known rowdy.          This  is referred to   as the<\/p>\n
threshold satisfaction or the initial objective satisfaction. Once<\/p>\n
that threshold objective satisfaction is entertained,     a further<\/p>\n
satisfaction will have to be entertained that it is necessary to<\/p>\n
detain the detenu to prevent him from committing anti-social<\/p>\n
activities.    This is the latter subjective satisfaction.  We are<\/p>\n
unable to agree that Section 13 of the KAAPA stipulates any<\/p>\n
different requirements to justify an order of detention under<\/p>\n
Section 3 of the KAAPA.        Section 13(2) only deals with the<\/p>\n
situation where revocation of an order of detention or expiry of<\/p>\n
the period of detention thereunder will not affect the powers of<\/p>\n
the detaining authority to pass a fresh order under Section 3(1)<\/p>\n
of the KAAPA. Section 13(2) of the KAAPA does not prescribe<\/p>\n
any different standards for passing an order of detention.<\/p>\n
According to us, Section 13(2) only stipulates that powers under<\/p>\n
Section 3 of the KAAPA can be invoked and exercised even when<\/p>\n
there is revocation of an earlier order of detention under Section<\/p>\n
13 of the KAAPA or expiry of the period of detention under an<\/p>\n
earlier order. Ordinarily and normally revocation of an order of<\/p>\n
W.P.(Crl.)No.321\/09                    -10-<\/span><\/p>\n
detention must be held to make it impermissible to pass a fresh<\/p>\n
order of detention on the same grounds. Section 13(2) only<\/p>\n
clarifies that notwithstanding the fact that an order of revocation<\/p>\n
was passed earlier or the fact that the period of detention under<\/p>\n
an earlier order of detention has expired, a subsequent order of<\/p>\n
detention under Section 3 of the KAAPA can be passed if the<\/p>\n
stipulations of Section 13(2) of the KAAPA are satisfied. Section<\/p>\n
13(2) does therefore only lift (subject to conditions) the bar<\/p>\n
against passing a fresh order of detention when an earlier order<\/p>\n
of detention has been revoked under Section 13(1) or when the<\/p>\n
period of detention under an earlier order has expired.<\/p>\n
       11. In fact it must be noted very carefully that an order of<\/p>\n
detention can be passed only if the requirements of Section 3 of<\/p>\n
the KAAPA are satisfied at the time of passing the order. But,<\/p>\n
when an order of revocation under Section 13 of the KAAPA is<\/p>\n
already passed, such powers under Section 3 of the KAAPA can<\/p>\n
be invoked only if the requirements of Section 13(2) are also<\/p>\n
satisfied. Merely because an order of revocation is passed under<\/p>\n
Section 13(1) of the KAAPA, no new grounds of detention are<\/p>\n
W.P.(Crl.)No.321\/09                  -11-<\/span><\/p>\n
granted under Section 13(2). The detaining authority must still<\/p>\n
be satisfied about the existence of the twin grounds of<\/p>\n
satisfaction under Section 3. There is an additional requirement<\/p>\n
when there is a revocation of an earlier order of detention, that<\/p>\n
Section 13(2) must also be satisfied before such fresh order of<\/p>\n
detention is passed.\n<\/p>\n
      12. This position of law is not seriously disputed.    The<\/p>\n
learned ADGP only contends that all requirements of Section 3<\/p>\n
have been satisfied before passing the order of detention. In<\/p>\n
addition, the requirements of Section 13(2) are also satisfied in<\/p>\n
the instant case, contends the learned ADGP. The learned ADGP<\/p>\n
further argues that it cannot be contended that in view of the<\/p>\n
earlier order of revocation dated 22.8.2008 no further order<\/p>\n
under Section 3 of the KAAPA can at all be passed. We agree<\/p>\n
with the learned ADGP.     We shall later go into the question<\/p>\n
whether the requisite latter subjective satisfaction is properly<\/p>\n
entertained before passing the order under Section 3 of the<\/p>\n
KAAPA or not.\n<\/p>\n
      13. The learned ADGP contends that in a case where the<\/p>\n
W.P.(Crl.)No.321\/09                   -12-<\/span><\/p>\n
order has been revoked under Section 13(1), in cases falling<\/p>\n
under clause (i) of Section 13(2) involvement in an offence of the<\/p>\n
nature described under Section 2(o) or 2(p) of the KAAPA at least<\/p>\n
in one subsequent instance is ipso facto sufficient to induce the<\/p>\n
latter subjective satisfaction. We are unable to agree with the<\/p>\n
learned ADGP on this aspect. A satisfaction under Section 3 of<\/p>\n
the KAAPA in all its rigour must be entertained – i.e., both the<\/p>\n
initial objective satisfaction as well as the latter subjective<\/p>\n
satisfaction, before an order of detention is passed under Section<\/p>\n
3. Section 13(2)(i) cannot be held to dispense with or substitute<\/p>\n
the requirement of the latter subjective satisfaction under Section<\/p>\n
3. The challenge on the first ground is so answered in favour of<\/p>\n
the detenu.\n<\/p>\n
      14. Ground No.2: The learned counsel for the petitioner<\/p>\n
contends that revocation under Section 10(4) of the KAAPA is<\/p>\n
totally different in nature, content and quality to the revocation<\/p>\n
under Section 13(1). According to the learned counsel, Section<\/p>\n
13(1) speaks of voluntary revocations by the Government on its<\/p>\n
own. This may happen in cases falling under clauses (ii) and (iii)<\/p>\n
W.P.(Crl.)No.321\/09                    -13-<\/span><\/p>\n
of Section 13(2). The Government may on its own revoke an<\/p>\n
order of detention on any appropriate ground. On the realisation<\/p>\n
that there was really no sufficient ground or on the satisfaction<\/p>\n
that that there has been procedural inadequacies or on any other<\/p>\n
appropriate ground the Government may on its own revoke an<\/p>\n
order of detention before the period of detention has expired.<\/p>\n
Basically, Section 13(1) postulates voluntary revocations by the<\/p>\n
Government in its discretion and not obligatory or mandatory<\/p>\n
revocations under Section 10(4) of the Act, contends counsel.<\/p>\n
      15. We find considerable force in this contention of the<\/p>\n
learned counsel for the petitioner.       Though, the expression<\/p>\n
employed in Sections 10(4), 13(1) and 13(2) is all “revocation”,<\/p>\n
it would be idle to assume that revocation under Section 10(4)<\/p>\n
would fall within the sweep of the expression “revocation” either<\/p>\n
under Section 13(1) or under Section 13(2). The scheme of the<\/p>\n
KAAPA read in the light of Article 22 reveals that Advisory Board’s<\/p>\n
opinion must be taken in all cases of detention. If the Advisory<\/p>\n
Board reports that there is sufficient cause for the detention of a<\/p>\n
person, the Government under Section 10(4)of the KAAPA has<\/p>\n
W.P.(Crl.)No.321\/09                  -14-<\/span><\/p>\n
the discretion to pass an order of confirmation or not. But, in a<\/p>\n
case where the Advisory Board reports that in its opinion no<\/p>\n
sufficient cause is there for the detention of a person, the<\/p>\n
Government is bound to revoke the order of detention.     That is<\/p>\n
revocation different in quality, content and nature than the<\/p>\n
voluntary revocation under Section 13 of the KAAPA .      Under<\/p>\n
Section 10(4), though called revocation, it virtually amounts to<\/p>\n
setting aside of the order of detention by an Advisory Board<\/p>\n
constituted under Section 8 of the KAAPA read with Article 22 of<\/p>\n
the Constitution.    The Advisory Board has to consider the<\/p>\n
materials and render a decision as to whether there is sufficient<\/p>\n
cause to justify the detention. That decision has to be conveyed<\/p>\n
to the Government as the opinion of the Advisory Board. When a<\/p>\n
negative opinion is given by the Advisory Board, the Government<\/p>\n
has no discretion whatsoever and Section 10(4) mandates that<\/p>\n
the Government shall revoke the order of detention.<\/p>\n
      16. We have no hesitation to agree that the revocation<\/p>\n
contemplated under Sections 13(1) and (2) does not include the<\/p>\n
revocation under Section 10(4) of the KAAPA. We are supported<\/p>\n
W.P.(Crl.)No.321\/09                      -15-<\/span><\/p>\n
in this conclusion by the decision of the Bombay High Court in<\/p>\n
Amritlal Shah v. State of Maharashtra (1986 Cri.L.J.1587)<\/p>\n
DB. The following observations in that decision in paragraphs<\/p>\n
14, 16 and 18 are of relevance. Their Lordships were considering<\/p>\n
identical provisions of the COFEPOSA in Section 8(f) and Section<\/p>\n
11(2).\n<\/p>\n
      “14. Mr.Gumaste contended that since there are no<\/p>\n
             words of limitation in sub-sec.(2) of S.11 of the<\/p>\n
             COFEPOSA Act even in cases where the<\/p>\n
             Advisory Board has given its opinion in favour<\/p>\n
             of the detenu, a fresh order of detention can<\/p>\n
             still be passed. We are unable to agree that a<\/p>\n
             fresh order of detention can be passed if the<\/p>\n
             order of revocation is made under the duty cast<\/p>\n
             upon the appropriate Government under S.8(f)<\/p>\n
             of the COFEPOSA Act. The said provision states<\/p>\n
             that “………in every case where the Advisory<\/p>\n
             Board has reported that there is in its opinion<\/p>\n
             no sufficient cause for the detention of the<\/p>\n
W.P.(Crl.)No.321\/09                       -16-<\/span><\/p>\n
             person concerned, the appropriate Government<\/p>\n
             shall revoke the detention order and cause the<\/p>\n
             person to be released forthwith.” The order of<\/p>\n
             revocation which is passed under S.8(f) is an<\/p>\n
             order which the appropriate Government is<\/p>\n
             obliged to pass. There is no alternative to the<\/p>\n
             revocation of the detention order.       If the<\/p>\n
             appropriate Government does not discharge its<\/p>\n
             duty under S.8(f), a further writ can be issued<\/p>\n
             to it for discharging its duty.\n<\/p><\/blockquote>\n
      16. But, however, the question still remains as to<\/p>\n
             whether a fresh order of detention can be<\/p>\n
             passed against the same detenu.         In our<\/p>\n
             opinion, to hold that this can be done is to set<\/p>\n
             at naught the provisions contained in Art.22(4)<\/p>\n
             of the Constitution. If a person is required to<\/p>\n
             be released consequent to a report of the<\/p>\n
             Advisory Board which is adverse to the order of<\/p>\n
             detention, we do not see how the same person<\/p>\n
W.P.(Crl.)No.321\/09                      -17-<\/span><\/p>\n
             can be detained again unless there are fresh<\/p>\n
             grounds for his detention. Such fresh orders of<\/p>\n
             detention will set at naught the protection<\/p>\n
             which is afforded to citizens by insisting that no<\/p>\n
             order of detention can enure beyond a period of<\/p>\n
             three months if such detention has not been<\/p>\n
             approved by the Advisory Board.\n<\/p><\/blockquote>\n
      18. ……..     …….. In our opinion, therefore,<\/p>\n
             considering these aspects of Art.22(4) of the<\/p>\n
             Constitution and the effect of the report made<\/p>\n
             by an Advisory Board and of the opinion<\/p>\n
             expressed by it as provided for, in keeping with<\/p>\n
             the   requirement     of    Art.22(4)    of    the<\/p>\n
             Constitution, in the different laws of preventive<\/p>\n
             detention, no order of detention can be passed<\/p>\n
             against a detenu who has been released under<\/p>\n
             S.8(f) of the COFEPOSA Act unless there are<\/p>\n
             fresh grounds for his detention.”\n<\/p><\/blockquote>\n
                                         (emphasis supplied)<\/p>\n
W.P.(Crl.)No.321\/09                  -18-<\/span><\/p>\n<\/blockquote>\n
      17. A question had arisen before the Supreme Court<\/p>\n
in Ibrahim Bachu Bafan v. State of Gujarat (AIR<\/a> 1985 SC<\/p>\n<\/blockquote>\n
697) as to whether setting aside of an order of detention by the<\/p>\n
High Court or the Supreme Court in exercise of their powers<\/p>\n
under Articles 226 and 32 of the Constitution of India can be held<\/p>\n
to amount to revocation. It has clearly been held that setting<\/p>\n
aside of an order by superior constitutional courts in exercise of<\/p>\n
their power of judicial review cannot be held to amount to<\/p>\n
revocation -i.e., voluntary revocation under Section 11 of the<\/p>\n
COFEPOSA. Similar is the provision in Section 13 of the KAAPA.<\/p>\n<\/blockquote>\n
There is no contention before us that setting aside of an order of<\/p>\n
detention by superior constitutional courts would attract Section<\/p>\n
13(2).     By the reason and logic of the decision in Ibrahim<\/p>\n
Bachu Bafan it has got to be held that a distinction must be<\/p>\n
drawn between obligatory revocation under Section 10(4) of the<\/p>\n
KAAPA and voluntary revocations under Section 13(1).<\/p>\n
      18. Involuntary, obligatory and mandatory revocation<\/p>\n
under Section 10(4) cannot according to us, at any rate, be<\/p>\n
equated to the voluntary and discretionary revocation by the<\/p>\n
W.P.(Crl.)No.321\/09                    -19-<\/span><\/p>\n
Government under Section 13. We have no hesitation, in these<\/p>\n
circumstances, to agree with the learned counsel for the<\/p>\n
petitioner that revocation of an order of detention under Section<\/p>\n
10(4) cannot fall within the sweep of Section 13(1) or (2).<\/p>\n
Ground No.2 is answered in favour of the petitioner.<\/p>\n
      19. Ground No.3: An interesting question arises as to<\/p>\n
whether any further order of detention can be passed under<\/p>\n
Section 3 of the Act when the order is revoked under Section 10<\/p>\n
(4) on the basis of the opinion of the Advisory Board.        Here<\/p>\n
again, the decision in Ibrahim Bachu Bafan (supra) indicates<\/p>\n
the position of law, though that decision dealt not with revocation<\/p>\n
under Section 10(4) of the KAAPA (analogous provision Section 8<\/p>\n
(f) of the COFEPOSA). The decision in Ibrahim Bachu Bafan<\/p>\n
(supra) as also the decision      Chhagan Bhagwan Kahar v.<\/p>\n
N.J.Kalna<\/a> (1989 (2) SCC 318) are authorities of the<\/p>\n
proposition that when an order of detention is quashed by the<\/p>\n
court by issuing a high prerogative writ, the facts\/ grounds on<\/p>\n
the basis of which such an order of detention is passed should not<\/p>\n
be taken into consideration either as a whole or in part, even<\/p>\n
W.P.(Crl.)No.321\/09                    -20-<\/span><\/p>\n
along with fresh grounds of detention for drawing the requisite<\/p>\n
subjective satisfaction to pass a fresh order.         The Hon’ble<\/p>\n
Supreme Court observed thus in paragraph 12:\n<\/p>\n
      “12. It emerges from the above authoritative judicial<\/p>\n
             pronouncements that even if the order of<\/p>\n
             detention comes to an end either by revocation<\/p>\n
             or by expiry of the period of detention there<\/p>\n
             must be fresh facts for passing a subsequent<\/p>\n
             order.    A fortiori when a detention order is<\/p>\n
             quashed by the court issuing a high prerogative<\/p>\n
             writ like habeas corpus or certiorari the grounds<\/p>\n
             of the said order should not be taken into<\/p>\n
             consideration either as a whole or in part even<\/p>\n
             along with the fresh grounds of detention for<\/p>\n
             drawing the requisite subjective satisfaction to<\/p>\n
             pass a fresh order because once the court strikes<\/p>\n
             down an earlier order by issuing rule it nullifies<\/p>\n
             the entire order.”        (emphasis supplied)<\/p>\n<\/blockquote>\n
      20. There can hence be no dispute that on the same<\/p>\n
W.P.(Crl.)No.321\/09                  -21-<\/span><\/p>\n
grounds a fresh order of detention cannot be passed when the<\/p>\n
constitutional courts in exercise of their powers to issue writs<\/p>\n
have quashed an order of detention. By the same principle, we<\/p>\n
are of the view that grounds relied on in the orders revoked on<\/p>\n
the basis of the opinion of the Advisory Board cannot also be<\/p>\n
reckoned as grounds for passing a fresh order of detention. Not<\/p>\n
doing so would be disservice to the mandate of Article 22(4) of<\/p>\n
the Constitution of India.<\/p><\/blockquote>\n
      21. But, in this case, we are not really concerned with that<\/p>\n
situation. Order of detention is not sought to be passed on the<\/p>\n
same grounds or the same circumstances. The order of detention<\/p>\n
is sought to be passed on the basis of the further circumstance<\/p>\n
that has emerged against the detenu in this case, i.e.,<\/p>\n
registration of Crime No.659\/08 and the filing of the final report<\/p>\n
which gave rise to C.P.No.52\/09. We are in agreement with the<\/p>\n
learned counsel for the petitioner that when revocation is under<\/p>\n
Section 10(4), the grounds of detention relied on in the order<\/p>\n
revoked cannot constitute valid grounds to justify passing of a<\/p>\n
fresh order of detention under Section 3. To take any different<\/p>\n
W.P.(Crl.)No.321\/09                   -22-<\/span><\/p>\n
view would be to defeat the mandate of Article 22(4) of the<\/p>\n
Constitution of India. But, if there are fresh grounds justifying<\/p>\n
the passing of a fresh order of detention, the mere fact that there<\/p>\n
was revocation under Section 10(4) of an earlier order of<\/p>\n
detention cannot offer any immunity against detention under<\/p>\n
Section 3. The question then will be whether a fresh order of<\/p>\n
detention can be justified on the fresh grounds that have been<\/p>\n
relied on. We need only state that a fresh order of detention on<\/p>\n
fresh grounds is perfectly possible even when the earlier order is<\/p>\n
revoked under Section 10(4) of the KAAPA.\n<\/p>\n
      22. A question arises about Section 13(2)(i) of the KAAPA.<\/p>\n
Section 13(1) deals with revocation or modification of an order of<\/p>\n
detention by Government. But, Section 13(2) deals not merely<\/p>\n
with revocation, but it deals with expiry of an order of detention<\/p>\n
also. If an order of detention has been passed and the period of<\/p>\n
the said order of detention has expired under Section 12 (or by<\/p>\n
expiry of the period specified in the order of detention), a fresh<\/p>\n
order of detention on the same grounds cannot be justified. But,<\/p>\n
a further fact- involvement in an offence of the nature specified<\/p>\n
W.P.(Crl.)No.321\/09                    -23-<\/span><\/p>\n
under Section 13(2)(i) would lift the bar against passing a fresh<\/p>\n
order of detention. But, even then, Section 13(2)(i) can help<\/p>\n
only to lift the embargo against passing a fresh order of detention<\/p>\n
and cannot substitute or dispense with the requirements under<\/p>\n
Section 3 – of both the initial objective satisfaction as well as the<\/p>\n
latter subjective satisfaction.  To understand this , it must be<\/p>\n
noted that Section 13(1) deals with revocation or modification<\/p>\n
whereas Section 13(2) deals not only with such revocation or<\/p>\n
modification, but also with the expiry of the period of detention<\/p>\n
stipulated under the order of detention. The challenge raised on<\/p>\n
the 3rd ground does in these circumstances succeed.<\/p>\n
      23. Ground No.4: The learned counsel for the petitioner<\/p>\n
contends that there has been no proper application of mind by<\/p>\n
the detaining authority as expected of him under Section 3 of the<\/p>\n
Act. The learned ADGP contends that inasmuch as the impugned<\/p>\n
order is not passed on the basis of the grounds relied on in the<\/p>\n
earlier order revoked under Section 10(4) and has been passed<\/p>\n
on the basis of a subsequent circumstance that has arisen, the<\/p>\n
order of detention is perfectly valid if both the satisfactions<\/p>\n
W.P.(Crl.)No.321\/09                   -24-<\/span><\/p>\n
contemplated under the Section are shown to be validly<\/p>\n
entertained by the detaining authority.      In this context, the<\/p>\n
learned ADGP relies on the fact that the alleged detenu continues<\/p>\n
to be a ‘known rowdy’ taking into account the fifth case – Crime<\/p>\n
No.659\/08 of Fort Police Station, Thiruvananthapuram in which<\/p>\n
the final report has been filed and case registered as<\/p>\n
C.P.No.52\/09.\n<\/p>\n
      24. We are in ready agreement with the learned ADGP<\/p>\n
that if the detenu continues to be a ‘known goonda’ or ‘known<\/p>\n
rowdy’ under Section 3 of the KAAPA and his detention is found<\/p>\n
to be necessary on the basis of the further contumacious acts<\/p>\n
committed by him, certainly a fresh order under Section 3 can be<\/p>\n
passed notwithstanding the revocation of the earlier order under<\/p>\n
Section 10(4). Therefore, the challenge on this ground is only<\/p>\n
whether there has been proper application of mind to come to<\/p>\n
both the satisfactions under Section 3.\n<\/p>\n
      25. The five cases referred above confirm that the alleged<\/p>\n
detenu continues to be a ‘known rowdy’ as defined under Section<\/p>\n
2(p) of the KAAPA.      The   former objective satisfaction can<\/p>\n
W.P.(Crl.)No.321\/09                    -25-<\/span><\/p>\n
therefore be entertained if the existence of the five cases is<\/p>\n
considered by the detaining authority and he entertains the<\/p>\n
requisite satisfaction on the basis of such consideration.     The<\/p>\n
learned counsel for the petitioner contends that before the<\/p>\n
detaining authority, no materials whatsoever relating to the<\/p>\n
previous cases were placed and in these circumstances, the<\/p>\n
detaining authority has not applied his mind properly to the<\/p>\n
question whether the alleged detenu is a ‘known rowdy’ or not.<\/p>\n
      26. The learned counsel for the petitioner further contends<\/p>\n
that there has been significant non-application of mind and there<\/p>\n
exists serious incongruity between the allegations raised in<\/p>\n
Exhibit P4 final report submitted by the police and the statements<\/p>\n
in Exhibit P1 order about the nature of the offence allegedly<\/p>\n
committed by the detenu in Crime No.659\/08. The learned<\/p>\n
counsel points out that the allegation taken note of by the<\/p>\n
detaining authority in Exhibit P1 is that the detenu had assaulted<\/p>\n
the victim in Exhibit P4 with a stone and caused grievous injuries<\/p>\n
to him on 22.10.2008.        The learned counsel points out that<\/p>\n
significantly, this is not the allegation in Exhibit P4 against the<\/p>\n
W.P.(Crl.)No.321\/09                    -26-<\/span><\/p>\n
detenu. In Exhibit P4, the only allegation against the detenu who<\/p>\n
figures as the 2nd accused in that crime is only that he hit the<\/p>\n
victim on his back and chest with hands. The learned counsel for<\/p>\n
the petitioner contends that the allegation of hitting the victim<\/p>\n
with a stone is raised in Exhibit P4 only against the first accused<\/p>\n
in that crime      and not against the detenu in this case.    The<\/p>\n
learned counsel argues that in not having precisely applied his<\/p>\n
mind to the crucial allegation against the detenu in Exhibit P4 and<\/p>\n
in having made different allegations against the detenu in Exhibit<\/p>\n
P1, there is significant and total absence of application of mind<\/p>\n
alertly by the detaining authority.     This vitiates the order of<\/p>\n
detention, contends the learned counsel for the petitioner. We<\/p>\n
find force in that contention.\n<\/p>\n
      27. The learned counsel for the petitioner submits that the<\/p>\n
order of detention which is supported by the grounds in Exhibit<\/p>\n
P2 have been prepared without proper application of mind. In<\/p>\n
this context, the learned counsel relies on the decision of the<\/p>\n
Hon’ble Supreme Court in Rajesh Vashdev v. State of<\/p>\n
Maharashtra 2006(1)KLT 408(SC) to contend that alert<\/p>\n
W.P.(Crl.)No.321\/09                   -27-<\/span><\/p>\n
application of mind is necessary not only when the order of<\/p>\n
detention is prepared and passed, but also while preparing the<\/p>\n
grounds for detention. The learned counsel builds up this<\/p>\n
argument on the basis of the recital in Exhibit P2 that the order<\/p>\n
of detention is passed to detain the detenu for a period of six<\/p>\n
months.      The learned counsel argues that if detention were<\/p>\n
ordered under Exhibit P1 for a specified period of six months,<\/p>\n
that would have offended the mandate of Anitha Bruse v. State<\/p>\n
of Kerala<\/a> (2008(2) KLT 857) and would have been set aside<\/p>\n
for that reason itself. The learned counsel argues that Exhibit P2<\/p>\n
grounds for detention which accompanied Exhibit P1 thus reveals<\/p>\n
absence of application of mind. The impugned order is liable to<\/p>\n
be set aside on this ground, contends the learned counsel. We<\/p>\n
find force in this contention also. The nature of the allegations<\/p>\n
narrated and taken cognizance of by the detaining authority in<\/p>\n
Exhibit P1 does not rhyme well with the precise allegations raised<\/p>\n
against the detenu in Exhibit P4 charge sheet.\n<\/p>\n
      28. The learned counsel for the petitioner further contends<\/p>\n
that there has been a snapping of the nexus between the alleged<\/p>\n
W.P.(Crl.)No.321\/09                   -28-<\/span><\/p>\n
contumacious act committed on 22.10.2008 and the order of<\/p>\n
detention passed on 30.6.2009.      The learned counsel submits<\/p>\n
that the live link between the alleged act and the order of<\/p>\n
detention must be held to be snapped because of the elapse of a<\/p>\n
period exceeding eight months from the date of the alleged act.<\/p>\n
      29. The learned counsel for the petitioner submits that the<\/p>\n
detaining authority was conscious of this long gap of time<\/p>\n
between the alleged contumacious act on 22.10.2008 and the<\/p>\n
order of detention dated 30.6.2009. That gap of time was sought<\/p>\n
to be explained by the detaining authority by a curious statement<\/p>\n
that “it can be because of the apprehension of threats from him<\/p>\n
and his associates to the victims and witnesses as reported by<\/p>\n
the Deputy Commissioner of Police(Law and Order), Trivandrum<\/p>\n
City.” The learned counsel for the petitioner submits that the<\/p>\n
explanation offered for this long gap of time between 22.10.2008<\/p>\n
and 30.6.2009 is not legally sufficient or satisfactory.       The<\/p>\n
learned counsel submits that it is non-existent as there is nothing<\/p>\n
to indicate that any other incident had taken place and the<\/p>\n
victims have refrained from complaining because of the<\/p>\n
W.P.(Crl.)No.321\/09                   -29-<\/span><\/p>\n
apprehension of threats from the detenu or his associates. The<\/p>\n
explanation offered is a non-existent one. There are no materials<\/p>\n
to support the said allegation which is pressed into service to<\/p>\n
justify the gap of time between 22.10.2008 and 30.6.2009. The<\/p>\n
learned counsel for the petitioner has taken us through Exhibit P3<\/p>\n
report in detail to point out that there is no specific allegation<\/p>\n
whatsoever that any incident had taken place after 22.10.2008<\/p>\n
and before 30.6.2009 about which complaints were not made by<\/p>\n
the alleged victims on account of such alleged fear against the<\/p>\n
detenu or his associates.\n<\/p>\n
      30. For all these reasons, we are persuaded to agree that<\/p>\n
there is merit in the contention that there has been no proper<\/p>\n
application of mind by the detaining authority before passing the<\/p>\n
impugned fresh order of detention. The challenge on this ground<\/p>\n
thus succeeds.\n<\/p>\n
      31. Ground No.5: The learned counsel for the petitioner<\/p>\n
finally contends that the impugned order is bad for the reason<\/p>\n
that copies of relevant documents have not been furnished to the<\/p>\n
detenu. First of all, it is contended that the detaining authority<\/p>\n
W.P.(Crl.)No.321\/09                    -30-<\/span><\/p>\n
erroneously assumed that the order is being passed in exercise of<\/p>\n
the power to order detention available under section 13(2) of the<\/p>\n
KAAPA. We have already considered this question while dealing<\/p>\n
with Ground No.1. The detaining authority hence did not apply<\/p>\n
his mind to the relevant documents relating to crime Nos.1 to 4<\/p>\n
referred to in paragraph 2. This is evident from the further fact<\/p>\n
that the documents relating to Crime Nos.203\/04, 142\/02,<\/p>\n
147\/02 and 81\/07 were not relied on by the detaining authority<\/p>\n
as relevant documents. In continuation of the same error, the<\/p>\n
detaining authority has omitted to furnish to the detenu<\/p>\n
documents relating to these crimes 1 to 4. Thus, it is contended<\/p>\n
that the satisfaction that the petitioner is a ‘known rowdy’ has<\/p>\n
been entertained by the detaining authority without perusing the<\/p>\n
relevant documents.    At any rate, a grievous error is committed<\/p>\n
in not having furnished those documents to the detenu under<\/p>\n
section 7(2). We note that no documents relating to any crime<\/p>\n
other than the 5th crime, Crime No.659\/08 had been furnished to<\/p>\n
the detenu under section 7(2).        We agree with the learned<\/p>\n
counsel for the petitioner that this is a crucial and vital lapse on<\/p>\n
W.P.(Crl.)No.321\/09                   -31-<\/span><\/p>\n
the part of the detaining authority.\n<\/p>\n
      32. The learned counsel for the petitioner then contends<\/p>\n
that even assuming that there is a power of detention under<\/p>\n
section 13(2) different from Section 3, the previous order of<\/p>\n
detention and the order of revocation of that detention must have<\/p>\n
been relied on and copies must have been furnished to the<\/p>\n
detenu. Admittedly, under section 7(2), the previous order of<\/p>\n
detention dated 31.3.2008 or the order of revocation dated<\/p>\n
22.8.2008 have not been furnished to the detenu. This again is<\/p>\n
found by us amount to denial of the right to have the relevant<\/p>\n
documents communicated under Article 22(5) of the Constitution<\/p>\n
of India and under section 7(2) of the KAAPA.\n<\/p>\n
      33. The learned counsel for the petitioner then contends<\/p>\n
that reliance is placed on the report of the Advisory Board. The<\/p>\n
copy of the report has not been furnished. Of course, section 10<\/p>\n
(3) of the KAAPA makes it clear that the report of the Advisory<\/p>\n
Board is confidential except a limited portion of such report, i.e.,<\/p>\n
the opinion.      If the same cannot be furnished to the detenu,<\/p>\n
evidently reliance cannot be placed on such report of the<\/p>\n
W.P.(Crl.)No.321\/09                     -32-<\/span><\/p>\n
Advisory Board. Moreover, in this case, we note that even the<\/p>\n
non-confidential portion of the Advisory Report – or even the<\/p>\n
order passed under section 10(4) in furtherance of such report<\/p>\n
have not been furnished to the detenu. This again we find is a<\/p>\n
crucial lapse.\n<\/p>\n
      34. A contention is raised that the Advisory Board has<\/p>\n
given the opinion that a fresh order can be passed on the same<\/p>\n
grounds. If as already held by us under Ground No.3, a fresh<\/p>\n
order cannot be passed on the very same ground, after order of<\/p>\n
revocation under section 10(4) is passed, observations contra<\/p>\n
made by the Advisory Board are of no relevance. In this context,<\/p>\n
we note       that the Advisory Board’s report is not furnished at all<\/p>\n
to the detenu and reliance placed on the observation of the<\/p>\n
Advisory Board in the confidential opinion rendered by it cannot<\/p>\n
be relied on to justify Exhibit P1 order. We find support for this<\/p>\n
conclusion in the observations of the Division Bench of the<\/p>\n
Bombay High Court in         Amritlal Shah(supra).       We extract<\/p>\n
paragraph 18 below:\n<\/p>\n
             “18. That apart, if the appropriate Government<\/p>\n
W.P.(Crl.)No.321\/09                     -33-<\/span><\/p>\n
             is free to take a fresh step in the direction of<\/p>\n
             detaining a person by its interpretation of the<\/p>\n
             opinion given by the Advisory Board, it will be a<\/p>\n
             great injustice to the citizen concerned.      In<\/p>\n
             every law of preventive detention the report of<\/p>\n
             the   Advisory    Board  is   required   to   be<\/p>\n
             confidential.   If the appropriate Government<\/p>\n
             decides to take a fresh action on the basis of its<\/p>\n
             own interpretation or reading of the report of<\/p>\n
             the Advisory Board, how is a citizen able to<\/p>\n
             challenge    the  action  of   the   appropriate<\/p>\n
             Government? The contents of the report of the<\/p>\n
             Advisory Board are a closed book as far as the<\/p>\n
             citizen is concerned.”<\/p><\/blockquote>\n
      35. On the basis of the above discussions, we uphold the<\/p>\n
challenge raised against the impugned order under Ground No.5<\/p>\n
also.\n<\/p>\n
      36. In the light of our findings under grounds 1 to 5, it<\/p>\n
follows that the impugned order deserves to be set aside.<\/p>\n
W.P.(Crl.)No.321\/09                      -34-<\/span><\/p>\n
      37. In the result:\n<\/p>\n
      (a)    this Writ Petition is allowed.\n\n      (b)    the impugned order of detention is set aside.\n\n      (c)    If the detention of the detenu is not necessary in any\n\n<\/pre>\n
other case, he shall forthwith be released from custody by the<\/p>\n
prison authorities.\n<\/p>\n
      (d)    The Registry shall forthwith communicate the order to<\/p>\n
the prison authorities.\n<\/p>\n<\/p>\n
                                         R.BASANT, JUDGE.\n<\/p>\n
                                         M.C.HARI RANI, JUDGE.\n<\/p>\n
dsn<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Praseetha vs The State Of Kerala on 16 September, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(Crl.).No. 321 of 2009(S) 1. PRASEETHA, W\/O. K. SYAMKUMAR, … Petitioner Vs 1. THE STATE OF KERALA, REP. BY ADDITIONAL … Respondent 2. THE DISTRICT COLLECTOR & DISTRICT 3. THE CHAIRMAN, KERALA ANTI-SOCIEAL 4. […]<\/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-239067","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nPraseetha vs The State Of Kerala on 16 September, 2009 - 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\/praseetha-vs-the-state-of-kerala-on-16-september-2009-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Praseetha vs The State Of Kerala on 16 September, 2009 - 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