Kerala High Court
Shruthi P. vs State Of Kerala on 6 October, 2009
  IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 323 of 2009(S)
1. SHRUTHI P., W/O.RAVI.K.,
                      ...  Petitioner
                        Vs
1. STATE OF KERALA,
                       ...       Respondent
2. DISTRICT MAGISTRATE
3. SUPERINTENDENT, CENTRAL PRISON,
                For Petitioner  :SRI.BECHU KURIAN THOMAS
                For Respondent  :GOVERNMENT PLEADER
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
 Dated :06/10/2009
 O R D E R
                R.BASANT & M.C.HARI RANI, JJ.
                     ------------------------------------
                    W.P(Crl.) No.323 of 2009
                     -------------------------------------
              Dated this the 6th day of October, 2009
                              JUDGMENT
BASANT, J.
What is the nature and quality of consideration which a representation made by a detenu under
Article 22(5) of the Constitution of India and Section 7(2) of the Kerala Anti-social Activities
(Prevention) Act, 2007 (hereinafter referred to as the `KAAPA') must receive at the hands of the
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Government? Does the failure to give a real and proper consideration by the Government vitiate
continued detention? These questions arise mainly for consideration in this Writ Petition.
(2) In this application for issue of a writ of habeas corpus filed under Article 226 of the Constitution
of India, the petitioner, the wife of the detenu, assails Ext.P1 order of detention passed under
Section 3(1) of the KAAPA against the detenu.
2. The petitioner is the wife of K.Ravi, the detenu. The detenu was involved in as many as 5 cases;
the details of which are given below:
Case No. Date of Offences Status of Final Relevant offence alleged the case report
document filed by Sl. the police No C.C.953/06 between 454,380,461 acquitted
Ext.P6 26.02.2006 I.P.C and 1 03.03.2006 11/11/08 C.C.255/08 341, 323, pending
trial Ext.R2(k) Ext.P7 324 r/w 34 on 02.07.09 I.P.C (but compounded 2 03/02/08 on
28.07.09) C.C.509/08 341, 323, pending trial Ext.R2(j) Nil 294 (b) r/w 3 02/05/08
34 I.P.C C.P.237/08 427, 506(i) pending trial Ext.R2(h) Nil & 308 I.P.C 4 07/09/08
S.T.C.758 160 I.P.C Pleaded Nil Nil of 2008 guilty on 18.11.2008.
Rs.100/-
5 11/07/08 imposed
3. The Superintendent of Police, Kasargod, by his report under Section 3(1) of the
KAAPA dated 23.01.09 [copy produced as Ext.R2(g)], submitted a proposal to the
2nd respondent (District Magistrate) to invoke the powers under Section 3(i) of the
KAAPA to detain the detenu. Accepting the report of the sponsoring authority, Ext.P1
order of detention was passed on 16.02.2009. The order could not be executed for
some time. Finally in execution of Ext.P1 order, the detenu was arrested and detained
on 02.07.2009. Copies of the order and grounds were furnished to the detenu in due
time and the detenu submitted Ext.R2(m) representation dated 08.07.09 to the
Government. That representation submitted through the prison authorities was
received by the prison authorities on 08.07.09 and it was forwarded to the
Government. The Government allegedly received the same on 13.07.09. In the
meantime, Ext.P5 order of approval dated 10.07.09 was passed by the Government
under Section 3(3) of the KAAPA. After receipt of Ext.R2(m) representation, the
Government, by Ext.P8 order dated 17.07.09, rejected the said representation. In
accordance with the provisions of the KAAPA, the Advisory Board considered the
matter and opined to the Government that there was sufficient reason to justify
detention.
Accordingly Ext.R1(a) order dated 26.08.09 was passed by the Government confirming the order of
detention under Section 10(4) of the KAAPA. Accordingly the detenu will have to remain in custody
for a period of 6 months from 02.07.09. It is at this juncture that we are called upon to consider the
request of the petitioner, the wife of the detenu to set aside the order of detention and to set the
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detenu at liberty.
4. We have heard the learned counsel for the petitioner and the learned Additional Director General
of Prosecution. The learned counsel for the petitioner assails the impugned order and the continued
detention on the following: GROUNDS I) 2 of the 5 cases referred above should not at all have been
reckoned as relevant to decide whether the detenu is a known goonda or a known rowdy.
II) The remaining 3 cases also do not bring the detenu within the sweep of the expression "known
goonda/known rowdy" inasmuch as there is no allegation therein of the detenu having been
involved in any organised crime affecting public order.
III) The alleged contumacious acts even if true could not have instilled the latter subjective
satisfaction under Section 3 of the KAAPA in the mind of the authorities that there was any threat to
public order.
IV) There has been no proper application of mind by the sponsoring authority or the detaining
authority before passing Ext.P1 order.
V) The Government before passing the order of approval under Section 3(3) had not applied its
mind properly and correctly.
VI) The valuable right of the detenu under Article 22(5) of the Constitution of India and Section 7(2)
of the KAAPA to get his representation Ext.R2(m) considered properly by the Government has been
violated by the Government in passing Ext.P8 order.
Ground No.I
5. The objection is raised regarding case No.1 and Case No.5 shown in the tabular column given
above. The order of detention Ext.P1 was dated 16.02.2009. The report of the sponsoring authority
Ext.R2(g) was submitted on 23.01.09. Case No.1 had ended in acquittal on merits as early as on
11.11.08. Case No.5 had also come to an end on 18.11.2008 on which day plea of guilty of the detenu
was accepted and a fine of Rs.100/- was imposed on him. Both these cases were not current and live
on the dates of Ext.R2(g) and Ext.P1. The sponsoring authority erred grossly in assuming that these
cases are pending. The detaining authority also erred in accepting the sponsoring authority's report
that these 2 cases are pending. For the reason that these 2 cases were not pending on the dates of
Ext.R2(g) and Ext.P1, the action of the sponsoring authority and the detaining authority is vitiated.
Moreover it is submitted that the 5th case in which allegation is raised only under Section 160 I.P.C
is not a case which can bring an offender within the sweep of the definition of a `known goonda or
known rowdy' under Section 2(o) or 2(p) of the KAAPA.
6. We are in ready agreement with the learned counsel for the petitioner. Cases 1 and 5 having been
disposed of long prior to Ext.R2(g) and Ext.P1, those should not have been taken into reckoning
while considering whether the detenu is a known goonda or known rowdy on 16.02.09, the date of
the order of detention. Further, the counsel is well founded in his contention that a prosecution
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under Section 160 I.P.C cannot bring a person within the sweep of a rowdy, goonda, known goonda
or known rowdy under Sections 2(j), 2(t), 2(o) or 2(p) of the KAAPA.
7. Though we agree with the contention of the learned counsel for the petitioner on this first ground,
we are afraid that the detenu cannot claim any benefit on the basis of the said finding as cases 2 to 4,
three in number, all of which were pending on the dates of Ext.R2(g) and Ext.P1, would certainly
bring the detenu within the sweep of the expression `rowdy' in Section 2(t), `goonda' in Section 2(j)
and `known goonda' in Section 2(o) of the KAAPA subject of course to our finding under Ground
No.II. The prayer to invalidate the order of detention and the consequent detention on ground No.1
must, in these circumstances, fail.
Grounds II and III
8. For the sake of convenience, we are considering the challenge on grounds II and III together.
Under ground II it is contended that the remaining 3 cases should not have been taken into
consideration and they could not have brought the detenu within the sweep of the expression
`known goonda'. The crux of the contention is that the said 3 offences are not offences which reveal
commission of any organised crime.
9. Under Ground No.III it is contended that inasmuch as reference is made to case Nos.II to IV, to
justify entertainment of the latter subjective satisfaction, the order is vitiated because these 3 cases
do not reveal any threat to public order and at worst what is revealed is only a threat to law and
order.
10. The learned counsel for the petitioner places reliance on the statement of objects and reasons
which prompted the legislature to pass the KAAPA. Reliance is placed particularly on paragraphs 1
and 2 of the statement of objects and reasons, which are extracted below:
"Organised criminal activity has become a threat to both the economic and physical
security of the State and Citizen. These activities thrive by pre- planned organisation,
criminal networking and the profits generated from unlawful activities. These type of
criminal activities create a feeling of insecurity in the society by intimidating or
attacking law abiding citizens who oppose or give evidence against them. These
organised criminals foil successful investigation and successful prosecution by
exploiting the safeguards provided in general law to protect the average citizens
against misuse of authority by official functionaries.
(2) The existing laws are inadequate in preventing and controlling the organised
criminal activity. Hence it became imperative to enact a legislation to prevent and
control the organised anti- social activities in the State."
11. The counsel further contends that the definition of a `goonda' in Section 2(j) as also the
definition of `antisocial activity' in Section 2(a) and the definition of rowdy in Section 2
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(t) must assume importance and significance in this context. We extract below Section 2(a), 2(j) and
2(t) of the KAAPA.
Section 2(a): `Anti Social Activity' means acting in such manner as to cause or likely to cause,
directly or indirectly, any feeling of insecurity, danger or fear among the general public or any
section thereof, or any danger to safety of individuals, safety of public, public health or the ecological
system or any loss or damage to public exchequer or to any public or private property or indulges in
any activities referred in clauses (c), (e),
(g), (h), (i), (l), (m), (n), (q), and (s) of this section.
Section 2(j): `Goonda' means a person who indulges in any anti-social activity or promotes or abets
illegal activities which are harmful for the maintenance of the public order directly or indirectly and
includes a bootlegger, a counterfeiter, a depredator or environment, a digital data and copy right
pirate, a drug offender, an Hawala racketeer, an hired ruffian, rowdy, an immoral traffic offender, a
loan shark or a property grabber."
Section 2(t): "2(t) "rowdy" means and includes a person who either by himself or as a member of a
gang commits or attempts to commit, or abets the commission of any offences under Sections 153A
and 153B of Chapter VIII and Chapters XV, XVI, XVII & XXII of the Indian Penal Code,
1860(Central Act 45 of 1860), or any offences under the provision of the Arms Act, 1959 (Central Act
54 of 1959), or the Explosive Substances Act, 1908 (Central Act 6 of 1908),
(i) punishable with five or more years of imprisonment of any type, or;
(ii) with less than five years of imprisonment of any type, except those punishable with less than one
year of imprisonment; or
(iii) such offences under any other law for the time being in force, coming under item (i) or (ii), as
may be notified by the Government, from time to time.
(emphasis supplied)
12. The learned counsel for the petitioner points out that the KAAPA is enacted by the Kerala
legislature in exercise of its legislative competence as per Entry 3 of List III of Schedule 7 of the
Constitution of India, which we extract below:
"Preventive detention for reasons connected with the security of a State, the
maintenance of public order, or the maintenance of supplies and services essential to
the community; persons subjected to such detention."
(emphasis supplied) `Maintenance of public order' is the only ground on which the
legislative competence to order detention of the detenue on the basis of 3 cases -
cases 2 to 4 referred above, can be justified.
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The counsel contends that inasmuch as the said cases 2 to 4 do not reveal any organised criminal
activity, they cannot be reckoned as sufficient to bring the alleged activity within the sweep of
Section 2(a) and consequently to bring the detenu within the sweep of the expression 2(j) of the
KAAPA.
13. The counsel in this context places reliance on the decision of a Division Bench of this Court in
Nisha Salim v. State of Kerala [2009(3) KLT 22]. In particular reliance is placed on para.8 and 8(a)
of the said decision, which we extract below.
"Para.8: It is undoubtedly true that personal liberty of a person cannot be trifled with
by the Police or the executive authority at their whims and fancies. The power of
detention has to be exercised by an authority authorised under law with utmost
diligence and caution. The order of detention has to satisfy the test of reasonableness
and fair play. The detaining authority has to arrive at the subjective satisfaction about
the imperative need to detain a person after due application of mind. All the inputs
gathered by the detaining authority must lead to the irresistible conclusion that the
freedom of movement enjoyed by the detenu may be misused by him to create havoc
or breach of peace in the society, thereby putting the peaceful life of the people in
peril. It would be a shame if the law enforcing authorities throw up their arms in
desperation saying that a particular individual in a given area or locality cannot be
controlled by the Police force. The Indian Penal Code and other relevant enactments
should, under normal circumstances, take care of situations which may have a
propensity to disturb the peaceful life of the local people. The Magisterial powers
given under the Code of Criminal Procedure are also sufficient to tackle any untoward
situations. The Police authorities are given wide powers under the Police Act and
other allied enactments to see that "law and order" and public order are maintained.
If an individual creates any law and order problem, he can be dealt with by the Police
using the powers vested in them.
8A. It is true that preventive detention can become a draconian power if it is wielded
by the executive or the Police at the drop of a hat. The threat to the society from the
proposed detenue should be such that his activities cannot be controlled, or curtailed
by using the ordinary means of prevention. It is trite that no citizen can be put behind
the bars on the specious ground that he is likely to cause breach of peace in the
locality or he may commit some crime in future, if he is allowed to move about freely.
As contended by the learned counsel involvement of a person in "several cases" may
not as such be a ground to use the power of preventive detention, particularly when
the crimes allegedly registered against him are still under investigation."
14. According to the learned counsel inasmuch as the allegations raised in cases 2 to 4 do not reveal
the commission of any organised crime, they cannot be reckoned at all as relevant to decide whether
the detenu is a rowdy and consequently a goonda and a known goonda.
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15. The learned counsel for the petitioner contends that the distinction between threat to law and
order and threat to public order must be alertly borne in mind by this Court while considering the
challenge raised on the basis of these two grounds. The allegations raised against the detenu in cases
2 to 4, even if accepted in toto, do not reveal any organised criminal activity or threat to
maintenance of public order and consequently those 3 cases should not have been taken into
consideration to entertain the initial threshold objective satisfaction - as to whether the detenu is a
known goonda or a known rowdy. They should not, at any rate, have been taken into consideration
for entertaining the latter subjective satisfaction - as to whether the detenue deserves to be detained
to prevent him from indulging in antisocial activities, contends counsel.
16. It will only be apposite straight away to consider the precedents relied on by the learned counsel
for the petitioner. The counsel first of all relies on the observations of the Supreme Court in Arun
Ghosh v. State of W.B [(1970) 1 SCC 98] (para.15) which are stated with approval in the later
decision Ajay Dixit v. State of U.P [(1984) 4 SCC 400. We extract the same below:
"It means therefore that the question whether a man has only committed a breach of
law and order or has acted in a manner likely to cause a disturbance of the public
order is a question of degree and the extent of the reach of the act upon the society.
The French distinguish law and order and public order by designating the latter as
order publique. The latter expression has been recognised as meaning something
more than ordinary maintenance of law and order. Justice Ramaswami in Writ
Petition 179 of 1968 drew a line of demarcation between the serious and aggravated
forms of breaches of public order which affect the community or endanger the public
interest at large from minor breaches of peace which do not affect the public at large.
He drew an analogy between public and private crimes. The analogy is useful but not
to be pushed too far. A large number of acts directed against persons or inividuals
may total up into a breach of public order. In Dr.Ram Manohar Lohia case 1
examples were given by Sarkar, and Hidayatullah, JJ. They show how similar acts in
different contexts affect differently law and order on the one hand and public order
on the other. It is always a question of degree of the harm and its effect upon the
community. The question to ask is : Does it lead to disturbance of the current of life
of the community so as to amount to a disturbance of the public order or does it
affect merely and individual leaving the tranquility of the society undisturbed ? This
question has to be faced in every case on facts. There is no formula by which one case
can be distinguished from another."
17. The counsel then relies on the following observations in para.12 and 13 in Angoori Devi v. Union
of India [(1989) 1 SCC 385] to highlight the distinction between threat to law and order from a
threat to maintenance of public order.
"Para.12: The impact on "public order" and "law and order" depends upon the nature
of the act, the place where it is committed and motive force behind it. If the act is
confined to an individual without directly or indirectly affecting the tempo of the life
of the community, it may be a matter of law and order only. But where the gravity of
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the act is otherwise and likely to endanger the public tranquility, it may fall within the
orbit of the public order. This is precisely the distinguishing feature between the two
concepts. Sometimes, as observed by Venkatachaliah, J. in Ayya alias Ayub v. State of
U.P: "What might be an otherwise simple `law and order' situation might assume the
gravity and mischief of a `public order' problem by reason alone of the manner or
circumstances in which or the place at which it is carried out.". Necessarily, much
depends upon the nature of the act, the place where it is committed and the sinister
significance attached to it.
            Para.13: As      for    example   dare-devil
      repeated    criminal    acts,  open   shoot   out,
throwing bomb at public places, committing serious offences in public transport,
armed persons going on plundering public properties or terrorising people may
create a sense of insecurity in the public mind and may have an impact on "public
order". Even certain murder committed by persons in lonely places with the definite
object of promoting the cause of the party to which they belong may also affect the
maintenance of `public order'."
18. It is now trite that before a valid order of detention is passed under Section 3 of the KAAPA, the
detaining authority must first entertain the requisite twin satisfactions. Firstly the initial objective
satisfaction must be entertained that the detenu is a known goonda or known rowdy. Then the
authority must entertain the latter subjective satisfaction that detention of the detenu is necessary to
prevent such detenu from indulging in antisocial activity. Only when both satisfactions are validly
entertained on the basis of the materials available before him, can the detaining authority pass a
valid order of detention under Section 3 of the KAAPA.
19. We are certainly of the opinion that while considering the entertainment of the latter subjective
satisfaction, every detaining authority is bound to consider whether the acts complained of against
the detenu do really pose a threat to maintenance of public order. When the acts alleged are such
that they threaten only the law and order and not public order, they cannot be reckoned as sufficient
to justify an order of preventive detention.
20. But we are unable to agree with the learned counsel for the petitioner in the challenge raised by
him on ground No.II that even while considering whether a person is a rowdy under section 2(t) or
whether he is consequently a goonda under section 2(j) and known goonda or known rowdy under
sections 2(o) and 2(p) , the acts alleged must reveal organised criminal activity and must threaten
public order and not merely law and order.
21. The scheme of the Act must be borne in mind. Undoubtedly to constitute antisocial activity
under section 2(a) and to come within the purview of the descriptive former part of the definition of
goonda in Section 2(j), the acts alleged must threaten maintenance of public order. But the language
of Section 2(t) which we have extracted above does not at all import the requirement that the
offences specified therein must also threaten maintenance of public order and not merely law and
order. The language does not at all insist that the offences under Section 2(t) must be offences
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committed by a person as part of organised criminal activity. The plain language of Section 2(t) does
not permit us to insist on such a requirement. Consequently a `rowdy' who gets include in the
definition of `goonda' in 2(j) by operation of the latter inclusive (deeming) part of the definition
cannot insist that he is not a `rowdy' or `goonda' for the reason that any or all the offences alleged
against him referred to in Section 2(t) do not refer to organised criminal activity or do not threaten
maintenance of public order. A detenu - either a known goonda or known rowdy cannot validly urge
that he is not a known goonda or known rowdy for the reason that the cases relied on against him
under Section 2(t), 2(p) or 2(o) are cases which do not reveal commission of organised crime and
they do not pose any threat to public order. That does not appear to be the scheme of the Act at all.
Initial threshold satisfaction that a person is a known goonda or a known rowdy must certainly be
entertained by the detaining authority. To entertain that, the detenu need only satisfy the definition
of goonda and known goonda or rowdy and known rowdy. The definitions of these expressions in
2(j) (inclusive latter part) and 2(o) as also 2(t) and 2(p) do not at all demand that the offences
referred to therein must also be instances of organised crime or that they must threaten public
order. Such a requirement cannot be read into the definition of `rowdy' in Section 2(t) or known
rowdy in 2(p) or even the definition of goonda in Section 2(j) (inclusive latter half) and known
goonda in 2(o). Of course, we repeat that while considering the latter subjective satisfaction, it will
certainly have to be considered whether the subjective satisfaction of the need to preventively detain
the detenu is entertained on grounds/past conduct which are likely to threaten public order in
future.
22. In these circumstances, we are unable to accept the challenge raised on ground No.II that the
detenu cannot be held to be a known goonda or known rowdy for the reason that cases 2 to 4
referred above do not reveal instances of organised crime. The challenge on ground No.II therefore
fails.
23. Whether the acts alleged would reveal a threat to public order shall now be considered in detail
for the purpose of considering the challenge under ground No.III.
24. The learned Additional Director General of Prosecution submits that there is no litmus test to
decide whether the acts alleged constitute a threat to public order or constitute only threat to law
and order. The relevant passages of binding precedents have been extracted above. To sum up, the
test is only whether the act is confined to an individual without directly or indirectly affecting the
tempo of life of the community. If it affects only the victim or victims, it can be reckoned as a threat
to law and order only; whereas if the nature and gravity of the act is such that it is likely to endanger
public tranquility affecting the tempo of life of the community, it would fall within the ambit of
public order.
25. In this context we refer to the allegations raised in cases 2 to 4 above.
26. In C.C.No.255 of 2008, the second case, the final report in which is produced as Ext.R2(k), the
allegations as revealed from the F.I.R as also the final report filed is that on account of prior
animosity of some others against the victims, 3 accused persons including the detenu herein
attacked the victims at a public place. In the third case, C.C.No.509/2008, final report in which is
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produced as Ext.R2(i), the allegation as revealed from the F.I.R and the final report is that the
accused persons including the detenu dragged the victim, who was sitting in an autorickshaw in a
public place, out of the auto rickshaw and indulged in wanton acts of violence against him. In
C.P.No.237 of 2008 (ie.Case No.5), the last of the 3 cases, the final report is Ext.R2(h), the
allegations in the F.I.R read along with the allegations in the charge sheet reveal that a public
transport vehicle (bus) which was operating on the route was stopped to enable the passengers to
disembark. Then the detenu on account of prior animosity threw a stone at the bus and thereby
committed the offences. It is further alleged that the detenu threatened the victim that if the police
were informed, they will not be permitted to work in the bus.
27. We have referred to the allegations in cases 2 to 4 above only to note that by no stretch of
imagination can it be safely held that the allegations do not constitute any threat to public order and
must be reckoned as posing a threat to law and order only. It will not be inapposite in this context to
note that the subjective satisfaction is not justiciable. The fact that the sponsoring authority and the
detaining authority reckoned these allegations as sufficient to constitute a threat to public order
warranting detention cannot, at any rate, be held to be as sufficient ground to interfere with the
impugned order. The plea that subjective satisfaction could not have been entertained at all cannot
be accepted. The challenge raised on ground No.III must also, in these circumstances, fail. Ground
No.IV
28. The learned counsel for the petitioner has brought to the notice of the Court several
circumstances to contend that there has been no proper application of mind either by the
sponsoring authority or the detaining authority. The counsel relies on precedents to impress upon
the Court the duty of the sponsoring authority to place all relevant facts before the detaining
authority and the duty of the detaining authority to consider all relevant facts and circumstances
before passing the order of detention. The counsel first of all contends that mind of the sponsoring
or detaining authority was not applied to the circumstance that 2 out of the 5 cases are certainly
cases which cannot be taken note of, ie. case Nos.1 and 5 referred above. We have already, while
considering Ground No.I, come to the conclusion that those 2 cases should not have been reckoned
by the detaining authority.
29. But the mere fact that those 2 circumstances were taken into consideration by the detaining
authority cannot by itself justify invalidation of the impugned order. It is in this context that Section
7(4) of the KAAPA becomes relevant and significant. We extract Section 7(4) of the KAAPA.
          "Section 7(4)       : The order of detention
      shall not be deemed to be invalid merely
      because     one    or  more    of   the   facts  or
circumstances cited among the grounds are vague, non-existent, irrelevant or invalid for any reason
whatsoever and such order shall be deemed to have been made by the Government or the
Authorised Officer after having been satisfied about the need for detention with reference to the
remaining facts and circumstances, provided that the minimum conditions for being classified as a
known goonda or known rowdy are satisfied."
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30. If the impugned order is justified by the 3 other cases referred to as cases 2 to 4, the fact that
cases 1 and 5 were also taken into consideration unjustifiably would not by itself justify invalidation
of the order of detention.
31. The learned counsel points out that though the sponsoring authority had submitted the proposal
under Section 3(1), reckoning the detenu as a known rowdy, the detaining authority had reckoned
him as a known goonda to pass the impugned order. We do take note of the incongruity. But we note
that cases 2 to 4 referred above are sufficient to bring the alleged detenu within the sweep of the
expression `known goonda and/or known rowdy' under Section 2(o) and 2(p) of the KAAPA. In
these circumstances, the fact that the sponsoring authority had referred to the detenu as a known
rowdy, while the detaining authority when he applied his mind had reckoned him only as a known
goonda, is not found to be of any crucial significance, in the facts of the case. It appears that the
detaining authority on application of his mind to the materials placed before him had come to the
conclusion that the detenu is a known goonda and is not to be reckoned as a known rowdy. In the
facts of this case that transformation is found to be of no crucial significance.
32. The counsel further points out that in Ext.R2(g) submitted by the sponsoring authority to the
detaining authority, there is reference to "rioting cases". The learned counsel contends that this
expression has been employed unjustifiably by the sponsoring authority and not one of the 5 cases
relied on by the sponsoring and detaining authority refers to a case of rioting. We do take note of
this submission. It is true that no allegations are raised of the detenu having committed the offence
of rioting in any of the 5 cases. The detaining authority has not relied on the allegation that rioting
has been committed. More over a careful reading of Ext.R2(g) cannot lead to the conclusion that the
expression rioting cases was used by the sponsoring authority to indicate that the detenu was facing
prosecution in any case for the offence of rioting. The detaining authority has not borrowed that
expression. He has not proceeded on the assumption that the detenu is allegedly involved in rioting
cases and in these circumstances the contention that there has been no proper application of mind
by the sponsoring and detaining authority for the above reasons cannot also succeed. The challenge
raised on Ground No.4 does also, in these circumstances, fail. Ground No.V
33. The learned counsel for the petitioner contends that the approval under Section 3(3) cannot be a
mechanical and routine act on the part of the Government. The counsel relies on Section 3(3) to
contend that the authorised officer/District Magistrate is obliged to forward all records to the
Government and the Government is bound to apply its mind before passing the order of approval
under Section 3(3). The learned counsel for the petitioner has brought our attention to Ext.P5 order
to contend that there is no proper application of mind by the Government before it passed the order
of approval under Section 3(3). The counsel in particular points out that Ext.P5 only shows that the
Government in passing the order of approval under Section 3(3) was only filling up the blanks. In
support of this contention the counsel relies on the words in Italics typed in Ext.P5. The counsel
contends that the order of approval, the conclusion is inevitable, is prepared in a format by filling up
the blanks. The name of the district - Kasargod, the number of the order of detention, the name of
the detenu are all typed in Italics and this, according to the counsel, indicates that there has been no
proper application of mind as required on the part of the Government before passing an order of
approval under Section 3(3). In this context, the learned counsel for the petitioner places reliance on
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the decision of the Constitution Bench of the Supreme Court in Kamleshkumar Ishwardas Patel v.
Union of India [(1995) 4 SCC 51]. The learned counsel contends that the Supreme Court had
occasion to consider an identical provision in Section 3(4) of National Security Act (in short `NSA')
and has made the following observations in para.34 of the said order. The counsel contends that
both under Section 3(4) of the N.S.A and Section 3(3) of the KAAPA, the initial order of detention
passed by a delegate of the Government is to hold the field only for a prescribed period. Thereafter it
is not the order of such delegate that justifies the detention of the detenu. It is only the order of
approval passed by the Government that justifies further detention. Such a crucial order cannot and
ought not to be passed without proper application of mind. The counsel contends that Ext.P5
significantly betrays the fact that such an alert application of mind had not preceded the passing of
the order under Section 3(3). The counsel particularly relies on the following observations in
para.34.
"Para.34:.................................................. ................................................................. The
said provision further prescribes that no such order shall remain in force for more
than twelve days after the making thereof, unless, in the meantime, it has been
approved by the State Government. This would show that it is the approval of the
State Government which gives further life to the order which would otherwise die its
natural death on the expiry of twelve days after its making. It is also the requirement
of Section 3(4) that the report should be accompanied by the grounds on which the
order has ben made and such other particulars as, in the opinion of the said officer,
have a bearing on the matter which means that the State Government has to take into
consideration the grounds and the said material while giving its approval to the order
of detention. The effect of the approval by the State Government is that from the date
of such approval the detention is authorised by the order of the State Government
approving the order of detention and the State Government is the detaining authority
from the date of the order of approval.................................................
............................................................................. ...... Approval, actual or deemed,
postulates application of mind to the action being approved by the authority giving
approval. Approval f an order of detention would require consideration by the
approving authority of the grounds ad the supporting material on the basis of which
the officer making the order had arrived at the requisite satisfaction for the purpose
of making the order of detention."
(emphasis supplied)
34. The learned counsel for the petitioner contends that such consideration as
stipulated by the Supreme Court did not precede the order of approval Ext.P5 under
Section 3(3). The counsel contends that Ext.P5 order of approval and the subsequent
detention of the detenu must, at any rate, be invalidated for the reason that such an
anxious consideration had not preceded Ext.P5.
35. The learned ADGP contends that Kamleshkumar Ishwardas Patel v. Union of India does not at
all deal with the manner in which the order of approval ought to be worded. There can be no dispute
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that the approving authority, ie. the Government under Section 3(3) has to consider all materials
and pass an appropriate order. This does not mean that all the materials must be adverted to and a
detailed speaking order rendered by the Government while granting approval under Section 3(3).
The learned ADGP contends that the requirement of consideration is one thing. But the insistence
that the order must reflect such consideration in detail, is entirely different. The learned ADGP
points out that what the Government is expected to do under Section 3(4) of the NSA and 3(3) of the
KAAPA is only to consider the materials available and decide whether the course adopted by the
delegate is justified. The learned ADGP submits that the same question had come up for
consideration earlier before another Constitution Bench in Bidya Deb v. Dist.Magis., Tripura [AIR
1969 S.C 323]. The Supreme Court in that case was considering an identical provision in Section 3
(3) of the Preventive Detention Act. We have gone through Section 3(3) of the Preventive Detention
Act, Section 3(4) of the NSA and Section 3(3) of the KAAPA in detail. We do not think it necessary to
extract the relevant statutory provisions in this judgment. Suffice it to say that they are substantially
identical. The learned ADGP relies on the observations of the Supreme Court in para.9 of the Bidya
Deb v. Dist.Magis., Tripura. The question that came up for consideration in that case was whether it
was obligatory that an order of approval should be furnished to the detenu. The learned ADGP
points out that the Constitution Bench of the Supreme Court in that decision had taken the view that
even the omission to furnish a copy of the order of approval does not vitiate or lead to invalidation of
the detention. The following passages in para.9 and 10 are relied on by the learned ADGP.
Para.9:.......................................................... .........................................................
Section 3(3) of the Preventive Detention Act does not specify that the order of approval is anything
more than an administrative approval by the State Government. If this be so the necessity of
communication of the approval does not arise with that strictness a s does the decision under Rule
30A (8) of the Defence of India Rules."
Para.10:....................................................... ......................................................... The scheme of the
Preventive Detention Act is merely to approve the original detention by the District Magistrate and
the continued detention after 12 days is not under any fresh order but the same old order with the
added approval and what the detenu can question, if he be so minded, is the original detention and
not the approval thereof."
36. The learned ADGP submits that the decision in Bidya Deb v. Dist.Magis., Tripura continues to
hold the field as the same is directly on the point. Their Lordships were deciding the question
whether the omission to furnish the order of approval would vitiate or lead to invalidation of the
order of detention. The learned ADGP points out that in Kamleshkumar Ishwardas Patel v. Union of
India, the Constitution Bench was not directly considering the nature of the order that ought to be
passed under Section 3(3). The question that arose in that decision primarily was whether the
detenu has a right to make a representation before the detaining authority and whether he has only
a right to make a representation before the Government. In Kamleshkumar Ishwardas Patel v.
Union of India, the Supreme Court took the view that the detenu has a right to make a
representation before the detaining authority which passed the order and the deemed approval by
the Government does not take away the right of the detenu to make a representation before the
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delegate who passed the order of detention. It is in that context that the observations in para.34 of
Kamleshkumar Ishwardas Patel v. Union of India were made. Kamleshkumar Ishwardas Patel v.
Union of India does not refer to Bidya Deb v. Dist.Magis., Tripura specifically. Both decisions are by
Constitution Benches and attempt must certainly be made by this Court to harmonise the
observations/dicta.
37. We have no hesitation to agree that order of approval under Section 3(3) must be preceded by
anxious consideration of all the materials that are forwarded to the Government by its delegate - the
District Magistrate, who passed the order. But it must be noted that it is only a course of approving
or otherwise of the action of the delegate and the scheme of Section 3(3) clearly reveals that it is only
a supervisory jurisdiction to ensure that the delegate has acted in tune with the delegation and true
to the mandate under Section 3. An order of approval, the scheme of Section 3(3) clearly reveals, is
not passed on the basis of any representation made to the Government by the detenu. In the scheme
of Section 3(3), it would be idle to expect the Government before passing the order of approval to
consider the objections raised and take a decision on such objections. We agree that alert
application of mind must precede an order of approval under Section 3(3). But we are unable to
agree that the order of approval must be more speaking than Ext.P5. The contention that Ext.P5
does not speak sufficiently cannot be accepted.
38. We now come to the contention that Ext.R2(m) was not considered by the Government before
passing Ext.P5. The learned counsel for the petitioner contends that after the detention of the
detenue on 02.07.09, he had promptly made Ext.R2(m) representation to the Government. That
representation is dated 08.07.09 and the same was handed over to the prison authorities on the
same date, ie. 08.07.09. Ext.P5 order of approval is seen passed on 10.07.09. Going by the
stipulations of Section 3(3), the Government could have waited till 20.07.09 to pass the order of
approval. According to the learned counsel, there was no need to pass the order under Section 3(3)
on 10.07.09. The representation had been handed over to an officer of the State (Jail authorities) on
08.07.09. The counsel contends that non consideration of the representation dated 08.07.09
(Ext.R2(m)) by the Government before it passed Ext.P5 order is fatal and that must invalidate
Ext.P5 order.
39. We are unable to agree. We do not accept that the Government is obliged to wait for the
representation and pass an order under Section 3(3) only after considering such representation. We
repeat that what is contemplated under Section 3(3) is a supervisory jurisdiction to ensure that the
delegate has acted within the scope of the delegation and true to the mandate under Section 3. It
was certainly unnecessary for the Government to wait for the representation and wait till the last
possible date on which the order of approval could have been passed in terms of Section 3(3). Ext.P5
order was passed on 10.07.09 and it is asserted that Ext.R2(m) had reached the Government only on
13.07.09. In these circumstances, we are unable to accept the argument that Ext.P5 must be held to
be vitiated and improper for the reason that it had been passed without considering Ext.R2(m)
representation.
40. For the above reasons, we feel that there is no merit in the challenge raised on ground No.V. The
challenge fails. Ground No.VI
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41. We now come to the most important contention advanced competently and with thorough
preparation by Shri Bechu Kurian Thomas, the learned counsel for the petitioner. The counsel
contends that Ext.R2(m) representation made by the detenu through the prison authorities has not
been considered by the Government in accordance with law. The learned counsel relying on Article
22(5) of the Constitution and Section 7(2) of the KAAPA contends that the statute as well as the
Constitution concede to the detenu a right to make a representation. It is trite that he must be given
an effective, expeditious and efficacious opportunity to make such a representation after his
detention. It is also trite, and it is unnecessary for us to refer to precedents, that this right to make a
representation inheres in it a corresponding right to proper and expeditious consideration of such
representation. Though Article 22(5) of the Constitution of India and even Section 7(2) of the
KAAPA do not prescribe the details of the manner in which such representation is to be considered,
it is well settled that such representation must be considered by the authorities properly. The
learned counsel for the petitioner relies on precedents to contend that the detenu is entitled to real
and proper consideration of such representation.
42. There has been dispute earlier as to whether the consideration of this representation is an
administrative act or quasi judicial act. There has been dispute as to whether an unbiased
independent authority ought to consider such representation or not. There has also been dispute as
to whether there is a right of hearing before such representation is considered and disposed of.
There has also been dispute as to whether the representation must be disposed of by a speaking
order giving reasons.
43. All those controversies now appear to have been settled. The Constitution Bench of the Supreme
Court in H.Saha v. State of West Bengal [A.I.R 1974 S.C 2154] has settled the controversy and it has
clearly been held that there is no right of hearing or an obligation to pass a speaking detailed order.
We think it sufficient to refer to para.26 of H.Saha v. State of West Bengal, which reads as follows:
"Para.26: The opinion of the Board as well as the order of the Government rejecting the
representation of the detenu must be after proper consideration. There need not be a speaking
order. There is also no failure of justice by the order not being a speaking order. All that is necessary
is that there should be a real and proper consideration by the Government and the Advisory Board."
(emphasis supplied) The counsel laments that even that consideration - a real and proper
consideration, has not been given to Ext.R2(m) representation which was disposed of by Ext.P8
order.
44. The learned counsel for the petitioner then relies on the decision in Bhut Nath Mete v. State of
W.B [(1974) 1 SCC 645] to contend that though a speaking order giving reasons cannot be insisted,
the detenu is entitled to have his representation considered properly. The counsel relies on the
following observations in para.23 of the above decision.
"Para.23:We are not persuaded that a speaking order should be passed by
Government or by the Advisory Board while approving or advising continuance of
detention although a brief expression of the principal reasons is desirable.
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.......................................... .............................................................................
....................................
The bare bones of natural justice in this context need not be clothed with the ample
flesh of detailed hearing and elaborate reasoning. It must be self-evident from the
order that the substance of the charge and the essential answers in the representation
have been impartially considered."
(emphasis supplied) The counsel contends that there is no such consideration in
Ext.P8.
45. Lastly and finally the learned counsel for the petitioner relies on the decision in John Martin v.
State of W.B[(1975) 3 SCC 836]. A 3 Judge Bench of the Supreme Court, considering the precedents
rendered earlier, proceeded to observe thus in para.3 of the said decision.
Para.3: ................................................................. ..............................................................................
....... This however, does not mean that the appropriate Government can reject the representation of
the detenu in a casual or mechanical manner. The appropriate Government must bring to bear on
the consideration of the representation an unbiased mind. There should be, as pointed out by this
Court in Haradhan Saha's Case, "a real and proper consideration" of the representation by the
appropriate Government. We cannot over- emphasise the need for the closest and most zealous
scrutiny of the representation for the purpose of deciding whether the detention of the petitioner is
justified."
(emphasis supplied)
46. The short grievance of the petitioner is that the detenu's representation Ext.R2(m) did not
receive a real and proper consideration. He complains that it is not self evident from the order that
the substance of the charge and essential answers in Ext.R2(m) representation have been
impartially considered by the Government. The Government in passing Ext.P8 order has dealt with
the representation in a casual and mechanical manner, laments the petitioner. The Government has
not brought to bear on the consideration of the representation an unbiased mind. The zealous
scrutiny of the representation which John Martin v. State of W.B insists has not been given in the
instant case, contends the learned counsel for the petitioner.
47. The learned ADGP on the contrary contends relying on the very same decisions that it is not
necessary at all for the Government to pass a detailed speaking order. According to the learned
ADGP, Ext.P8 order reveals anxious consideration of the representation. A real and proper
consideration as insisted by H.Saha v. State of West Bengal has been given to the representation.
Before rejecting the representation under Ext.P8 order, anxious and zealous scrutiny has been made
by the Government, contends the learned ADGP.
48. We must now consider whether Ext.P8 reveals (or can lead us to presume) that such real and
proper consideration has been rendered or not. It will be apposite to refer to the language of Ext.P8.
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Ext.P8 translated roughly reads as follows:
"Your representation dated 08.07.09 has been considered by the Additional Chief
Secretary of the Home Department. We regret to inform you that your representation
is rejected as the grounds raised therein are not acceptable to release you from
preventive detention."
49. In this context it will be appropriate to note that Ext.R2(m) representation is the one dated
08.07.09 referred to in the order. It is not necessary for us to advert to the various other grounds
urged therein. But we feel it proper to refer to 2 specific grounds that have been raised.
50. Firstly it is submitted that 2 cases relied on in the order of detention and the grounds for
detention are non existent as they have already ended in acquittal long prior to Ext.R2(g) report of
the sponsoring authority and Ext.P1 order of detention under Section 3(1). This, it appears to us, is a
very crucial ground raised. The detenu was thereby pointing out to the Government the factual
inaccuracy that has crept in. The sponsoring and detaining authorities had incorrectly and
erroneously assumed that cases 1 and 5 were still pending; whereas one had ended in acquittal and
the other had been closed accepting the plea of guilty. It has also been raised that the said case ie.
case No.5 cannot be taken into consideration while considering the question of detention under
Section 3. Both these contentions are factually correct. There is no contention for the respondent
that case No.1 or 5 was pending on the date of the proposal of the sponsoring authority or on the
date of the impugned order. There is no contention for the respondent that the 5th case ie. the
prosecution under Section 160 I.P.C can be taken into account to decide whether a person is a
known goonda or a known rowdy. Ext.P8 order which we have extracted above clearly,
unmistakably and unambiguously shows that these 2 contentions have not at all been specifically
considered by the Government before rejecting Ext.R2(m) representation. To us it appears that this
plea - that patently erroneous factual details had crept into the order of detention, has not been
considered by the Government when it passed Ext.P8 order. At least there is nothing to show that
any other contention had been considered. A speaking order is not necessary and it may not be
possible to insist that each such contention raised in Ext.R2(m) must have been considered and
answered. But at any rate, consideration by the Government cannot be casual or mechanical. Real
and proper consideration must be given to the representation. Otherwise it would result in
deprivation of the valuable right of the detenu to make a representation to the Government and to
request the Government to revoke or modify the order passed against him. As held in Bhut Nath
Mete v. State of W.B, answers of the detenu in the representation [Ext.R2(m)] must have been
considered impartially and such consideration must be self evident from the order.
51. We are unable to persuade ourselves to agree that Ext.P8 reveals such consideration which is
insisted by the precedents referred above. The sure test for us to decide whether there has been
proper consideration or not is the omission/failure to refer to the contention that cases 1 and 5
referred above should not have been taken into consideration. We agree with the learned counsel for
the petitioner that the very same Ext.P8 order (with a change in the date of representation) can be
used by the Government to reject the representation of any other detenu detained on any other
ground. The language of Ext.P8 order clearly betrays that a real and proper consideration has not
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been given to the representation made by the detenu.
52. We must alertly remind ourselves that we are dealing with a petition for issue of a writ of habeas
corpus filed on behalf of a detenu who has been detained and deprived of his freedom and liberty
not for any specific contumacious act committed by him, but solely on the apprehension that he
may, in future, judged by his past conduct, indulge in antisocial activities. The cause of liberty and
freedom has always been fought with weapons which insist on procedural compliance. The
insistence of procedural correctness has gone a long way to help the Court to protect the rights of
citizens to freedom and liberty. We are unable to agree that the valuable right of the detenu, to have
his representation considered, has been observed and respected by the Government in passing
Ext.P8 order. On that last ground raised by the petitioner, the continued detention of the detenu
deserves to be invalidated. The challenge on ground No.VI therefore succeeds.
53. Before parting with the case, we must impress upon the Government the need to ensure that
orders of preventive detention do not suffer from technical or procedural inadequacies. The
legislative anxiety to arm the executive with such draconian power to order preventive detention in
the interest of societal safety and protection can be frustrated by such inadequate compliance with
procedural safe guards. The Government must ensure that such inadequacies do not creep in at any
stage to vitiate the order. The officials may be inexperienced and ill equipped to live upto the
challenges in the new jurisdiction to order preventive detention available under the KAAPA.
Adequate training for and strict insistence of procedural mandates from those wielding such power
have to be insisted by the Government if legislative goals are to be fully achieved. The Government
must ensure that every representation by the detenu under Article 22(5) of the Constitution and
Section 7(2) of the KAAPA is disposed of after real and proper consideration as insisted by the
precedents referred above.
54. In the result:
a) This Writ Petition is allowed;
b) The continued detention of the detenu is found to be invalid and unjustified;
c) If the detention of the detenu is not necessary in any other case, he shall forthwith be released
from custody by the prison authorities;
d) The Registry shall forthwith communicate the order to the Superintendent of the Central Prison,
Kannur forthwith.
(R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-
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