IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(Crl.).No. 76 of 2011(S) 1. GIRIJA, AGED 48 YEARS, Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY Respondent 2. DISTRICT COLLECTOR & DISTRICT MAGISTRATE 3. DEPUTY COMMISSIONER OF POLICE (LAW & 4. CIRCLE INSPECTOR OF POLICE, 5. THE CHAIRMAN, ADVISORY BOARD, For Petitioner :SRI.S.RAJEEV For Respondent :GOVERNMENT PLEADER The Hon'ble MR. Justice K.M.JOSEPH The Hon'ble MR. Justice M.L.JOSEPH FRANCIS Dated :25/04/2011 O R D E R [ENTITY] & M. L. JOSEPH FRANCIS, JJ. W.P.(CRL).NO. 76 OF 2011 S Dated this the 25th April, 2011 JUDGMENT
[ENTITY], J.
Petitioner is the mother of the detenu who stands detained pursuant to proceedings under the [ACT] (hereinafter referred to as the Act). Ext.P1 is the order dated 2.2.2010 passed by the District Magistrate under [SECTION] of the Act, ordering the detention of the detenu, proceeding on the basis that the alleged detenu was a known rowdy. However, the detenu was not detained on the basis of Ext.P1 order as such. Ext.P2 is the order dated 11.11.2010 issued by the same District Magistrate who issued Ext.P1. Therein, he has referred to, inter alia, the letter from the Deputy Commissioner of Police to the effect that the alleged detenu and his associates have committed the offence in [CASE NUMBER] of Thiruvalla Police Station under [SECTION], [SECTION] and [SECTION] of the [ACT] on 25.10.2010. The case was that the detenu and his associates entered into the works site where the complainant works with his JCB Excavator and demanded Rs.10,000/= as goonda fee, threatened, manhandled brutally and inflicted serious injuries to him and robbed Rs.2,500/= and broken the wind shield of the JCB Excavator from his pocket. The case is under investigation. It is further stated, inter alia, that he was reported arrested on 02.11.2010 and subsequently remanded to judicial custody. It is stated that it is informed that he has moved to get bail from the court and it has been reported that he will involve in antisocial and violent activities affecting public order, if he is released on bail. Thereafter, the Magistrate issued Ext.P2 addendum to Ext.P1 order. It is feeling aggrieved by the detention pursuant to the same that the petitioner is before us.
2. We heard Shri [ENTITY], learned counsel for the petitioner and also Shri [ENTITY], learned Senior Government Pleader.
3. Learned counsel for the petitioner would address before us the following contentions:
He would submit that though Ext.P1 order of detention was passed on 02.02.2010, the detenu came to be detained only on 14.11.2010. He would submit that no steps were taken under [SECTION] of the Act to secure his presence and execute Ext.P1 order. Thus, Ext.P1 order of detention would fall to the ground.
He would further point out Ext.P3 and contend that in connection with one of the cases which is referred to in Ext.P1 order, the detenu had surrendered before the Judicial First Class Magistrate Court, Neyyattinkara on 27.8.2010 and he was remanded in judicial custody till 7.9.2010. Ext.P3 order would show that he was granted bail subject to certain conditions. He would submit that this would itself show that the detenu was not actually absconding and there was clear failure on the part of the Officers in executing Ext.P1 order in time. It is after a lapse of more than six months which is the maximum period of detention provided under [SECTION] that on 14.11.2010 the detenu came to be detained. He would complain of non-application of mind by the detaining authority when he passed Ext.P2 order. He would further contend that when Ext.P2 order was passed, actually the detenu was in detention as is clear from a perusal of Ext.P2. He would canvass for the position that it is not even mentioned in Ext.P2 that there is a possibility of the detenu getting bail and the requirement of law is that the detaining authority must come to the conclusion which must be reflected in the order of detention that he is likely to get bail. It is further contended that there is no reference to the Addendum order in the proceedings by which Ext.P1 order came to be approved. It is further contended by the learned counsel for the petitioner that Ext.P2 order was procured by the sponsoring authority as it were by placing incorrect facts before the detaining authority. In this context, he buttresses his argument with reference to the fact that no steps had been taken under [SECTION] of the Act. He also submits that Ext.P4 does not establish that the approving authority had in mind Ext.P2 or that it is approved. He submits further that the decision in [ENTITY]'s case (2010 (1) KLT
132) requires reconsideration. He points out that [SECTION] of the Act requiring "forthwith" reporting of the detention, inter alia, stood violated.
4. Per contra, learned senior Government Pleader would support the order. He would submit that as far as Ext.P1 order is concerned, it is true that it is not executed. But, the fact remains that the detenu came to be involved allegedly in a fresh crime. This was a new circumstance. He heavily relied on the judgment of this Court in [ENTITY] v. State of Kerala [PRECEDENT]. He would contend that, therefore, the fact that Ext.P1 order of detention was not executed, steps were not taken under [SECTION] of the Act, was not germane. What is important is whether there was a new circumstance or changed circumstance giving rise to the need for the detaining authority to have a fresh look at the order of detention and such a changed circumstance did indeed exist in the form of the alleged involvement of the detenu in the crime committed on 25.10.201. He would contend that while it is true that the word used in [SECTION] is "forthwith", it should be read in the context of the upper time limit being fixed for the grant of approval with reference to the actual date of detention. According to him, not only must there be an order of detention passed validly, but when the Government approves of the detention, the Government must be apprised of the fact that the detaining authority has followed the mandate of [SECTION] in the manner of executing the order of detention and, therefore, actually the significance of the word "forthwith" cannot be detracted from the actual purpose behind the employment of the said word and the need of the detaining authority to comply with the requirements of [SECTION], which also must be approved by the Government.
5. As far as the question of the detenu being in custody at the time of passing of Ext.P2 order, he would submit that the fact that the detenu was in custody, and that he had moved for bail, was very much present in the mind of the detaining authority. He would submit that the decision of a Bench of this Court in [CASE NUMBER] in [CASE NUMBER] for the proposition that when an order of detention is followed by an Addendum, in law, there is only one order of detention and approval is to be given for the original order of detention. He also submits that Ext.P2 reflects application of mind by the detaining authority to the relevant aspects, namely the existence of a new circumstance, and that what is stated in the report of the sponsoring authority, even if he was in error, as regards the question of the detenu absconding, it will not have any fatal effect on the order of detention.
6. We must first consider the question as to what is the effect of Ext.P1 order remaining unexecuted from 2.2.2010 till 15.11.2010. It is true that in Ext.P2 order, it is stated as follows:
"Deputy Commissioner of Police (L&O), Thiruvananthapuram City, has reported that, the detention order against Sri. [ENTITY], S/o. [ENTITY] was not executed since he was at desertion since the time issuance of the detention order against him."
However, there is no material placed before us to come to the conclusion that the detenu was actually absconding. On the contrary, there are circumstances which suggest the opposite. Ext.P3 would show that in respect of one of the crimes which was the subject matter of Ext.P1 order, the detenu was in judicial custody which was ordered on his surrendering before the Judicial First Class Magistrate Court, Neyyattinkara on 27.8.2010. He continued in judicial custody till 7.9.2010 on which day he was ordered to be released on bail. Thus, there can be no doubt that if Ext.P1 were to stand by itself, the detention on 14.11.2011 would be per se unsustainable. However, the learned senior Government Pleader would rely on the principle enunciated in [ENTITY] v. State of Kerala [PRECEDENT] and contend that proceeding on the basis that the detenu was not absconding, in view of the changed circumstances as reflected in the recital of the alleged involvement of the detenu in a fresh crime on 25.10.2010, a fresh lease of life was breathed into the original order of detention and the original order of detention became legally fit to be executed. In this regard, we must at once advert to the principles enunciated in [ENTITY] v. State of Kerala [PRECEDENT] which read as follows:
"14. But, the question is whether case No.6, the incident in which occurred on 1.6.2009 after the passing of Ext.P1 order dt. 19.1.2009 and the application of mind by the detaining authority as revealed from Ext.P2, are sufficient to undo the effect of inaction on the part of the detaining/executing authorities.
16. We note that the observation of the Division Bench in [ENTITY] is evidently on the basis of another earlier decision of the Supreme Court in [ENTITY] v. State of Tamil Nadu (AIR 1979 SC 541). We extract below the relevant portion of para.6 of the said judgment:
"Para.6 We may in appropriate cases assume that the link is `snapped' if there is a long and unexplained delay between the date of t4he order of detention and the arrest of the detenu. In such a case we may strike down an order of detention unless the grounds indicate a fresh application of mind of the detaining authority to the new situation and the changed circumstances. But, where the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the `link' not snapped but strengthened. That, precisely, is the state of affairs before us."
17. The decision of the Supreme Court in [ENTITY] followed by this Court in [ENTITY] clearly and unmistakably suggests that where grounds indicate a fresh application of mind by the detaining authority to the new situation and changed circumstances, the delay between the order of detention and the arrest of the detenu cannot lead to a conclusion of snapping of nexus.
19. The observations of the Supreme Court in [ENTITY] and the Division Bench in [ENTITY] clearly show that where there is such a gap of time between the order and execution, the detaining authority is entitled to, nay obliged to, consider the materials afresh by a proper application of mind to decide whether under the new situation and changed circumstances the order of detention deserves to be executed. To us it appears that, that is exactly what has been done by the detaining authority in Ext.P2. What [ENTITY] and [ENTITY] mandate has been performed by the detaining authority by passing Ext.P2 order. In these circumstances, we take the view that whatever be the delay/inadequacy in execution of Ext.P1 order, the fact that the detaining authority after adverting to the delay relied on the changed circumstances on the basis of case No.6 and directed execution of the order of detention, is sufficient to cure all such defects arising from the delay in execution."
In the context of this declaration of the law, we would think that the learned senior Government Pleader is right in contending that in view of the subsequent event which allegedly took place on 25.10.2010, the detaining authority was justified in passing the Addendum order and providing for his detention. However, learned counsel for the petitioner would submit before us that [ENTITY] v. State of Kerala [PRECEDENT] itself requires to be reconsidered. He would draw our attention to the facts of the case in [ENTITY] Ganeshmalji v. State of Tamil Nadu and Another (1979 SCC (Crl) 318 - AIR 1979 SC 541). That was a case under the [ACT]. Though the order of detention was passed on 19.12.1974, it was not executed as the detenu was absconding. A proclamation was made under [SECTION] of the Act and in fact the petitioner surrendered on 1.2.1978. Therein, the Court, inter alia, held as follows:
"6. It is true that the purpose of detention under the [ACT] is not punitive but preventive. The purpose is to prevent organised smuggling activities and to conserve and augment Foreign Exchange. It is true that the maximum period for which a person may be detained under the [ACT] is one year. It is further true that there must be a `live and proximate link' between the grounds of detention alleged by the detaining authority and the avowed purpose of detention namely the prevention of smuggling activities. We may in appropriate cases assume that the link is `snapped' if there is a long and unexplained delay between the date of the order of detention and the arrest of the detenu. In such a case we may strike down an order of detention unless the grounds indicate a fresh application of the mind of the detaining authority to the new situation and the changed circumstances. But where the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the `link' not snapped but strengthened. That, precisely, is the state of affairs before us. The order of detention was made on December 19, 1974. The detenu was found to be absconding. Action was taken pursuant to [SECTION] of the [ACT] and he was proclaimed as a person absconding under [SECTION] of the [ACT]. The proclamation was published in several leading English and local language daily newspapers. His photograph was exhibited in cinema halls. A reward of Rs.5,000/= was also announced for his apprehension. Despite all this effort he could not be arrested until he surrendered on February 1, 1978. We do not have any hesitation in overruling the submission of Shri [ENTITY] based on the delay in the execution of the order of detention."
It is therefore submitted by the learned counsel for the petitioner that, that was a case where the detenu was found to be absconding and action was taken under the relevant provisions to procure his presence and he was proclaimed as an absconder. Photographs were exhibited in cinema halls and reward was also announced. The decision in [ENTITY]'s case supra came to be followed by a Bench of this Court in the decision reported in [ENTITY] v. State of Kerala (2000 (1) KLT 673). Therein also, there was unusual delay in executing the order of detention. The Court ultimately took the view that the order of detention was vitiated and relief was granted. However, the court referred to [ENTITY]'s case and held as follows:
"In such circumstances, an order of detention can be struck down unless grounds indicate a fresh application of mind of the detaining authority to the new situation and changed circumstances. But where delay is not only adequately explained but is found to be the result of recalcitrant or refractory conduct of detenu in evading arrest, there is warrant to consider the link not snapped but strengthened."
Therefore, the attempt on the part of the learned counsel for the petitioner is to establish the principle that unless it was found that the detenu was absconding and steps were taken, by mere reference to a new incident which takes place after a considerable period of delay on the part of the Authorities in executing the original order of detention, an addendum order was not contemplated by which the original order is rendered capable of being executed.
7. It is true that in [ENTITY]'s case, the Court took note of the fact that there was unusual delay. The effect of delay is that it will snap the link between the detention and the execution. An order of detention under the laws of preventive detention is premised on the imperative need to urgently detain a person in a jurisdiction of suspicion. The object is to prevent the person from committing some undesirable activity as contemplated in the concerned law. As far as the provisions of the Act are concerned, an order of detention must be premised on the existence of an objective satisfaction by which the authority comes to the conclusion that a person is either a known goonda or known rowdy. Further, the detaining authority must also be satisfied on a subjective basis of the need for detention, which is normally not judicially reviewed. It is when such an order which is valid at the time when it was passed, loses its rigour and vigour by reason of the recalcitrant delay on the part of the Officers charged with the duty of executing it and a fresh incident or incidents take place that the law contemplates a revisiting of the whole matter. If a detenu is absconding and steps have been taken, an order of detention in its on right is capable of being executed without reference to any fresh material or new circumstance. It is when an order of detention is not executed and there is breach of the duty on the part of the Officer, resulting in such non-execution that a new circumstance would assume larger significance. The rationale behind a new event giving rise to the power with the detaining authority to consider the question whether the detenu should be detained in pursuance of an earlier order of detention is that the new event will provide a link or a bridge between an earlier order of detention and the actual detention. In other words, when a new crime is alleged of the sort contemplated under the Act, it re- assures the detaining authority and the court that here is a person whose detention is indeed necessary and warranted with reference to his being validly and rightly classified as either a known goonda or known rowdy. It is not as if the detaining authority is reopening the earlier satisfaction arrived at by himself that the detenu was indeed either a known goonda or a known rowdy. What the new incident does is, it resuscitates the earlier order of detention and breathes new life into the otherwise faded order of detention. Hence we are unable to persuade ourselves to accept the plea of Shri [ENTITY], learned counsel for the petitioner that [ENTITY]'s case does not lay down good law or that it requires reconsideration.
8. The discussion we had in the earlier paragraph is sufficient for us to repel the argument of the petitioner that the detention is flawed as steps were not taken under [SECTION] of the Act. If steps were taken under [SECTION], either the detenu would be apprehended or he may have remained at large. But, the crucial point to be not overlooked is the conduct attributed to the detenu allegedly involving himself in a fresh crime that allows the authorities to invoke the provisions and execute an order of detention against him.
9. The further question to be considered is whether the detention is bad for the reason that the detenu was in jail from 2.11.2010 and he remained so when the addendum order was passed on 11.11.2010. In the order, it is specifically stated that he is in custody from 2.11.2010. This means that the authority was conscious of the fact that the detenu was in custody. Further, it is stated in the order that there is information that he has moved to get bail. It is here that Shri [ENTITY], learned counsel for the petitioner would point out that the requirement of law is not satisfied. In this regard, he relied on the Judgment of a Division Bench of this Court in [PRECEDENT]. Therein, the Division Bench referred to the decision of the Apex Court in paragraph 14 which reads as follows:
"14. The learned counsel for the petitioner has brought to our notice another decision of the Apex Court reported in [PRECEDENT]. For appreciation of the legal position involved in the case on hand, a comparison of factual situation in the above reported case is necessary which contains in para 7 of the above decision which says as follows:
"7. In the grounds of detention, the following statement occurs in para 9:
"The Administrator of the National Capital Territory of Delhi is aware that you are in judicial custody and had not moved any bail application in the Court(s) after June 9, 1992 but nothing prevents you from moving bail applications and possibility of your release on bail cannot be ruled out in the near future. Keeping in view your modus operandi to smuggle gold into India and frequent visits to India, the Administrator of the National Capital Territory of Delhi is satisfied that unless prevented you will continue to engage yourself in prejudicial activities once you are released.
In para 8 of the above decision, the Apex Court had held as follows:
"8. The above statement merely speaks of a "possibility" of the detenu's release in case he moves a bail petition. It neither says that such release was likely or that it was imminent. Evidently, the statement falls short of the requirement enunciated by this Court in [PRECEDENT]. Even in the return filed in this petition, the authority has not stated (in response to Ground `B' of the writ petition) that there was material before him upon which he was satisfied that the petitioner was likely to be released or that such release was imminent. In Ground `B' of the writ petition, the petitioner had alleged:
"That the respondent knew perfectly well that a complaint has already been filed in Court against the petitioner. He also knew that his two applications for bail were rejected by the Court. Between June and August, the petitioner had made no attempt whatsoever to secure any bail either from the Trial Court or from any Superior Court. Without any application of mind to this aspect of the matter, the respondent acted perversely in coming to the conclusion that the petitioner was ever likely to indulge in any offence of smuggling, to prevent which the respondent found it necessary to pass the order Annexure `A' hereto." "
In the present case, as pointed out earlier, Ext.P1 order does not say anything about such crucial aspect with respect to the detenu. In the case mentioned above, the Apex Court had observed that the above statement merely speaks of a "possibility" of the detenu's release in case he moves a bail petition. It neither says that such release was likely or that it was imminent. Evidently, the statement falls short of the requirement enunciated by this Court reported in [ENTITY] v. Union of India, 1991 SCC (Crl) 88. Finally, in the above decision, the Apex Court was pleased to quash the detention order and further ordered that the detenu, if in custody, should be released forthwith if he was not required in any other case or if he was not being detained under an order of competent Court."
We notice that the Court referred to the decision of the Apex Court in [ENTITY] v. Union of India (1991 (1) SCC 128). It is relevant to notice that in the decision referred to by the Division Bench, it was noted in the order of detention that the detenu was in custody and he had not moved any bail application in the Court. But, it was also noted that nothing prevented him from moving bail applications and the possibility of his release cannot be ruled in the near future. It was in that context that the Court held that the statement about the mere possibility was not sufficient and that it does not say that such release was highly imminent and the Court further referred to [ENTITY]'s case. In that case, the detaining authority had actually stated that though the detenu was in judicial custody, he could be released on bail at any time as the offence was bailable. In fact, the Court held as follows:
"It was then submitted that the detenu [ENTITY] had not applied for bail and, therefore, there was no question of his being released on bail. We do not think that there is any merit in this submission for the simple reason that if the co-accused are released on bail he too could seek enlargement on bail at any time. Therefore, the possibility of all the detenus being released on bail was a real one and not an imaginary one. This was based on past experience which is reinforced by the observations of the High Court that even in non-bailable cases Courts of Sessions and High Court do grant bail. The second limb of the contention is, therefore, clearly devoid of merit."
No doubt, the Court proceeded to have an exhaustive discussion and the principles have been laid down in paragraph 13 of the Judgment which reads as follows:
"13. From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher court. What this Court stated in the case of [ENTITY] was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention. This seems to be quite clear from the case law discussed above and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise. We, therefore, find it difficult to accept the contention of the counsel for the petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the detenus were in custody."
10. We must notice that this is a case where not only was the detaining authority aware of the judicial custody of the detenu, but also it is specifically stated that there is information that the detenu has actually moved for getting bail. In such circumstances, the mere absence of the words "he is likely to get bail" may not be fatal to his continued detention.
11. Another argument raised by the learned counsel for the petitioner is that there is no consideration of the addendum order by the Government or approval of the same by it in the order granting approval (Ext.P4). In this connection, it is relevant to notice that a Bench of this Court had dealt with a similar argument which reads as follows:
"4. The counsel argues now for the first time that Ext.P2 order has not been approved or confirmed. The learned counsel has taken us through Annexure A3 order of approval under [SECTION] and [SECTION] order of confirmation under [SECTION] to contend that these orders of approval/confirmation do not refer to Ext.P2. The argument of the learned counsel is that as the detention was under Ext.P1 read along with Ext.P2, approval/confirmation must have been there for Ext.P2 order also. Inasmuch as Ext.P2 order is neither approved nor confirmed under [SECTION] and [SECTION], the counsel contends that the continued detention of the detenu is not justified.
5. We are unable to accept this contention. The order of detention is Ext.P1. In Ext.P2, the detaining authority applied it4s mind again to the new situation and changed circumstances referred to in Ext.P2 and decided that though belatedly, the order of detention has to be executed. Ext.P2 cannot be reckoned as a different, separate or unconnected order which requires separate approval/confirmation. We repeat that Ext.P1 was the order of detention. It was not executed within a reasonable time. The detaining authority by Ext.P2 considered the matter afresh in the light of the new situation and changed circumstance and decided that the detenu must be detained. Approval/confirmation was given to such detention ordered in Ext.P1. The reasons for the decision to belatedly execute the same was stated in Ext.P2. In these circumstances, the grievance that [SECTION] and Ext.R2(b) do not specifically approve/confirm Ext.P2 order under [SECTION] and [SECTION] is found to be without any merit."
We are also of the same view that there is only one order of detention, even though an addendum is passed and approval when it is granted, is granted with reference to the original order of detention. The approval was granted in this case on 25.11.2010 which is after the order of addendum and there is no reason to believe that the records relating to Ext.P2 and the connected case were not available with the Government or that they were not considered by it.
12. Yet another point raised by the learned counsel for the petitioner is that there is violation of [SECTION] of the Act. [SECTION] of the Act reads as follows:
"3. Power to make orders for detaining Known Goondas and Known Rowdies.-(3) When any order is made under this section by the authorised Officer under sub-section (2), he shall forthwith report the fact to the Government and the Director General of Police, Kerala, together with a copy of the order and supporting records which, in his opinion, have a bearing on the matter and no such order shall remain in force for more than 12 days, excluding public holidays, from the date of detention of such Known Goonda or Known Rowdy, unless, in the meantime, it has been approved by the Government or by the Secretary, Home Department if generally so authorised in this regard by the Government."
It is contended that the order of detention was not reported forthwith. The word "forthwith" came up for consideration in the decision in [PRECEDENT]. Therein, it is, inter alia, stated as follows:
"8. The word "forthwith" has been interpreted by this Court by plethora of precedents and it is not necessary to burden the judgment by referring them once over capiasly, though the counsel to the appellants has relied on them. This Court held that the expression `forthwith' would mean `as soon as may be', that the action should be performed by the authority with reasonable speed and expedition with a sense of urgency without any unavoidable delay. No hard and fast rule could be laid nor a particular period is prescribed. There should not be any indifference or callousness in consideration and disposal of the representation. It depends on the facts and circumstances of each case. Any delay in consideration of the representation should be satisfactorily explained. If no satisfactory explanation has been given or found to be wilful or wanton or supine indifferent it would be in breach of the constitutional mandate of [SECTION]. The liberty of a person guaranteed under [SECTION] of the [ACT] is a cherished right and it can be deprived only in accordance with law."
Therefore, the requirement of the law would be satisfied if it is reported as soon as may be. Not only should the fact of detention be reported, but the order of detention along with connected records must be sent. It is true that when the Officer passes an order of detention, he has a duty to be ready to comply with the requirements of [SECTION] and there can be no quarrel with the proposition that the authority must indeed report the matter to the Government and the Director General of Police. This question came to be considered by a Bench of this Court in [ENTITY] v. State of Kerala (2009 (3) KLT 155). Therein, there were four grounds dealt with by the Court. In Ground No.2, the Court took the following view:
"The purpose is obvious that after receipt of the report by the Government, order regarding approval under [SECTION] of the [ACT] has to be passed within 12 days of the date of detention The expression "forthwith" undoubtedly means immediately and the District Magistrate must comply with the requirement strictly in letter and spirit."
Still later, in [PRECEDENT], the Court apparently took the view that it had stated the law rather not in tune with the requirements of [SECTION] and it held as follows:
"23. We are in complete agreement with the learned counsel for the petitioner that the said observations were made by this court overlooking the specific language of the statutory provision in [SECTION]. It is certainly incorrect to assume that the obligation to forward the order and the records forthwith to the Government will start only from the date of detention or the date on which the report of execution reaches the District Magistrate. To that extent, the observation in para.10 of [ENTITY] v. State of Kerala (2009 (3) KLT 155) that "the arresting Officer has to report to his superior and the information regarding detention must reach the District Magistrate who has thereafter to forward the order of detention and records to the Government under [SECTION] of the [ACT]" is incorrect. The same is rendered without reference to the specific language of [SECTION]. Since the same has been rendered overlooking the specific language of [SECTION], that cannot operate as a precedent."
We must also notice paragraph 24 as it dealt with the effect of non- compliance with the mandate of [SECTION]. It reads as follows:
"24. Having said so, we are not persuaded to go into the question in detail whether the omission to forward the order and the records forthwith must entail invalidation of detention in this case. The impact of the delay on an order of detention may vary in the facts and circumstances of each case and it is hence not necessary for us to consider whether such delay must entail invalidation of the detention in this case. In the facts of [ENTITY] (supra) the delay was insignificant and irrelevant. In the instant case the delay is more prominent and serious. The learned Government Pleader immediately points out that if the order is passed before the expiry of 12 working days from the date of detention, it cannot be held that there is any breach of the statutory mandate requiring invalidation. The learned counsel for the petitioner brings to our notice the observations in para.10 of an unreported judgment by a Division Bench of this court [CASE NUMBER] dated 15.1.2009 which also we extract below:
"10. The last contention raised by the petitioner is that there is violation of [SECTION] of the Act. It is contended by Shri [ENTITY], learned counsel for the petitioner that the Authorised Officer ought to have reported about the issuance of the detention order forthwith to the Government as well as the Director General of Police, Kerala together with a copy of the order and supporting records which, in his opinion, have a bearing on the matter. A perusal of [SECTION] of the Act clearly indicates that there is considerable force in the above contention." "
We must also refer to the fact that the Court has actually reiterated the principles laid down in [ENTITY]'s case which has already been referred to and which we have extracted.
13. As to whether a provision is mandatory or not, will be the result of answers to various questions, as laid down in Principles of Statutory Interpretation by [ENTITY] which reads as follows:
"Mandatory and Directory Provisions:
The study of numerous cases on this topic does not lead to formulation of any universal rule except t4his that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oft-quoted passage Lord [ENTITY] said: "No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be considered." As approved by the Supreme Court: "The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other." "For ascertaining the real intention of the Legislature", points out [ENTITY], J. "the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered." If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory. But all this does not mean that the language used is to be ignored but only that the prima facie inference of the intention of the Legislature arising from the words used may be displaced by considering the nature of the enactment, its design and the consequences flowing from alternative constructions. Thus, the use of the words `as nearly as may be' in contrast to the words `at least' will prima facie indicate a directory requirement, negative words a mandatory requirement, `may' a directory requirement and `shall' a mandatory requirement.
If a provision is mandatory an act done in breach thereof will be invalid, but if it is directory the act will be valid although the non-compliance may give rise to some other penalty if provided by the statute."
Therefore, we must pose ourselves as to the question as to what is the setting of the Statute, what is the purpose sought to be achieved by incorporating the word "forthwith".
14. Every order of detention involves an incursion into the personal liberty of a citizen. It is, however, constitutionally permissible subject to the safeguards laid down in [SECTION] and any law which has been enacted providing for such detention. Under [SECTION] of the Act, an order of detention may be passed by either the Government or by such other officers as are authorised. An order of detention is usually passed by the District Magistrate as the authorised officer. An order of approval is not required in a case where the Government itself passes the order. It is only when the District Magistrate passes the order that the question of reporting the matter and securing approval of the Government exists. We would think that the requirement that an order of detention must be reported forthwith is intended to achieve a salutary purpose. It is enacted by way of a check on the power of the District Magistrate so that the Government may be enabled to control, regulate and intervene in appropriate cases where the statutory functionary goes astray. We can contemplate cases where the District Magistrate may pass orders of detention illegally. He may pass an order with malice. He may pass an order without application of mind. In such and other cases where the order of detention was in the first place not warranted, undoubtedly, [SECTION] of the Act provides for power with the Government to revoke or modify an order of detention. The Government operates from its capital in Thiruvananthapuram. The State is comprised of a number of Districts and the Officers may pass orders and it may not come to the notice of the Government.
15. The Government operates from its capital at Thiruvananthapuram. The State is comprised of a number of Districts and the Officers may pass orders and it may not come to the notice of the Government unless it is reported by those Officers. Therefore, there is a high purpose in the employment of the word "forthwith" and that is that the Government may oversee and supervise effectively the functioning of the Authorities under the Act in the matter of issuance of orders of detention, that the Government may interfere in appropriate cases without any delay. Government can refuse to grant approval in appropriate cases. If the Government refuses to give approval or revokes or modifies the order of detention, the result would be that the Officers of the State would be freed from the obligation to pursue the matter any further on the one hand and on the other hand, more importantly, the sword of Damocles which would otherwise over hand a person against whom an order of detention has been passed would stand lifted. We are not impressed by the contention of the learned Senior Government Pleader that the Government cannot take a decision not to approve the order of detention before the carrying out the order of detention. The requirement in [SECTION] that the order of detention must be approved within a period of fourteen days from the date of detention, in our view, only amounts to prescribing a maximum period within which the order of detention must be approved. [SECTION] in fact speaks about approving of the order of detention. There is nothing in [SECTION] to indicate that when the Government approves the order of detention, it is saddled with the duty of being apprised of the due compliance with the mandate of [SECTION]. This result inevitably flows from the clear language of [SECTION]. [SECTION], inter alia, provides that no such order shall remain in force for a period of more than twelve days excluding public holidays from the date of detention unless in the meantime it has been approved. The word "it" is, in our view, meant to refer to the order of detention.
16. However, the question would further arise as to whether there is any transgression of the duty in the facts of this case. Actually, in this case, there is no pleading as such by the petitioner. But, this was a contention which was urged by the learned counsel for the petitioner. Learned Senior Government Pleader was directed to make available the records and the records would not bear the petitioner out in his argument that there being any undue delay as such. Therefore, we repel the said argument.
17. We are also not much impressed by the contention taken by the petitioner that [ENTITY]'s case [PRECEDENT] may not apply as such for the reason that this is a case where the detenu was not absconding, but the detaining authority was fed with incorrect information inputs by the sponsoring authority. It is true that in Ext.P2 order it is, inter alia, stated that the detenu was in desertion and the facts were clearly otherwise. As already noted, the question is whether new life is poured into the original order of detention by the springing into existence of a new circumstance and whether the Authority has applied its mind to the said new circumstance. The said relevant input was indeed present and what is more, it is specifically adverted to in Ext.P2 order. We cannot entirely overlook the argument of the learned Senior Government Pleader that what the Authority has stated in Ext.P2 is that the Police Officer has reported that the detenu was in desertion. But, the important circumstance, as noted, is the existence of a new circumstance justifying implementing the order of detention by passing of a addendum order.
18. Learned counsel for the petitioner lastly made an appeal to us that the detention was illegal for the reason that the Report of the Sponsoring Authority was not supplied to the detenu in Malayalam. He pointed out that the detenu was supplied with the grounds of detention and the order of detention in Malayalam, but the Report of the Sponsoring Authority was alone supplied to him in English. He referred to the decision of this Court in Said Mohammed K. v. State of Kerala and Others (2011 (1) KHC 544 (DB .
19. Petitioner also incorporated pleadings. We granted time to the learned Senior Government Pleader also to answer the allegations. A Counter Affidavit has been filed. The learned Senior Government Pleader would point out that actually it may not be correct on the part of the petitioner to contend that the detenu was not able to read and understand the English language. He took us to Exts.R3(3). Ext.R3(3) is a Certificate issued by the teacher-in-charge of the V.P.S. Higher Secondary School for Boys, Venganoor. It is stated, inter alia, that the detenu, according to the records of the School, was a student during the period 1995- 1996 to 1999 - 2000 (Standards VI to X). He appeared for the SSLC Examination in March, 2000. Ext.R3(4) is the order of confirmation of the detention order passed by the Government. Therein, it is contended that the detenu has endorsed, no doubt, in Malayalam that he read and understood the order. It is further pointed out that the detenu has signed in English. Still further, he took us through Ext.R3(5). Ext.R3(5) is the notice issued by the Sub Inspector of Police, Thiruvallam at the time of the arrest wherein the detenu is stated to have, in his own handwriting, written the words "copy received" and signed in the English language. He would, therefore, contend that this is not a case where there is any breach of the law, for the reason that the Report of the Sponsoring Authority was supplied to the detenu in English. Learned counsel for the petitioner, on the other hand, would point out that the very fact that the other documents, namely the grounds of detention and order of detention were supplied to the detenu in Malayalama would show that the Authority has proceeded on the basis that the detenu was not able to read and understand English language and, therefore, the Authorities cannot turn around and rely on the documents relied upon by them. Learned Senior Government Pleader would refer us to the decision of a Division Bench of the Andhra Pradesh High Court in Sri. Mohammed Abdul Qayyum v. Union of India and Others (2004 Crl. L.J. NOC
366), wherein it is, inter alia, held that both the detenus having sufficient knowledge of English, particularly in the background of the fact that they have studied upto SSC in English Medium School and the mere fact that the Detaining Authority chose to communicate translated copies in Urdu which is the mother tongue of the detenus, of the order of detention and grounds of detention, the Court held that since relevant material along with grounds are supplied in English, it does not lead to the inference that the detenus do not have sufficient knowledge of English and there was no violation of [SECTION]. Learned Senior Government Pleader also pointed out that there is no Affidavit filed by the detenu himself.
20. We would think that the petitioner may not be justified in seeking to draw support from the principles enunciated in [PRECEDENT]. It may be true that the grounds of detention and the order of detention was supplied in Malayalam. But, the pertinent question is whether when the issue was raised that the detenu was able to read and write in English, we should feel controlled by the mere fact that some of the documents were supplied in Malayalam. We would think that it is a question to be decided on the facts of each case, on the basis of materials which are made available. In the facts of this case, there is no gainsaying the fact that the detenu has at least studied upto Xth Standard and what is more, appeared for the SSLC Examination. Still, further more, the order of confirmation which is couched in the English language was received by him and apparently the endorsement made by him in his own handwriting and signed by him in English language would clearly appear to show that he was aware of English language, as he has stated that he has read and understood the order. Ext.R3(5) would further show that he has written the words "copy received"
which again would fortify the learned Senior government Pleader in his contention that the detenu was a person who could read and write English language. In such circumstances, we are of the view that we need not aid the petitioner in this Writ Petition. Accordingly, the Writ Petition fails and it is dismissed.
Sd/= [ENTITY], JUDGE Sd/= [ENTITY], JUDGE kbk.
True Copy PS to Judge