IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932 WP(C).No. 555 of 2011(T) ------------------------ PETITIONER: --------------- ASTHAF,AGED 29 YEARS,S/O.AZEEZ, RESIDING AT PATTAYIL HOUSE,KATTAYADU,BATHERY, WAYANAD DISTRICT. BY ADV. SRI.A.V.JAMES SRI.P.DALBI EMMANUEL RESPONDENTS: --------------- 1. THE STATE OF KERALA,REP.BY SECRETARY TO GOVERNMENT,SECRETARY TO HOME AFFAIRS,SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. THE INSPECTOR GENERAL,KANNUR DIVISION, KANNUR-670 001. 3. THE SUPERINTENDENT OF POLICE, WAYANAD DISTRICT,PIN-67596. 4. THE CIRCLE INSPECTOR OF POLICE, SULTHAN BATHERY TALUK,WAYANAD DISTRICT, PIN-673592. GOVERNMENT PLEADER, SRI P K BABU FOR R1TO4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 555 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of January 2011 JUDGMENT Joseph J., The petitioner has approached this Court seeking the following prayer: “Issue writ of certiorari or any other writ order or direction thereby call for the records leading to Crime No.308 of 2005, 321 of 2007, 341 of 2008, 187 of 2009 of Sulthan Bathery Police against the petitioner under Section 22(a) of NDPS Act and quash the Ext.P1 notice and temporary order of the 2nd respondent.” 2. Briefly put the facts of the case are as follows. The petitioner is a young man aged 29 years and he is a coolie worker. In the year 2005, the fourth respondent has charged a false case W.P.(C) No. 555 of 2011 :2: under Section 22(a) of the NDPS Act against the petitioner. The petitioner was informed by the fourth respondent that it is only a petty case and insisted the petitioner to admit the offence. The petitioner admitted the offence before the Magistrate and he was sentenced to pay fine. The petitioner made some arguments with the fourth respondent and his subordinates. Due to that vengeance three more cases were charged against the petitioner. Ext.P1 is the order issued to the petitioner under Sec.15 of the Kerala Anti-Social Activities (Prevention Act), 2007 (hereinafter referred to as 'the Act'), which is dated as 27.11.2010. By Ext.P1, the petitioner is restrained from entering the Wynad District for one year. 3. We heard the learned counsel for the petitioner and the learned Government Pleader. 4. The case of the petitioner, of course, in the Writ petition is that no notice was served on him, he would not come under the definition of 'known rowdy', there are no complaints by the public or any other person against the petitioner to make him a 'known rowdy'. W.P.(C) No. 555 of 2011 :3: 5. A counter affidavit is filed on behalf of the first respondent, wherein reference is made to the cases under the NDPS Act. It is stated that he is classified as a 'known goonda' and a drug offender as defined in the Act. A report was submitted from the Superintendent of Police to the Inspector General of Police. The Inspector General of Police felt that there is no other legal provisions to prevent the accused from his anti social activities. A temporary order was issued on 3.10.2009 restricting his entry to Wynad district and also notice to offer his explanation was given. The show cause notice was served on the petitioner on 14.10.2009. Since the petitioner did not offer any explanation within the stipulated time, the Inspector General of Police issued Ext.P1 order restricting his entry to Wynad districts for a period of one year. W.P.(C) No. 555 of 2011 :4: 6. Section 15 of the KAAP Act, inter alia, restricting the movements of persons is quoted below: “15. Power to make orders restricting the movements of certain persons:- (1) The District Magistrate or a Police Officer of and above the rank of Deputy Inspector General having jurisdiction, if satisfied on information received in respect of a known goonda or known rowdy, after having given him an opportunity to be heard by notice served on him or pasted at his ordinary place of residence, if any in Kerala, that he is indulding in or about to indulge in or likely to indulge in anti-social activities and with a view to prevent him from so acting at any place within the jurisdiction of such Magistrate or officer,may make an order:- (a) directing that, except insofar as he may be permitted by the conditions made in the order, he shall not visit any such area or place as may be specified in the order, for a period not exceeding one year: W.P.(C) No. 555 of 2011 :5: (b) requiring him to report his movements within the State, in such manner, at such times, and to such authority or person as may be specified in the order, for a period not exceeding one year: Provided that a copy of the order along with the grounds for issuing such order shall be communicated to the Government through the Director General of Police. (2) Any person aggrieved by an order issued under sub-section (1) may represent before the Advisory Board within fifteen days of the date of service of the order and the Board on receipt of such representation, consider the same, and after enquiring into the facts and circumstances in such manner as it may deem fit, shall within thirty days of the date of receipt of such representation, annual, amend or confirm the order, either in part or in full. (3) The Government or the authority which issued the order under Sub-section (1) may, on its own motion, annual or amend the order at any time either in part or in full. W.P.(C) No. 555 of 2011 :6: (4) Any person violating an order under sub- section (1) shall be liable to be punished with imprisonment for a term which may extend to three years. (5) If an order issued under sub-section (1) above has ceased to have effect for any reason, a new order under the said sub-section may be issued against the same person, if he continues to be a person falling within the definition of known rowdy or known goonda as given in Section 2(o) or Section 2(p) and if, after such cessation, he has again involved, in an offence of the nature described in Section 2(o) or Section 2(p) atleast in one instance. 7. We must notice certain features. Sec.15 does not appear to contemplate passing of any preliminary order. Sec.15 contemplates passing of a final order restricting the entry upto a maximum period of one year. More importantly, Sec.15 contemplates action by the authority on it being satisfied on information received in respect of known rowdy or a known goonda and after giving him an opportunity for being heard by notice served on him or pasted at his W.P.(C) No. 555 of 2011 :7: ordinary place of his residence in Kerala, that he is indulging in or about to indulge in or likely to indulge in anti-social activities and the maximum period of restriction is limited to one year. A perusal of Ext.R1(a), which purports to be the preliminary order and also show cause notice would show that the authority has come to the conclusion that he must be served with an order restricting him from visiting Wynad district under Sec.15. It is stated that on the basis of the report he is fully satisfied. This satisfaction, though it may be stated that it is in the show cause also as it is combined communication, is without giving an opportunity to the petitioner. Thereafter what is done in Ext.P1 is that after referring to the show cause notice Ext.R1(a), absence of any cause shown by the petitioner, report of the officers the interim order is confirmed. 8. Ext.R1(a) purports to be a show cause notice, wherein we find that the authority has also passed an interlocutory order and arrived at the satisfaction without issuing notice to the petitioner that he should not enter into Wynad district. We feel that there is no meaningful compliance with the principles of natural justice in W.P.(C) No. 555 of 2011 :8: the facts of this case. We must further hold that Sec.15 does not provide for passing of a preliminary order as was done by the authority. 9. In the circumstances, we dispose of the writ petition as follows: (i) Ext.R1(a) read with Ext.P1 will be treated as a notice under Sec.15. (ii) The petitioner shall be present before the second respondent on 27.1.2011 at 11 a.m. and he will be free to make submissions and after considering the materials and submissions, the second respondent may proceed to pass order under Sec.15, in accordance with law. K.M. JOSEPH, (JUDGE) M. L. JOSEPH FRANCIS, (JUDGE) dl/