IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 WP(Crl.).No. 275 of 2010(S) --------------------------- PETITIONER(S): --------------- RADHA, AGED 55 YEARS, D/O.LAKSHMI, PANDARAVILA LAKSHAM VEEDU,AZHOOR VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.M.RAJAGOPALAN NAIR SRI.S.JAYAPRAKASH (MADAVOOR) RESPONDENT(S): --------------- 1. STATE OF KERALA, REP.BY ADDL. CHIEF SECRETARY TO GOVENMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, COLLECTORATE, THIRUVANANTHAPURAM 3. THE DISTRICT SUPERINTENDENT OF POLCIE (RURAL),THIRUVANANTHAPURAM. SR. GOVERNMENT PLEADER SRI. K.J. MOHAMMED ANZAR FOR R1 TO 4 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 13/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.L. JOSEPH FRANCIS, JJ. ------------------------------------------------- W.P.(Cri) No. 275 of 2010-S ------------------------------------------------- Dated this the 13th day of September, 2010 JUDGMENT Basant,J. The petitioner has come to this Court with this petition for issue of a writ of habeas corpus to direct the production of her son Sunny, S/o. Babu, (hereinafter referred to as `the detenu'), who stands preventively detained with effect from 23/4/10 as per an order of detention (Ext.P1) dated 1/3/10 passed by the 2nd respondent under the provisions of Sec.3 of the Kerala Anti- Social Activities (Prevention) Act, 2007 (hereinafter referred to as `the KAAPA). 2. The 3rd respondent submitted report dated 28/12/09 (Ext.P3) under Sec.3(1) of the KAAPA to the 2nd respondent. It was on the basis of the said report Ext.P3 that the 2nd respondent W.P.(Cri) No. 275 of 2010 -: 2 :- proceeded to pass Ext.P1 order of detention. Along with Ext.P1 order of detention, Ext.P2 grounds of detention was also issued by the 2nd respondent. After the arrest of the detenu in execution of Ext.P1 order on 23/4/10, copies of relevant documents were furnished to the detenu under Sec.7(2) of the KAAPA. It is submitted that order of approval under Sec.3(3) of the KAAPA and confirmation under Sec.10(4) of the KAAPA have already been passed; orders issued and served on the detenu. 3. The detenu is classified as a `known rowdy' by the 2nd respondent in Ext.P1 order. There were as many as 7 cases against the detenu. The relevant details are given below: Sl. No. Police Station Crime No. & Sec. of law Date/time of Crime, Date of report Place of Crime Details of accused arrayed in the FIR and position of the person Date of filing of charge of the case and Sec. of law SC/CC No. Details of accused arrayed in the charge sheet and position of the person Gist of the case (as per charge) 1 2 3 4 5 6 7 8 9 10 1 Chirayin keezhu Cr.47/07 U/s.452, 427, 323,34 IPC and 27 of Arms Act D/O. 2.2.07 14.00 Hrs. D/R. 2.2.07 18.00 Hrs. Pandaravila Laksham veedu 1. Kochukuttan 2. Sunny 10.3.07 U/s. 452, 427, 323 and 34 IPC and 27 of Arms Act. CC 518/07 in JFMC I, Attingal 1. Shibu @ Kochukuttan 2. Sunny On 2.2.07 evening the accused criminally trespassed into the house of one Usha D/o. Kamalakshi manhandled her and destroyed the door of the house and other house hold articles by using sword and other weapons and thereby caused a lose of Rs.1000/- to the compt. W.P.(Cri) No. 275 of 2010 -: 3 :- Sl. No. Police Station Crime No. & Sec. of law Date/time of Crime, Date of report Place of Crime Details of accused arrayed in the FIR and position of the person Date of filing of charge of the case and Sec. of law SC/CC No. Details of accused arrayed in the charge sheet and position of the person Gist of the case (as per charge) 2 Chirayin keezhu Crime 69/07 U/s. 143, 147, 148, 342, 323, 324, 362 and 149 IPC D/O. 17.2.07 4 AM D/R 18.2.07 9 AM Near Azhoor Podiyante mukku 1. Kochukuttan 2. Sajeev 3. Rajeev and 12 others who residing at Pandaravila Colony 14.6.07 Sec.143, 147, 148, 342, 323, 324, 362, 387 and 149 IPC. CC 276/09 in JFMC-I, Attingal A1 Kochukuttan @ Shibu A2 Shaiju @ Pokkam Shaiju A3 Rajeev A4 Binu @ Karumba n Binu, A5 Sajeev A6 Sobhaku mar A7 Sunny The accused unlawfully assembled at Podiyantemukku and restrained the compt. and his friends there assaulted them and taken into a lonely place and contacted the 5th compt. through mobile phone and demanded Rs.5000/- as ransom for releasing the compt. and others. After receiving the amount from the 5th compt. they released them. 3 Chirayin keezhu Cr.278/08 U/s. 143, 147, 148, 149, 365, 323, 324 and 326 IPC D/O. 1.12.08 6 PM D/R 3.12.08 10.30 AM Kolichira 1.Sajeev 2.Kochukuttan 3.Sunny 4.Shyju 5.Karumban Binu 27.4.09 U/s. 143,147, 148, 149, 323, 324, 326, 365 and 109 IPC CC 563/09 in JFMC-I, Attingal A1 Sajeev A2 Shibu @ Kochukuttan A3 Sunny A4 Pokkam Shiju A5 Karumban Binu A6 Serin A7 Baiju A8 Ambu @ Shijilal The accused forcefully taken the compt. in a car and brought him into an unoccupied land and inflicted injuries to him due to previous enmity. 4 Chirayin keezhu Cr.265/09 U/s. 341, 323, 294(b), 506 (ii) and 34 IPC D/O. 30.7.09 17.20 Hrs. 30.7.09 20.00 Hrs. In front of Ganapathy temple, Azhoor 1.Sunny 2.Shiju @ Pokkam Shaiju 3.Motta Binu 27.9.09 U/s. 341, 323, 294 (b), 506 (ii) and 34 IPC JFMC-I, Attingal CC No. not assigned A1 Sunny A2 Shaiju @ Pokkam Shaiju A3 Vinod @ Motta Binu The accused after assaulted one Ramachandran at Azhoor, trespassed into a Tata Sumo car which was parked there, threatened the driver by showing a knife and forced him to took the vehicle for escaping from the scene of occurrence. The accused did not allow the driver to stop the vehicle even when the police demanded to stop. Later Ramachandran died. W.P.(Cri) No. 275 of 2010 -: 4 :- Sl. No. Police Station Crime No. & Sec. of law Date/time of Crime, Date of report Place of Crime Details of accused arrayed in the FIR and position of the person Date of filing of charge of the case and Sec. of law SC/CC No. Details of accused arrayed in the charge sheet and position of the person Gist of the case (as per charge) 5 Chirayin keezhu Cr.266/09 U/s. 393 IPC D/O. 30.7.09 3 PM 1.8.09 1 PM Kadakom Toddy Shop 1.Sunny 2.Shaiju 3.An identifiable person 25.9.09 U/S. 393 IPC JFMC-I, Agginga l CC.No. not assigned A1 Sunny A2 Shiju A3 Vinod The accused snatched away a mobile phone and a purse from the pocket of the compt. and threatened him. Later on the intervention of one Shiju, who is well known to both the accused and compt., the accused thrown the mobile phone and purse towards the compt. W.P.(Cri) No. 275 of 2010 -: 5 :- Sl. No. Station Crime No. & Sec. of law Date/time of Crime, Date of report Place of Crime Details of accused arrayed in the FIR and position of the person Gist of the case Whether the involvement of this person has been ascertained. If yes, how. 1 2 3 4 5 6 7 8 6 Chirayin keezhu 281/08 U/s. 120(b), 201, 143, 147, 148, 149, 302 IPC and Sec.3 and 5 of Explosive Substances Act D/O. 4.12.08 5.30 PM D/R. 4.12.08 8 PM Near Perunguzhy Anupama Jn. Sunny, Kochukuttan, Karumpan Binu, Pokkam Shaiju, An identifiable person The accused with an intention to kill the victim Konjumon, put him down by hitting with a car while he was walking through the public road and the accused created a terrible atmosphere there by exploding country bombs and inflicted severe injuries to the victim with choppers. The victim was succumbed to the injuries while undergoing treatment at MCH, Thiruvananthapuram. Yes. While examine the witnesses the involvement of the accused has been ascertained and report has been sent to the court in that effect. 7 Chirayin keezhu 264/09 U/s. 294(b), 452 and 302 r/w 34 IPC D/O. 30.7.09 17.15 Hrs. D/R. 30.7.09 19.00 Hrs. In front of Ganapathy Temple Azhoor 1. Sunny 2. Shaiju An identifiable person On 30.7.09 at 5.15 Hrs. the accused and his associates trespassed into a bakery shop run by one Ramachandran and bought a polythene carry bag. The demand of the shopkeeper for payment provoked the accused and they abused and assaualted him with a wooden log with an intention to kill. Being a heart patient Ramachandran died on the spot. Yes. From the statement of the witnesses. The detenu having been arrested in execution of Ext.P1 on 23/4/10 shall have to continue in custody till 23/10/10. 4. Before us the learned counsel for the petitioner and the learned Government Pleader have advanced their arguments. The learned counsel for the petitioner assails the impugned order on the following grounds: (i) The detaining authority did not apply its mind pointedly to the question whether the 7 cases can be taken into reckoning to decide whether the alleged detenu is a known rowdy. W.P.(Cri) No. 275 of 2010 -: 6 :- (ii) The detaining authority did not apply its mind to all relevant circumstances to decide whether preventive detention of the detenu is necessary to prevent him from committing anti- social activities. (iii) At any rate, the detaining authority ought to have noted that the alleged incidents do not cause any threat at all to public order and at worst, they can only be said to affect law and order. (iv) There is inordinate delay and excessive gap of time between Ext.P3 dated 28/12/09 and Ext.P1 dated 1/3/10 as also Ext.P1 dated 1/3/10 and 23/4/10 - the date of its execution and consequently it must be held that there is no live link or proximate nexus between the alleged past incidents and the decision to preventively detain the detenu. (v) Vital documents were not referred to in the order of detention; nor were copies thereof furnished to the detenu. 5. We shall now proceed to consider the challenge raised on the 5 grounds referred above. 6. Ground Nos.(1) and (ii): It is by now well settled and trite that an order of detention can be passed by the detaining authority only if the detaining authority is in a position to W.P.(Cri) No. 275 of 2010 -: 7 :- entertain both the former objective satisfaction as well as the latter subjective satisfaction referred to in Sec.3 of the KAAPA. The learned counsel for the petitioner argues that even though there are 7 cases referred above against the petitioner, cases - Sl.Nos.1, 6 and 7 should not have been taken into reckoning at all to decide whether the detenu is a known rowdy or not. 7. According to the learned counsel cases - Sl.Nos.6 and 7 have not been relied upon by the detaining authority and hence it is unnecessary to advert to them in detail. Both, as indicated above, are cases where the offences alleged include the offences punishable under Sec.302 IPC. The detaining authority appears to have entertained the impression that cases in which final reports have not been filed cannot be taken into reckoning to decide whether the detenu is a known rowdy or not. The learned Government Pleader argues that this impression entertained by the detaining authority is incorrect and not supported by law. We find merit in that submission. The decision in Elizebath George v. State of Kerala (2008 (4) KLT 425) which is binding upon us now clearly shows that it is not permissible to insist that final report must invariably be filed before a case is taken into reckoning to decide whether the W.P.(Cri) No. 275 of 2010 -: 8 :- proposed detenu is a known rowdy/known goonda. It is true that doubts have been expressed on the correctness of the said proposition in the decisions in Sathi v. State of Kerala (2009 (2) KLD 377 [DB]) and Ranjini v. State of Kerala (2009 (3) KLT 500); but no contra proposition has been laid down by any larger Bench. For the moment, Elizebath George (supra) hence holds the field. The fact that the dictum therein has been doubted in some subsequent decisions of other Division Benches cannot detract against the validity and binding nature of the proposition of law declared in Elizebath George (supra). The detaining authority could certainly have considered cases - Sl.Nos.6 and 7 referred above in which the culpable involvement of the detenu is confirmed and report already filed. 8. Be that as it may, inasmuch as the detaining authority has not chosen to place reliance on cases - Sl.Nos.6 and 7, we do not propose to look into those cases while considering the acceptability of the initial/threshold/objective satisfaction entertained by the detaining authority. 9. That leaves us with the 5 cases i.e., Sl.Nos. 1 to 5. There can be no doubt that cases - Sl.Nos.2 to 4 can be taken into consideration for the purpose of considering the inclusion of W.P.(Cri) No. 275 of 2010 -: 9 :- the detenu as a known rowdy. On that aspect, there can be no doubt whatsoever. On the basis of cases - Sl.Nos.2 to 5 referred above, it appears to us to be easy to conclude that the detenu was rightly classified as a known rowdy. 10. The learned counsel for the petitioner argues that case No.1 must have been eschewed as that would fall within proviso (ii) to Sec.2(p) of the KAAPA which defines a `known rowdy'. The learned Government Pleader contends that the dispute in case No.1 cannot be held to be a dispute between neighbours or a dispute between immediate neighbours. The nature of the dispute is totally alien to the status of parties as neighbours and therefore proviso (ii) can have no application, contends the learned Government Pleader. The learned counsel for the petitioner, in turn, places reliance on the decision in Anoop v. State of Kerala (2009 (4) KLT 923) and contends that such a dispute would certainly attract proviso (ii) to Sec.2(p) of the KAAPA. 11. Be that as it may, we do not intend to delve deeper into that controversy. For the sake of arguments, we eschew case No.1 completely while considering the question whether the detenu is a known rowdy or not. Even eschewing Cases - Sl. W.P.(Cri) No. 275 of 2010 -: 10 :- Nos.1, 6 and 7, the four remaining cases i.e., Cases Sl.Nos.2 to 5 do bring the detenu squarely within the four walls of the definition of `known rowdy' under Sec.2(p) of the KAAPA. Sec.7 (4) of the KAAPA obliges the courts to consider the validity of the detention eschewing some of the grounds which have been wrongly taken into consideration. Thus, even assuming that Case - Sl.No.1 has wrongly been taken into consideration, Cases - Sl.Nos.2 to 5 completely and perfectly justifies the initial threshold objective satisfaction entertained by the detaining authority that the detenu is a known rowdy answering the definition in Sec.2(p) of the KAAPA. The first contention raised must therefore fail. 12. The learned counsel for the petitioner contends that the latter subjective satisfaction has not been validly entertained. It is trite that this latter subjective satisfaction is not justiciable. If the materials relied on by the detaining authority are legally cognizable, courts, in judicial review, cannot sit in appeal over the satisfaction entertained. The learned counsel for the petitioner contends that there has been a long gap of time between the incidents referred to in Cases - Sl.Nos.2 to 5 and the order of detention. Hence, at any rate, they could not have been W.P.(Cri) No. 275 of 2010 -: 11 :- made use of to entertain the latter subjective satisfaction. For the reason that the nexus between the incidents referred to in Cases - Sl.Nos.2 to 5 and the order of detention dated 1/3/10 is snapped, the latter subjective satisfaction is vitiated and deserves to be interfered with, argues the learned counsel. 13. We are unable to accept this contention. Cases - Sl.Nos.2, 3, 4 and 5 had taken place on 17/2/07, 1/12/08, 30/7/09 and 30/7/09. The gap of time between these incidents and the order of detention (Ext.P1 dated 1/3/10) cannot be held to be so wide and yearning as to conclude that the live link or proximate nexus is snapped. Moreover, it is relevant to note that in Ext.P1 order the detaining authority had relied on Cases - Sl.Nos.6 and 7 while considering whether the nexus stands snapped or not. After referring to Cases - Sl.Nos.1 to 5, the detaining authority has taken note of Cases - Sl.Nos.6 and 7 to come to the conclusion that the criminal activities of the detenu was continuing. In this view of the matter, we take the view that Cases - Sl.Nos.2 to 5 by themselves and read along with Cases - Sl.Nos.6 and 7 are sufficient to validly induce the latter subjective satisfaction in the mind of the detaining authority. The challenge raised on the second ground must also, in these W.P.(Cri) No. 275 of 2010 -: 12 :- circumstances, fall to the ground. 14. Ground No.(iii): The learned counsel for the petitioner argues that even if Cases - Sl.Nos.2 to 5 were taken into reckoning, it has to be seen that the alleged contumacious acts, at worst, threaten only law and order and they do not pose any threat to public order and tranquility. As to what can threaten public order as distinguished from a mere threat to law and order has been considered in many earlier precedents. We may advantageously refer to the statement of law in paragraph- 24 of Shruthi v. State of Kerala (2009 (4) KLT 893). 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 will fall within the ambit of threat to public order. We are in complete agreement with the said statement of the law. We have looked into the facts of Cases - Sl.Nos.2 to 5 in particular and Cases - Sl.Nos.6 and 7 later to decide whether the acts alleged do threaten public order or do merely threaten law and W.P.(Cri) No. 275 of 2010 -: 13 :- order. We do not think it necessary to extract the facts in each case afresh. In Col.No.10 in the tabular column referred above in respect of Cases - Sl.Nos.1 to 5 and in Col.No.7 relating to Cases - Sl.Nos.6 and 7 we have narrated the facts in a nutshell. By no stretch of imagination can it be held that Cases - Sl.Nos.2 to 5 and Cases - Sl.Nos.6 and 7 do pose a threat only to law and order and not public order at all. We have no hesitation to agree that the nature and gravity of the acts alleged are such that they do threaten and endanger public tranquility affecting the tempo of life of the community. The challenge raised on Ground No.(iii) also does therefore fail. 15. Ground No.(iv): It is next contended that there is a gap of time between Ext.P3 report (dated 28/12/09) submitted by the 3rd respondent to the 2nd respondent and Ext.P1 order of detention dated 1/3/10. There is also a long gap of time between the date of Ext.P1 and 23/4/10 - the date of its execution. These, in turn, must lead the court to the conclusion that the proximate nexus/live link have been snapped, contends the learned counsel for the petitioner. We are unable to accept this contention. Ext.P1 is dated 1/3/10 and the order of detention has been executed on 23/4/10. Similarly, Ext.P3 report dated 28/12/09 W.P.(Cri) No. 275 of 2010 -: 14 :- was received by the 2nd respondent on 15/1/10 and Ext.P1 order was passed on 1/3/10. In the counter statement filed by the 3rd respondent, the circumstances, under which this gap of time happened to intervene have been explained. It has often been repeated that the exercise is not one merely of counting the number of days between the two events. The totality of circumstances will have to be taken into consideration. We find it impossible to accept the contention that the gaps of time between Ext.P3 and Ext.P1 and between Ext.P1 and the date of execution are such as to vitiate or nullify the latter subjective satisfaction entertained by the detaining authority. The challenge on this ground also hence fails. 16. Ground No.(v): Lastly it is contended that the relevant documents have not been adverted to by the detaining authority and that copies thereof have not been furnished to the detenu. What are these documents? The counsel argues, first of all, that bail orders in several cases have not been referred to by the detaining authority; nor have copies thereof been furnished to the detenu. It is further submitted that though in the counter statement filed by the 3rd respondent, there is reference to initiation of proceedings under Sec.107 Cr.P.C. the W.P.(Cri) No. 275 of 2010 -: 15 :- order passed was not referred to; nor was copy thereof furnished to the detenu. This amounts to infraction of the mandate of Sec.7(2) of the KAAPA, contends counsel. 17. We do not find much substance in this contention also. All the crimes have been committed by the detenu after the commission of offences in the earlier crimes and he was released on bail in such crimes. There is no contention that there was any such condition imposed on any order granting bail that it was unnecessary to resort to the course of preventive detention later. Non-reference to the earlier bail orders is not, in these circumstances, found to be of crucial relevance. So far as the proceedings under Sec.107 Cr.P.C. is concerned, it is very evident that such proceedings were initiated after the last of the incidents and after the passing of Ext.P1 order. Even subsequent to the passing of Ext.P1 order, the detenu allegedly involved himself in criminal offences. It is thereafter, the counter statement clearly reveals, that proceedings were initiated under Sec.107 Cr.P.C. The detaining authority, while passing Ext.P1 order dated 1/3/10, could not obviously have referred to the subsequent event of initiation of proceedings under Sec.107 Cr.P.C. The challenge raised on this ground also fails. W.P.(Cri) No. 275 of 2010 -: 16 :- 18. No other contentions are raised. We are satisfied, in these circumstances, that the impugned order of detention and the continued detention of the detenu in execution of the impugned order of detention do not, in any way, warrant interference. The challenge raised in this writ petition therefore fails. 19. In the result, this writ petition is dismissed. Sd/- R. BASANT (Judge) Sd/- M.L. JOSEPH FRANCIS (Judge) Nan/ //true copy// P.S. to Judge