IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 WP(C).No. 35683 of 2010(I) ------------------------------------- PETITIONER(S): ---------------------- N.SABU, @ GILBERT, CHEKKUMMOOTTIL HOUSE, EAST WEST NAGAR 47, THENGASSERY WARD, KOLLAM DISTRICT. BY ADV. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS SRI.MATHEW SUNNY SRI.ANOOP V.NAIR RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REP. BY THE ADDITIONAL CHIEF SECRETARY, HOME(SSA) DEPARTMENT GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-1. 2. THE ADVISORY BOARD, KERALA ANTI SOCIAL ACTIVITIES(PREVENTION) ACT 2007, SREENIVAS, VIVEKANANDA NAGAR, PADOM ROAD, ELAMAKARA.P.O., ERNAKULAM, PIN-682026, REPRESENTED BY ITS SECRETARY. 3. THE DISTRICT MAGISTRATE, CIVIL STATION, KOLLAM-691013. 4. THE DISTRICT SUPERINTENDENT OF POLICE, KOLLAM-691001. 5. THE CIRCLE INSPECTOR OF POLICE, WEST POLICE STATION, KOLLAM-1. tss W.P.(C) NO.35683/2010 6. THE SUB INSPECTOR OF POLICE, KOLLAM WEST POLICE STATION, KOLLAM-1. 7. THE SUB INSPECTOR OF POLICE, PALLITHOTTAM POLICE STATION, KOLLAM-691007. R1 , 3 TO 7 BY SR. GOVT. PLEADER SRI.P.RAVINDRA BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/01/2011, THE COURT ON 20/01/2011 DELIVERED THE FOLLOWING: tss W.P.(C) NO.35683/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER ISSUED BY THE DISTRICT COLLECTOR, KOLLAM AS ORDER NO.M9-42833/KAAPA/10 DTD. 16.7.2010. P2:- COPY OF THE ORDER NOP.70334/SS. A5/2010/HOME DTD. 25.9.2010 ISSUED BY THE IST RESPONDENT. P3:- COPY OF THE ORDER G.O.(RT) NO.3408/2010/HOME DTD. 11.11.2010 ISSUED BY THE IST RESPONDENT. P4:- COPY OF THE ORDER PASSED BY THE SESSIONS COURT, KOLLAM DTD. 10.10.2008 IN CRL.M.P. 2985/2008. P5:- COPY OF THE ORDER DTD. 27.2.2008 IN BA. 1141/2008. P6:- COPY OF THE FINAL REPORT IN CRIME NO.214/2010 OF PALLITHOTTAM POLICE STATION PENDING BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT-II, KOLLAM AS CC. 2079/2010. P7:- COPY OF THE NEWS ITEM PUBLISHED IN THE MATHRUBHOOMI DAILY ON 4.4.2010. TRUE COPY P.S. TO JUDGE tss K.M.JOSEPH & P.BHAVADASAN, JJ. ------------------------------------------------------------------------ WP(C) No.35683 of 2010-I ------------------------------------------------------------------------ Dated 20th January 2011 Judgment Bhavadasan, J. In this writ petition filed under Article 226 of the Constitution of India, the petitioner challenges his preventive detention, ordered by the third respondent, as confirmed by the first respondent. The main issue that arises for consideration is whether a crime registered on the basis of a complaint by a police officer can be taken into consideration for computing the three separate instances made mention of in Section 2(p)(iii) of the Kerala Anti Social Activities (Prevention) Act, 2007 (for short, the KAAPA Act). 2. Admittedly, the petitioner is accused in three crimes registered by various Police Stations, the details of which are given below : i. Crime No.31/08 registered by the Kollam West Police Station for the offence punishable under WPC 35683/10 2 S.394 IPC, reported on 30.01.2008, which is pending as CC No.112/09 before the JFCM-II, Kollam. ii. Crime No.769/09 registered by the Kollam West Police Station for the offences punishable under Ss.392 and 394 IPC, reported on 28.12.2009, pending as CC No.33/10 before the CJMC, Kollam. iii. Crime No.214/10 registered by the Pallithottam Police Station for the offences punishable under Ss.341, 294(b), 323, 354, 506(ii) and 427 r/w 149 IPC, reported on 24.03.2010, pending as CC No.2079/10 before the JFCM-II, Kollam. 3. According to the respondents, since the anti social activity of the petitioner was found to be a threat to peace, prejudicial to the maintenance of public order and his activities endangered the peaceful life of the people of the locality, on the basis of a report submitted by the Sub WPC 35683/10 3 Inspector of Kollam West Police Station, the fourth respondent after perusing the records and on being satisfied that proceedings under the Act needs to be initiated against the petitioner, made a recommendation to that effect to the third respondent along with the records of the case. The fourth respondent did so on 05.07.2010. The third respondent passed an order of preventive detention of the petitioner on 16.07.2010. The petitioner was taken into custody on 11.09.2010. The representation filed before the Advisory Board turned out to be futile and the Government confirmed the order of detention. 4. The learned counsel appearing for the petitioner challenges the order of preventive detention on five grounds. They are : (1) The report of the Sub Inspector of Police, Kollam, West Police Station was forwarded to the fourth respondent on 05.04.2010. The fourth respondent forwarded his recommendation to the third respondent only on 05.07.2010. There WPC 35683/10 4 is unusual delay in sending the report to the third respondent and that vitiates the order. 2) The order of detention was passed on 16.07.2010, but it is executed only on 11.09.2010. There is no satisfactory explanation for the delay. 3) The statement of the complainant in Crime No.214/10 was not forwarded by the fourth respondent to the third respondent. That has caused serious prejudice to the petitioner. 4) It was while the proceedings under Section 107 of the Code of Criminal Procedure was pending that the preventive order of detention was passed. That has also caused serious prejudice to the petitioner. 5) The act of the respondents in taking into consideration a crime registered on the basis of a complaint of the police officer is contrary to law. WPC 35683/10 5 5. In support of his contention regarding the delay, the learned counsel for the petitioner relied on the decision reported in Soja Beegum v. Additional Chief Secretary to Government (2009(4) KLT 550) and the judgment in WP(Crl) No.553/09. It is pointed out by the learned counsel for the petitioner that the delay from 05.04.2010 to 05.07.2010 has not been explained by the respondents at all, so also the delay in executing the order of detention. It is also contended that it was while the proceedings before the Sub Divisional Magistrate was posted for the appearance of the petitioner that he was taken into custody. There was no need of any hurry to do so. The act of the respondents is fraught with mala fides. Dilating on the fifth point and relying on the decisions reported in Samuel George v. State of Kerala (2010(1) KLT 294) and Radha Thankappan v. State of Kerala (2009(4) KLT SN 38 Case No.37), it was contended that the respondents could not have taken note of the first crime since that has been WPC 35683/10 6 registered on the basis of a complaint filed by a police officer. If that case is excluded from consideration, then, the requirement of Section 2(p)(iii) is not satisfied and the order of detention is bad in law. 6. In reply, the learned Public Prosecutor pointed out that there is absolutely no merit in any of the contentions taken by the petitioner. As regards the delay, it is pointed out that merely on receipt of a report from the sixth respondent, the fourth respondent could not act. He had necessarily to verify the records, collect materials and evaluate them. Thereafter, he had to decide whether recommendation needs to be made as the sponsoring authority to the third respondent for the preventive detention of the petitioner. This exercise would necessarily take some time and that is all that has happened in the case on hand. There is no unusual delay on the part of the fourth respondent. Further, even if there was any delay on the part of the fourth respondent in forwarding the papers to the third respondent with his recommendations, that has WPC 35683/10 7 not caused any prejudice to the petitioner. There is absolutely no delay in implementing the order of detention. As regards the third contention, it is pointed out that the allegation is not true. The document was, in fact, forwarded to the third respondent along with records. Even assuming it is not so, no consequences follow. The third respondent could not scrutinise the records which led to the filing of a final report and come to a different conclusion. He has to confine himself to the records before him and arrive at a conclusion. That, of course, is a subjective satisfaction of the third respondent. Accordingly, it is contended that the allegation has no basis. It is true that the proceedings under Section 107 of the Code of Criminal Procedure had been initiated against the petitioner. It is also true that it was pending. But it needs to be noticed that the third crime was committed by the petitioner soon after the proceedings had been initiated under Section 107 against him. Therefore, the sixth respondent forwarded report to the fourth respondent with necessary documents. Thereafter, WPC 35683/10 8 the petitioner had absconded and that delayed the arrest. The petitioner cannot take advantage of that fact. Finally, it was contended that merely because the first crime has been registered on the basis of a complaint by a police officer, the petitioner cannot go out of the purview of of Section 2(p)(iii) of the KAAPA Act. If the proposition advanced by the petitioner is to be accepted, it would lead to serious consequences. The result would be that any crime committed against a police officer will be out of the reckoning for the purpose of the Act. That surely cannot be the intention of the provision. The relevant clause only means that the complainant and the person who registers and investigates the crime should not be one and the same person. That being the position, there is no merit in the contentions taken by the petitioner. In support of his contentions, the learned Public Prosecutor relied on the following decisions : 1. Vinija v. State of Kerala (2009(3) KLT 110) – for the proposition that subjective satisfaction under Section 3 is WPC 35683/10 9 relating only to the need for detention. 2. Uma v. State of Kerala (2010(4) KLT 511) wherein it is held that the detaining authority should form his subjective satisfaction based on the materials before him. 3. Safiya v. State of Kerala (2009(1) KLT 7) – In this decision, it is held that the District Magistrate cannot scrutinise the records leading to the final report under S.173(2) Cr.P.C. and come to a different conclusion. 4. Sathi v. State of Kerala (2010(1) KLT SN 65 Case No.80) – It is held in this decision that merely because copies of all documents are not furnished, it is not a ground to interfere. 7. Before going into the rival contentions, it will be useful to understand the scheme, object and purpose of the Act. It will also be profitable to familiarise with the relevant provisions of the Act. 8. The object of the Act seems to be to prevent and control anti social activities by certain undesirable persons. It also contains the precautions against misuse of WPC 35683/10 10 the provisions of the Act. Essentially, the Act deals with two types of persons. They are – known goonda and known rowdy. The two terms are defined under Sections 2(o) and 2(p) of the KAAPA Act respectively. A known goonda, as defined under Section 2(o) should have committed an act falling under Section 2(j) and a known rowdy should have done an act falling under Section 2(t). There is a proviso also to Section 2(o). But, both Sections 2(o)(ii) and 2(p)(iii) exclude reckoning of a crime registered on the basis of a complaint filed by a police officer for determining if a person is a known goonda or a rowdy as the case may be. 9. Section 3 of the Act provides for preventive detention of a person falling under Sections 2(o) or 2(p) of the Act. Either the State Government or an authorised officer can take action under the Act on the basis of the report forwarded to them by the Superintendent of Police of the district concerned. If the preventive detention is ordered by the authorised officer, he has to forward reports to the State Government and the Director General of Police. He WPC 35683/10 11 has to send copies of the order and the documents or records which has a bearing on the issue. An order passed by the authorised officer has life only for 12 days from the date of detention, unless approved by the Secretary of the Home Department. 10. Section 7 of the KAAPA Act provides for the procedure to be followed and the remedies available to the detenue. Section 7(2) provides that the instances of offences, with copies of relevant documents on the basis of which the person was categorised as known goonda or known rowdy and also such documents and materials relating to his activities on the basis of which his detention is found necessary, must be furnished to the detenue. This will have to be done at the earliest and in any case, within five days of detention. He shall be informed of his right to represent to the Government and the Advisory Board against his detention. 11. Section 8 of the Act provides for constitution of an Advisory Board. Section 9 of the Act deals with the WPC 35683/10 12 functions to be carried out by the Advisory Board. Section 10 deals with the procedure to be followed by the Advisory Board and the action to be taken in pursuance of the decision of the Advisory Board. Section 12 provides for the maximum period of detention, which is six months. Of course, an order of detention can be revoked at any time. There are other provisions as well, which are not very relevant for the present purpose. 12. It will not be out of place here to refer to Articles 21 and 22 of the Constitution of India. Article 21 embodies the concept of human rights covered by International covenants, agreements and treaties. Article 22 of the Constitution recognises preventive detention. But, it also lays down stringent conditions to ensure that the provisions of the statutes dealing with preventive detention are not misused. Obviously, the Act in question will have to satisfy the constitutional mandate. It has been held that the principle enunciated in the said constitutional provision gets transmitted or superimposed in all statutes or WPC 35683/10 13 legislations dealing with preventive detention. 13. The Act, popularly known as the KAAPA Act, enables the State to curtail the liberty of a person for his contumacious or anti social activities posing threat to the society. It is a preventive measure. Obviously, it is a draconian measure. Courts are very zealous in safeguarding the life and liberty of a person. Therefore, while exercising judicial review, it is necessary that the proceedings are scrutinised very carefully and strictly when an instance of preventive detention is challenged before it. The materials relied on, the manner in which the authorities have acted, the nature of satisfaction entered into by the respective authorities and the necessity for preventive detention are reviewed by the courts. The judicial review stands confined to ensuring that the proper procedure has been followed. Preventive detention can normally be resorted to only in cases where the ordinary laws fail to take care of the situation. It may happen that in spite of innumerable penal laws available, the law enforcing WPC 35683/10 14 authority may find the steps available to be inadequate. However, the provisions of the Act in question can be resorted to only under exceptional circumstances and is not to be resorted to on the drop of a hat or as a matter of course. It would appear that only if it is found that the nefarious activities of the person is uncontrollable or cannot be curtailed and is likely to cause breach of peace and is a threat to the society, that the provisions of the Act can be applied to such a person. 14. As already noticed, there are several steps to be taken before the preventive detention of a person can be resorted to. Once a decision is taken to do so, the order of detention will have to be immediately executed unless there are compelling reasons like absconding etc., which prevent immediate execution of the order. 15. Whether the delay at various stages can affect the proceedings, depends on the facts of each case. It is usually said that the link between the grounds of detention and the purpose of detention might not get WPC 35683/10 15 snapped by the unjustifiable delay in the proceeding court in execution of the order. 16. We feel that it will be only appropriate to first consider the fifth issue raised by the learned counsel for the petitioner, since if it goes in favour of the petitioner, that will terminate the proceedings and immediate release of the petitioner will have to be ordered. 17. As already noticed, the specific contention taken by the petitioner in paragraph 10 of the petition is that Crime No.31/08 in which the petitioner was shown as the second accused, was registered on the basis of a complaint made by a police officer. Therefore, it is pointed out that the said crime could not have been taken into consideration for reckoning the three instances contemplated under Section 2(p)(iii) of the KAAPA Act. In support of the said contention, the learned counsel for the petitioner relied on the decisions reported in Radha Thankappan v. State of Kerala (2009(4) KLT SN 38) and WPC 35683/10 16 Vinija v. State of Kerala (2009(3) KLT 110). 18. According to the learned Public Prosecutor, such a view would lead to disastrous consequences. It would mean that no crime registered on the basis of a complaint filed by a police officer, even though offences have been committed by the detenue, can be taken into consideration for the purpose of the Act. According to the learned Public Prosecutor, the provision will have to be read as if to mean that it contemplates a situation where the defacto complainant and the person who registers the crime are one and the same person. If the defacto complainant and the person who registers the crime are different, the provision has no application. 19. Before going further, it will be profitable to extract Sections 2(o) and 2(p) of the KAAPA Act. The said sections read as follows : “2(o) - Known Goonda means a goonda who had been, for acts done within the previous seven years as calculated from the date of the order imposing any WPC 35683/10 17 restriction or detention under this Act, - (i) found guilty by a competent court or authority at least once for an offence within the meaning of the term 'goonda' as defined in clause (j) of Section 2, or (ii) found in any investigation or enquiry by a competent police officer, authority or competent court on complaints initiated by persons other than police officers in two separate instances not forming part of the same transaction to have committed any act within the meaning of the term 'goonda' as defined in clause (j) of Section 2 : Provided that an offence in respect of which a report was filed by a Police Officer before a lawful authority consequent to the seizure, in the presence of witnesses, of alcohol, spirit, counterfeit notes, sand, forest produce, articles violating copyright, narcotic drugs, psychotropic substances or currency involved in hawala racketeering may be included for consideration though the report had resulted from an action initiated by a police officer. Explanation – An instance of an offence involving a person, which satisfies the conditions specified in the definition of known rowdy referred to in clause (p) of WPC 35683/10 18 Section 2 can also be taken into consideration as an instance, along with other cases, for deciding whether the person is a known goonda or not. 2(p) Known rowdy means any person, who had been, by reason of acts done within the previous seven years as calculated from the date of the order imposing any restriction or detention under this Act ; - (i) made guilty, by a competent court at least once for an offence of the nature under item (i) of clause (t) of Section 2 or any offence notified as such under the said clause ; or (ii) made guilty by a competent court at least twice for any offence of the nature under item (ii) of clause (t) of Section 2 or any offence notified as such under the said clause ; or (iii) found on investigation or enquiry by a competent police officer or other authority, on complaints initiated by persons other than police officers, in three separate instances not forming part of the same transaction to have committed any offence mentioned in clause (t) of Section 2. Provided that any offence committed by a person :- WPC 35683/10 19 (i) by virtue of his involvement as a member of the family or a close relative of the family in an incident which took place by a reason of a family dispute or quarrel involving family members of close relatives on either side ; or (ii) by virtue of his involvement as a neighbour or as a close relative of the neighbour in an incident which occurred due to a dispute between immediate neighbours ; or (iii) by virtue of his involvement as an employee of any establishment in an incident which occurred in connection with a dispute between himself and the establishment with regard to the conditions of service ; or (iv) as a member of the student community in a recognised educational institution, by virtue of his involvement, merely by his presence but without any overt act constituting the offence mentioned in clause (t) of Section 2 without being involved in any criminal conspiracy facilitating the same, in an incident which occurred due to the general involvement of students of the institution in that particular incident ; or (v) as a member of a recognised political party, by virtue WPC 35683/10 20 of his involvement merely by his presence, but without any overt act constituting the offence mentioned in clause (t) of Section 2 without being involved in any criminal conspiracy facilitating the same, in an incident which occurred due to the general involvement of the workers of that party in an agitation or protest or programme organised by the party with prior information given to the police officer or Magistrate having jurisdiction ; or (vi) by virtue of his involvement in a criminal act committed by him before he had attained the age of eighteen years ; shall be omitted from the computation of the number of offences taken into account for deciding whether a person is a known rowdy.” The provision with which we are concerned in this case is Section 2(p)(iii) of the KAAPA Act. A perusal of the provision shows that a person becomes liable for preventive detention under three different circumstances. They are (1) When he is found guilty under item (i) of clause(t) of Section 2 or any offence notified as such under WPC 35683/10 21 the said clause, wherein the sentence is for five or more years of imprisonment of any type (2) When he is found guilty by a competent court at least twice for any offence of the nature under item (ii) of clause (t) of Section 2 and any offence notified as such under the said clause, which shall be punishable with less than five years of imprisonment of any type, excluding those punishable with less than one year of imprisonment and (3) When on investigation or enquiry by a competent police officer, the person is seen involved in three separate instances of any of the offences made mention of in Section 2(t). However, sub-clause (iii) of Section 2(p) cautions that for taking note of the three instances against a person, the complaints initiated by police officers shall not be reckoned. Obviously, the Legislature did not want complaints that may be lodged by police officers to be taken aid of for computing the three instances made mention of in sub-clause (iii) of Clause (p) of Section 2. The Legislature seems to have been conscious of the fact that if permitted, there could be WPC 35683/10 22 manipulations and fabrications, endangering the liberty of a person. 20. “To initiate” means to set in motion. The