IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 31ST MARCH 2010 / 10TH CHAITHRA 1932 WP(C).No. 9377 of 2010(V) ------------------------- PETITIONER: --------------- JOSEPH DAS AGED 34 YEARS, S/O.DASAN, KATTUPRAYIDAM,KUREEPUZHA,SAKTHIKULANGARA, KOLLAM. BY ADV. SRI.DILEEP P.PILLAI RESPONDENTS: --------------- 1. STATE OF KERALA, REP BY THE CHIEF SECRETARY,SECRETARIAT,THIRUVANANTHAPURAM 2. THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, KOLLAM. 4. THE DISTRICT SUPERINTENDENT OF POLICE, KOLLAM. GOVERNMENT PLEADER SRI.P.RAVINDRA BABU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- W.P.(C) No. 9377 of 2010-V ------------------------------------------------- Dated this the 31st day of March, 2010 JUDGMENT Basant,J. The petitioner has come to this Court with this writ petition under Art.226 of the Constitution to issue directions to restrain the respondents from executing an order of detention allegedly passed against him under Sec.3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as `the KAAPA'). 2. The petitioner asserts that an order of detention has been passed categorizing him as a 'known rowdy' falling within the ambit of the expression under Sec.2(p) of the KAAPA. Three cases are allegedly relied upon to issue such order of detention against him under Sec.3 of the KAAPA. The first crime relied on is the one registered, inter alia, under Sec.308 W.P.(C) No. 9377 of 2010 -: 2 :- IPC on the basis of Ext.P1 FIR i.e., Crime No.289/06 of the Sakthikulangara Police Station in Kollam District. The second crime on which reliance is placed is the one registered as Crime No.42/08 of the Sakthikulangara Police Station in Kollam District for offences punishable, inter alia, under Sec.308 read with Sec.149 IPC. The third crime which is relied on by the respondents against the petitioner is Ext.P2 crime i.e., Crime No.233/09 of the Sakthikulangara Police Station in Kollam District registered under Secs.323 and 324 read with Sec.34 IPC. Final reports have been filed in these crimes. It is the submission of the petitioner that an order of detention has been passed and the said order of detention under Sec.3 of the KAAPA is likely to be executed against him at any moment. According to the petitioner, such order of detention is not valid, legal and enforcible. He hence prays that the extraordinary constitutional powers of this Court under Art.226 of the Constitution may be invoked to issue appropriate directions to restrain the respondents from executing the said order under Sec.3 of the KAAPA. 3. The learned Government Pleader, on behalf of the respondents, does not dispute the fact that an order of detention has been passed under Sec.3 of the KAAPA reckoning the W.P.(C) No. 9377 of 2010 -: 3 :- petitioner as a 'known rowdy' under Sec.2(p) of the KAAPA. The learned Government Pleader does not also dispute the fact that the said order of detention takes into account the three crimes referred to by the petitioner in this writ petition. 4. Exts.P1 and P2 as also the FIR in the second case i.e., Crime No.42/08 of the Sakthikulangara Police Station have been perused by us. There can be no doubt that these are cases falling within the sweep of Sec.2(t) of the KAAPA. The learned counsel for the petitioner submits that though the cases fall within the sweep of the offences covered by the expression 'rowdy' in Sec.2(t) of the KAAPA, the petitioner cannot be reckoned as a known rowdy and no order of detention is liable to be passed against him. He contends that under the third proviso to Sec.2(p) of the KAAPA, Ext.P1 crime cannot be taken into reckoning to include the petitioner as a known rowdy. So far as the second crime i.e., Crime No.42/08 is concerned, the argument is that it was basically a traffic accident; no serious injuries were suffered by the victim and anticipatory bail had been granted by this Court to the petitioner. So far as the third case is concerned i.e., Ext.P2 Crime i.e., Crime No.233/09, the argument is that the injuries are simple and that cannot be reckoned as relevant for the purpose of including the petitioner W.P.(C) No. 9377 of 2010 -: 4 :- within the sweep of the expression 'known rowdy'. 5. We shall carefully avoid any detailed discussion on merits, lest such discussions may adversely affect the right of the petitioner to assail the order of detention in accordance with law after his detention. The crucial question to be considered now is whether the constitutional powers of this Court under Art.226 of the Constitution deserve to be invoked prior to the execution of the order of detention under Sec.3 of the KAAPA. 6. The law on this point is well settled. The Supreme Court in Addl. Secretary, Government of India v. Alka Subhash Gadia (1992 Supp (1) SCC 496) had enumerated the circumstances under which a pre-execution challenge against an order of preventive detention can be considered by the court. Later, in the decision in Deepak Bajaj v. State of Maharashtra (AIR 2009 SC 628), the question has been considered again and more liberal standards have been applied. 7. There can be no doubt that this Court under Art.226 of the Constitution can certainly exercise the extraordinary constitutional jurisdiction to interfere with and set aside the order of detention even at the pre-execution stage. On that question of law, there is and there can be no doubt at all. The short question is whether the instant case can be brought under W.P.(C) No. 9377 of 2010 -: 5 :- any one of the pigeonholes stipulated in Alka Subhash Gadia (supra) as explained later in Deepak Bajaj (supra) to justify the invocation of such jurisdiction. Deepak Bajaj (supra) does, of course, lay down more liberal standards for invocation of such constitutional powers under Art.226 of the Constitution against an order of preventive detention. 8. We have heard the learned counsel for the petitioner in detail. We have taken into reckoning the nature of the challenge which the petitioner wants to raise against the impugned order of detention. Even taking the most liberal view permissible in the light of the decision in Deepak Bajaj (supra), we are not persuaded to agree that such power to entertain a pre-execution challenge against the impugned order of detention can, need or deserve to be invoked. We do not intend to express any final opinion on the contentions raised by the learned counsel for the petitioner referred above. Suffice it to say that we do not find merit in the contention that the petitioner does not deserve to be included as a known rowdy under the definition of that expression in Sec.2(p) of the KAAPA. 9. We do accordingly dismiss this application; but we make it clear that we have not intended to express any authentic and final opinion on the possible grounds of challenge later when the W.P.(C) No. 9377 of 2010 -: 6 :- Advisory Board or the Government considers the representations of the petitioner. No observations in this judgment shall influence or restrain such authorities. We need only mention that we have only taken the view that a pre-execution challenge against the impugned order of detention need not and cannot be entertained. 10. This writ petition is accordingly dismissed. 11. Hand over a copy of this judgment to the learned counsel for the petitioner. Sd/- R. BASANT (Judge) Sd/- M.C. HARI RANI (Judge) Nan/ //True Copy// P.S. to Judge