IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 WP(Crl.).No. 234 of 2011(S) --------------------------- PETITIONER(S): DETENUE ---------------------- HAKKIM @ JYM HAKKIM, S/O. SALAUDHEEN @ CHAKKO, TC NO.48/320, SM-LOCK, POONTHURA, NOW RESIDING AT TC 46/803(3), MANICKAVILAKAM, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.NAGARAJ NARAYANAN SRI.RAJAN VELLOTH SRI.SAIJO HASSAN SRI.PRATHAP PILLAI SRI.BENOJ C AUGUSTIN RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY CHIEF SECRETARY TO GOVERNMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 695 001 2. HOME DEPARTMENT, GOVT. OF KERALA, REP. BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 695 001 3. DISTRICT MAGISTRATE/DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 695 001 GOVERNMENT PLEADER SRI.K.J.MOHAMMED ANSAR. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 30/06/2011, HE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(Crl) No.234/2011 A P P E N D I X Petitioner's Exhibits : Ext.P1 : TRUE COPY OF THE DETENTION ORDER DT. 19.1.2011 OF DISTRICT MAGISTRATE, TRIVANDRUM. Ext.P2 : TRUE COPY OF GROUNDS OF DETENTION IN MALAYALAM OF DISTRICT MAGISTRATE, TRIVANDRUM. Ext.P3 : TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 29.1.2011. Ext.P4 : TRUE COPY OF THE LETTER DATED 21.2.2011 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. Ext.P5 : TRUE COPY OF THE ORDER DATED 26.3.2011 ISSUED BY THE 2ND RESPONDENT. EXT.P6 : TRUE COPY OF ORDER IN B.A.3060/2010 DATED 24.6.2010 PASSED BY THIS HONOURABLE COURT. EXT.P7 : TRUE COPY OF THE JUDGMENT DT. 8.3.2011 IN C.C.NO.1130/2008 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE V (SPECIAL COURT FOR MARKLIST CASES), THIRUVANANTHAPURAM. K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- W.P.(Criminal) No.234 of 2011 ----------------------------------------------- Dated 30th June, 2011. J U D G M E N T Joseph, J. The Writ Petition is filed with the following prayers : (i) Issue a writ of habeas corpus or other appropriate writ, order or direction, directing the petitioner to be released from illegal detention and custody, pursuant to Exts.P1 and P5 orders; (ii) Issue a writ of certiorari or other appropriate writ, order or direction, calling for the records leading to Exts.P1, P4 and P5 and quash the same. The petitioner is under detention from 20.1.2011. Ext.P1 is the order of detention and Ext.P2 purports to be the grounds for detention, in Malayalam. Ext.P3 is the copy of the representation sent by the petitioner and Ext.P4 is the decision on the representation. By Ext.P5, the second respondent has confirmed the detention. 2. We heard learned counsel for the petitioner and the learned Senior Government Pleader. 3. Learned counsel for the petitioner would press W.P.(Crl) 234/11 2 before us the following arguments : He would contend that this is a case where the petitioner has been actually visited with a sentence of fine and therefore, this would not bring him within the scope of a 'known rowdy'. It is also contended that this is a case where he had filed a representation, wherein he had contended that he would fall within the exception to the definition of the word 'known rowdy', for the reason that the alleged incidents were between neighbours and relatives. He would also contend that this is a case where he had been granted bail on conditions and this aspect has not been considered. He would further contend that in the order of detention, the case in which he is in custody is not specifically mentioned. He would also argue that it is not mentioned that there is a likelihood of he being released on bail and therefore, the order of detention is per contra. 4. Learned Senior Government Pleader would point out that there is no merit in the contentions. The representation has been considered with reference to the contentions taken in the representation. What is relevant is W.P.(Crl) 234/11 3 not the sentence which is imposed by the criminal court, but the sentence which can be imposed for the offences in which he is allegedly involved. It is further contended that there is no mention about his coming within the excepted categories, in the representation. No contention is raised about the bail conditions. There is no complaint that the bail being granted was not borne in mind. Lastly, it is contended that in so far as it is stated in the order of detention that he is in custody and an application is moved for getting bail, the requirement of the law is satisfied. He would also contend that a perusal of the order would make clear as to the case in which he is in custody. 5. The first question is whether the order of detention is bad for the reason that the petitioner is visited with fine. The petitioner has been classified as a 'known rowdy'. This is on the strength of five cases. The word 'rowdy' in Section 2(t) of the Kerala Anti-social Activities (Prevention) Act (hereinafter referred to as 'the Act') contemplates that the offence must be (i) which is punishable with five or more years of imprisonment of any type or (ii) with less than five years of W.P.(Crl) 234/11 4 imprisonment of any type, except those punishable with less than one year of imprisonment or (iii) such offences under any other law for the time being in force, coming under item (i) or (ii), as may be notified by the Government, from time to time. Therefore, the fact that the petitioner is visited with only fine is besides the point and what is relevant is the punishment which is actually provided in law for the offences. The petitioner has no case that the offences in which he is allegedly involved are offences where punishment of the nature contemplated in Section 2(t) is not provided for. There is no merit in the contention. We reject it. 6. As far as the second contention is concerned, viz., the petitioner would fall within the excepted categories, for the reason that the offences are allegedly committed between neighbours and relatives, we notice that there is no mention about it in the representation at all. Therefore, the petitioner cannot be heard to say that there is non consideration of the representation in this regard. We are equally unimpressed by the contention raised on the basis of bail being granted. When W.P.(Crl) 234/11 5 bail is granted by the criminal court, it may impose conditions. The conditions may be imposed for the purpose of investigation, that is to be more clear, for securing his presence. It may not touch upon the aspects which are relevant for the purpose of preventive detention. 7. It is not pointed out before us that bail conditions were imposed by the criminal court which have bearing on the issue of preventive detention. It is admitted that all what is mentioned is that he is on bail. There is no indication about the conditions. Therefore, it must be treated that there is no case built up before the authority obliged to consider the representation as is sought to be made out. We see no merit in that contention also. 8. The last contention taken is regarding the non- fulfilment of the conditions subject to which a person in custody can be detained. In this case, the order specifically states that the petitioner was in custody. It is further stated that information is received that he has moved for getting bail. The only contention of the learned counsel for the petitioner is that W.P.(Crl) 234/11 6 it is not expressly stated that there is likelihood of his being released on bail. 9. Learned Government Pleader, no doubt, would point out that it is specifically recited that the petitioner has moved for getting bail and the phraseology in the order would indicate that if petitioner is released on bail, he will indulge in anti-social activities, which are sought to be prevented under the Act. 10. We notice that we have, in the judgment in W.P. (Crl) 76/11 interalia had occasion to deal with this issue and after referring to the case, it was held at paragraph 10 as follows : “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.” We see no merit in that contention also. W.P.(Crl) 234/11 7 11. Then the only remaining question is the non- mentioning of the case, in which the petitioner was in custody. Learned Government Pleader would point out that the order of detention would show that he was in custody in crime No.682/10. It is specifically stated that the case is under investigation. We would think that we need not interfere with the order of detention on the said ground. Accordingly, we see no merit in the Writ Petition. It is dismissed. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs