IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 WP(Crl.).No. 536 of 2009(S) --------------------------- PETITIONER: --------------- FIROUSE.C.A., S/O.C.A.ABOOBACKER, AGED 29 YEARS, CHALA HOUSE, NATIONAL NAGAR, P.O.SHARIBAGILU, OLIYATHADUKKA, KASARAGOD. BY ADV. SRI.K.M.FIROZ RESPONDENTS: --------------- 1. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, THE AUTHORISED OFFICER UNDER THE KERALA ANTISOCIAL ACTIVITIES PREVENTION ACT. KASARAGODE DISTRICT, CIVIL STATION, KASARAGOD. 2. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, HOME (SS.A) DEPARTMENT, HOME AND VIGILANCE, SECRETARIATE,THIRUVANANTHAPURAM 695 001. 3. THE ADDITIONAL CHIEF SECRETARY (HOME AND VIGILANCE), HOME (SS.A) DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM 695 001. 4. THE DEPUTY SECRETARY, HOME (SS.A) DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM 695 001. 5. THE SUPERINTENDENT OF POLICE, KOZHIKODE RURAL, OFFICE OF SUPERINTENDENT OF POLICE, KASARAGOD. 6. THE SUPERINTENDENT, CENTRAL PRISON, KANNUR. 7. THE ADVISORY BOARD, CONSTITUTED UNDER THE KERALA ANTI-SOCIAL ACTIVITIES (PREVENTION) ACT, SREENIVASPADAM ROAD, VIVEKANANDA NAGAR, ELAMAKKARA, KOCHI-682 026, REPRESENTED BY ITS SECRETARY. GOVERNMENT PLEADER, SRI. RAVINDRA BABU FOR R1 TO R7 DDL.D.G.P. FOR R1-7 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 19.02.2010, THE COURT ON 03.03.2010 DELIVERED THE FOLLOWING: WP(Crl.).No. 536 of 2009(S) APPENDIX RESPONDENT'S EXHIBITS: EXT.P1: TRUE COPY OF THE REPORT ISSUED BY THE SUPERINTENDENT OF POLICE, KASARKODE ALONG WITH RELEVANT ANNEXURES. EXT.P2 : A TRUE COPY OF THE ORDER NO.D1/32401/09 DATED 7.10.2009 PASSED BY THE FIRST RESPONDENT. EXT.P3: A TRUE COPY OF THE ORDER OF APPROVAL BEARING NO.80158 / SS A5 / 2009 ./ HOME DATED 7.11.2009 ISSUED BY THE THIRD RESPONDENT. EXT.P4: A TRUE COPY OF COMMUNICATION DT. 23.11.2009 ISSUED BY THE FOURTH RESPONDENT, DEPUTY SECRETARY. EXT.P5: A TRUE COPY OF THE FIR IN CRIME NO. 617 OF 2009 OF KASARKOD POLICE STATION. EXT.P6 : A TRUE COPY OF THE CERTIFICATE DT.13.8.2009 ISSUED BY THE CIRCLE INSPECTOR OF POLICE, KASARGOD IN RESPECT OF CRIME NO. 672 OF 2008 OF KASARGOD POLICE STATION. EXT.P7: A TRUE COPY OF THE RELEVANT PORTION OF THE FIR SUBMITTED BY THE POLICE BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD IN CRIME NO. 344 OF 2009 OF KASARAGOD POLICE, STATION. EXT.P8 : THE TRUE COPY OF THE FIR IN CRIME NO.303 OF 2009 EXT.P9: A TRUE COPY OF THE CONFIRMATION ORDER PASSED BY THE GOVERNMENT DT. 5.1.2010. RESPONDENTS' EXHIBITS: EXT.R6(a) : TRUE COPY OF THE ORDER OF APPROVAL NO.80158/SSA5/2009 DT.7.11.2009 ACKNOWLEDGED BY THE DETENU EXT.R6(b) : TRUE COPY OF THE LETTER NO. CP.RD-31/09 DT.13.11.2009 EXT.R6(c) : TRUE COPY OF ORDER NO. 80158/SSA5/2009 ACKNOWLEDGED BY THE DETENU. K.M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(Crl.) No. 536 of 2009 S - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of March, 2010. JUDGMENT Joseph Francis J., The petitioner submits this Writ Petition aggrieved by the detention of Sri. K Usman. The detention was made by the 1st respondent based on a report issued by the Superintendent of Police, Kasarkode. The first respondent claims that he has passed Ext.P2 detention Order No.D1/32401/09 dated 7.10.2009 based on Ext.P1 report. The petitioner alleges that the said order is purportedly passed by the first respondent District Magistrate, invoking Section 3(1) and 3(2) of the Kerala Antisocial Activities (Prevention) Act, 2007. Based on the said order he was detained on 30.10.2009. The petitioner alleges that the order of detention was stated to be W.P.(Crl.) No. 536 of 2009 2 approved by the Government under Section 3(3) of the KAAP Act without giving an opportunity of hearing to the detenu as per Ext.P3 approval order. The detenu submitted representation as contemplated by Article 22(5) of the Constitution of India and Section 7(3) of the KAAP Act before the Government as well as the Advisory Board (7th respondent) through the Jail authorities. The representation dated 13.11.2009 was rejected by the Deputy Secretary as per Ext.P4 communication dated 23.11.2009. The representation signed by the detenu to the Advisory Board was forwarded to the Advisory Board constituted under the Act as per the provision of Section 9 of the Act and the Advisory Board has not yet considered the issue. The delay in consideration is unreasonable and arbitrary. 2. Based on the aforementioned proceedings, which are not in accordance with law, the detenu is now kept in illegal custody in the Central Prison, Kannur as detenu No.31 (D-31) without following the procedure established by law and without any valid reason. Hence this petition is filed challenging the aforementioned proceedings and seeks for issuance of a writ of habeas corpus. W.P.(Crl.) No. 536 of 2009 3 3. Counter affidavits have been filed by the respondents. We have perused the same. 4. We heard the learned counsel for the petitioner and learned Government Pleader. The learned counsel for the petitioner challenges the order of detention on various grounds. 5. The learned counsel for the petitioner submitted that the detenu is an illiterate person and that he is not able to read and write English and Malayalam except his own name. Learned counsel for the petitioner submitted that handing over the grounds of detention to one Mohammed Madani as stated in Ext.P4 cannot be considered as compliance of requirements of law. Learned counsel for the petitioner further submitted that since the documents were not handed over and since the same were not properly read over to the detenu, it has caused serious prejudice to the detenu and his right to submit a proper representation is affected. In the Writ Petition it is stated that subsequently Mohammed Madani handed over the documents to the petitioner. The Govrnment pleader produced before us the original documents pertaining to the entire proceedings. In that records it is stated by the Dy. S.P. of Kasargod W.P.(Crl.) No. 536 of 2009 4 - the Executing Officer that the condition of detention and ground of arrest were read over to the detenu and explained to him in detail. The condition was also read out to his brother Abdullla, who was present at the time of arrest and a signed statement was also taken from Abdulla as a proof of both he and detenu having understood the conditions and grounds of arrest. The records would further show that the connected records have been sent to the detenu and obtained his signature on it as per Section 7 of said Act by the Dy. S. P of Kasargod at the time of execution. In view of above aspect, the above argument advanced by the learned counsel for the petitioner cannot be accepted as correct. Ext.P2 detention order and Ext.P1 report of Superintedent of Police, Kasargod would show that the detenu is involved in four cases as follows: (i) On 24.1.2004 at about 19.20 hrs at Pernadukka Junction in Kudlu village, the counter petitioner, 11 named and identifiable 18 others formed themselves in to an unlawful assembly armed with deadly weapons, wrongfully restrained the complainant N. Sreedhara and inflicted injuries by wooden sticks and attempted to murder him due to communal enmity. In this connection a case in Cr.No. 103/04, u/s 143, 147, 148, 341, 324, 307, W.P.(Crl.) No. 536 of 2009 5 153(A), r/w 149 IPC was registered at Kasargod police station. The case was charge sheeted on 16.5.2005 and pending trial before the Asst. Session Court, Kasargod in SC 228/06. (ii) On 30.9.2008 at about 11.30 hrs at Oliyathadukka junction in Kudlu village, the counter petitioner and 14 others formed themselves in to an unlawful assembly armed with deadly weapons, wrongfully restrained the complainant Ashoka and his friend Kunikannan and inflicted injuries by wooden sticks and attempted to murder him due to communal enmity. In this connection a case in Cr.no.672/08 u/s. 143, 147, 148, 341, 326, 324, 427, 307, 153(A) r/w 149 IPC was registered at Kasargod Police Station and investigation revealed that he has committed the offences. The case is under investigation. (iii) On 9.3.09 at about 20.45 hrs at Olayathadukka INL office premises, the counter petitioner and 7 others formed themselves in to an unlawful assembly armed with deadly weapons, wrongfully restrained and assaulted the complainant Jawad and his friend and caused injuries. In this connection a case in Cr.no. 167/09 u/s 143, 147, 148, 341, 324, r/w 149 IPC registered at Kasargod Police stations. The case was charge sheeted on 24.7.2009 and pending trial before the CJM court, Kasargod. W.P.(Crl.) No. 536 of 2009 6 (iv) On 9.5.2009 at about 19.30 hrs at Olayathakudda in Madhur Village, SI Kasargod and party seized a sword and a dagger from the counter petitioner's shop which were kept for unlawful purpose. In this connection a case in Cr.No. 344/09 u/s. 25(1) A of Arms Act registered at Kasargod Police Station. The case was charge sheeted on 10.5.2009 and pending trial before the CJM Court, Kasargod in CC No. 345/09. 6. Out of the four cases, Crime No. 344 of 2009 of Kasargod police station which is a suo-motu case registered by the police under Section 25(1)A of the Arms Act has to be excluded from consideration in view of Section 2(P)(iii) of the Act. Of the remaining three cases the investigation in crime nos. 672 of 2008 of Kasargod police station under Section 143, 147, 148, 341, 324, 326, 427, 307, 153A read with section 149C of IPC is not over. Ext.P6 is the copy of the certificate issued by the C.I. of police Kasargod dated 13.8.2009 stating that the detenu is the accused in crime no. 672 of 2008 of Kasargod police station under Sections 143, 147, 148, 341, 326, 307, 427, 153-A read with Section 149 of IPC and that the accused appeared before JFCM, Kasargod and was in W.P.(Crl.) No. 536 of 2009 7 judicial custody and that the investigation could not be completed as the other accused are not arrested. 7. The authorities relied on Ext.P6 certificate and copy of F.I.R. in crime no. 672 of 2008 to arrive at a conclusion that the detenu has committed offence mentioned in the crime. But in Ext.P6 certificate no finding is entered by the C.I. of Police Kasargod to the effect that the detenu committed offence as alleged in crime no. 672 of 2008. In Ext.P6 certificate, the name of the person who conducted the investigation and who allegedly found that the detenu has committed offence is not mentioned anywhere. The records leading to such conclusion if at all have not been handed over to the detenu. 8. In the decision reported in Elizabath George v. State of Kerala and others (2008 (4) KLT 425, it was held that a final report as envisaged under Section 173(2) of the Code of Criminal Procedure as such is not essential for an action under Section 3 of the Act. Even though investigations are pending against the detenu who are accused in various crimes and is yet to be completed for various reasons, it will not prevent the detaining authority from W.P.(Crl.) No. 536 of 2009 8 examining the matter to arrive at a objective satisfaction even in the absence of a final report. In the present case Ext.P1 and P2 will not show that S.P. of police and the detaining authority had examined the C.D. file in crime nos. 672 of 2008 of Kasargod police station to come to a conclusion that the detenu has committed the offence mentioned in the crime. Copy of the FIR in crime no. 672 of 2008 and Ext.P6 certificate will not show that the detenu has committed the offence mentioned in the crime. Therefore crime no. 672 of 2008 cannot be taken into consideration to determine the question whether the detenu is a 'known rowdy' as defined under the KAAP Act. 9. In this case the detenu is detained on the assertion that he is a 'known rowdy' under Section 2(p)(iii) of the KAAPA. In order to fall within the sweep of Section 2(p)(iii), it must be shown that the detenu was found on investigation by a competent police officer in three seperate instances not forming part of the same transaction to have committed specified offences under Section 2(t). Excluding crime nos. 672 of 2008 and 344 of 2009 of Kasargod Police Station, the detenu is involved in two cases namely crime nos. 103 of 2004 W.P.(Crl.) No. 536 of 2009 9 and 167 of 2009. The detenu would therefore not fall under the definition of Section 2(p)(iii) of the KAAPA. Therefore the powers under section 3 of the KAAPA cannot be invoked against him. It shows that the detention of the detenu under Section 3(i) of KAAPA is not justified and it has to be invalidated. Accordingly this Writ petition is allowed. The impugned order of detention Ext.P2 is set aside. If the detention of the detenu is not necessary in connection with any other case, he shall forthwith be released from Central prison, Kannur where he is detained. The Registry shall forthwith communicate this direction to the jail authorities. K.M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE. dl/