IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 WP(Crl.).No. 201 of 2009(S) --------------------------- PETITIONER: --------------- SATHI, W/O. CHELLAPPAN, AGED 52 YEARS, PUTHENVILA, PANAYAM P.O., PERINAD, KOLLAM 691 603. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.J.R.PREM NAVAZ SMT.SMITHA GEORGE RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ADDITIONAL CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, KOLLAM. 4. THE SUPERINTENDENT OF POLICE, KOLLAM. 5. THE CIRCLE INSPECTOR OF POLICE, KUNDARA, KOLLAM DIST. GOVERNMENT PLEADER FOR R1-5 SRI.C.M.KAMAPPU ADDL.DIR.GENL (PROSECUTIONS) SRI.K.K.RAVINDRANATH THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 02/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ W.P(Crl.) No.201 of 2009 ------------------------------------- Dated this the 1st day of July, 2009 JUDGMENT BASANT, J. In the light of Section 7(3) of the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred to as the `KAAPA'), is the omission to furnish translated copies of some of the documents relied on by the Detaining Authority to be reckoned as fatal warranting invalidation of detention on that ground ? (ii) Is the omission to specify any period of detention in the order of detention passed under Section 3(1) and approved under Section 3(3) to be reckoned as evidence of fatal non application of mind by the detaining authority warranting invalidation of the order of detention ? (iii) Can the detaining authority place reliance on any confidential and secret information not revealed to him specifically which the sponsoring authority or his subordinates may have in their possession to entertain the requisite subjective satisfaction under Section 3 on the need to detain a known goonda or known rowdy ? W.P(Crl.) No.201 of 2009 2 2. These questions of relevance and significance arise in this Writ Petition filed by the petitioner, who is the mother of Reji @ Annachi Reji who has been ordered to be detained by the 3rd respondent under Section 3(1) of KAAPA. The petitioner has come to this Court with the prayer that a writ of habeas corpus may be issued to produce the son of the petitioner before Court, to set aside the order of detention Ext.P3 and to set him at liberty. 3. The petitioner's son Reji hereinafter called `the detenu' was admittedly an accused in 12 earlier criminal cases at various points of time and he has secured acquittal in all the said 12 cases. Against him 5 cases are pending now, the relevant details of which are given below: (i) Crime No.172 of 2003 (date of incident 25.03.2003); (ii) Crime No.76 of 2004 (date of incident 25.03.04); (iii) Crime No.37 of 2005 (date of incident 28.01.2005); (iv) Crime No.445 of 2005 (date of incident 04.12.2005); (v) Crime No.172 of 2008 (date of incident 29.03.2008 and final report filed on 08.01.2009). 4. The last of the crimes allegedly committed by him was on 29.03.2008. In all the 5 cases referred above, final reports have already been filed. Trial is not complete. W.P(Crl.) No.201 of 2009 3 5. The detenu appears to have entertained an apprehension that he may be proceeded against under the KAAPA. He therefore submitted Ext.P1 representation dt.24.10.08 to the 3rd respondent with a copy to the Government. He received Ext.P4 reply dt.07.04.2009 from the Government to say, that proceedings under the KAAPA were not being contemplated against him. It is at this juncture that the detenu was detained on the basis of Ext.P3 order of detention dt.02.05.2009. The detenu was arrested on 21.05.09. Requisite approval under Section 3(3) of the KAAPA was given by the Government within 12 days. The detenu has submitted a representation to the Advisory Board. That is in the process of consideration. Orders by the Government under Section 10 of the KAAPA has not been passed yet. Advisory Board has not given its opinion, it is submitted. 6. Detailed arguments have been advanced by the learned counsel for the petitioner and the learned Additional Director General of Prosecutions. The learned counsel for the petitioner assails the impugned order on various grounds. Broadly the grounds of challenge can be divided into 2. They are: W.P(Crl.) No.201 of 2009 4 (A) In not having granted Malayalam translation of the relevant documents under Section 7 (2) of the KAAPA, there has been fatal infraction of the rights of the detenu under Article 22(5) of the Constitution of India and Section 7(2) of the KAAPA. (B) There has been total absence of alert application of mind to the relevant facts before the 3rd respondent passed Ext.P3 order of detention. 7. Ground (A): Factual details on this aspect are not in dispute. The order of detention as also the grounds of detention have been furnished to the detenu in Malayalam. Copies of certain documents have been furnished along with such order of detention and grounds. Some of those documents including the report of the Superintendent of Police under Section 3(1) KAAPA as also the report of the C.I on the basis of which the Superintendent of Police (R4) commenced proceedings, have not been furnished to the detenu in Malayalam. They have been furnished in English. The crux of the contention of the learned counsel for the petitioner is that in not having furnished these documents in Malayalam language which the detenu understands and in having furnished these documents to the detenu in English language in which he is not W.P(Crl.) No.201 of 2009 5 proficient, there has been breach of the obligation to communicate the grounds under Article 22(5) of the Constitution and to furnish him the grounds and documents under Section 7 (2) of the KAAPA. 8. For the sake of convenience we extract Article 22(5) of the Constitution and Section 7(1) and (2) of the KAAPA. Article 22(5) “When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.” Section 7. Grounds of order of detention to be disclosed:- (1) When a person is arrested in pursuance of a detention order, the officer arresting him shall read out the detention order to him and give him a copy of such order. (2) The grounds of detention, specifying the instances of offences, with copies of relevant documents, as far as practicable, on the basis of which he is considered as a “known goonda” or “known rowdy” and giving such materials relating to his activities on the basis of which his detention has been found necessary, shall be furnished to him as soon possible, nevertheless, in any case, within five days of detention and he shall also be informed in writing, under acknowledgment, of his right to represent to the Government and before the Advisory Board against the arrest and detention. (emphasis supplied) 9. The learned counsel for the petitioner relies on precedents to contend that the obligation to communicate under W.P(Crl.) No.201 of 2009 6 Article 22(5) of the Constitution and the obligation to furnish under Section 7(2) of the KAAPA cannot be said to be discharged if the documents are furnished to the detenu in a language which he is not able to understand. The learned counsel for the petitioner in this context places reliance on the decision in Riswana Begam v. State of Kerala [2009(2) KLT 646]. 10. There is dispute between the parties as to whether the detenu is proficient in English or not. We see that he has affixed his signature in English. But it is not in serious dispute that his education was only upto S.S.L.C. A person who has studied upto S.S.L.C may be able to sign his name in English or understand the basics of the language. But at any rate we are not persuaded to agree that such knowledge of English is sufficient to conclude that furnishing of a document in English is by itself sufficient communication or furnishing under Article 22(5) and Section 7 (2). We agree with the learned counsel for the petitioner that there is nothing to show that he was sufficiently proficient in the English language as to read and understand for himself the contents of those documents furnished in English. 11. The learned Additional Director General of Prosecutions points out relying on the decision in Devji Vallabhbhai v. Administrator, Goa, Daman & Diu [1982 S.C W.P(Crl.) No.201 of 2009 7 1029] that even in a case where the very order of detention is furnished not in the language of the detenu but in English, the Supreme Court had held that that would be sufficient communication/furnishing. In para.8 of the said decision we find a detailed discussion on this aspect. It is held in that decision that notwithstanding the fact that the translated copy of the order of detention is not furnished to him in a language which the detenu understands, the fact that the grounds are furnished in a language which he knows, is sufficient to hold that the omission to furnish the order of detention in his language is not fatal to the detention. The rationale is that the order only reiterates those details which are already furnished in the grounds which have been properly translated and served on him. The learned Addl.D.G.P contends that the question is whether the order, grounds and documents have been furnished in such a manner as not to affect the detenu's right to know the grounds of detention and the materials on which such order of detention is passed. So long as he has such knowledge and his right to make a representation under Article 22(5) of the Constitution and Section 7(2) of the KAAPA is not affected, the alleged omission/inadequacy cannot be reckoned as crucial or vital, W.P(Crl.) No.201 of 2009 8 sufficient to justify invalidation. We agree with the learned Addl.D.G.P. The question to be considered is whether the crucial and vital right of a detenu to know the grounds of detention and the right to make a representation against such detention is infringed or not. 12. The learned counsel for the petitioner immediately points out the decision in Kamla v. State of Maharashtra [A.I.R 1981 S.C 814] to contend that the factual inferences narrated and relied on in the grounds are by themselves insufficient to enable the detenu to make an effective representation. The materials on the basis of which those factual inferences are drawn must also be communicated/furnished and to be an effective communication/furnishing, it is essential that the same must be furnished in a language known to the detenu. The learned counsel relies on the following crucial observation in para.3 of Kamla (supra). Para.3:.......................................................................... ........................................................... “The matter may also be looked at ................................................................................... .......... Whatever angle from which the question is looked at, it is clear that `grounds' in Article 22(5) do not mean mere factual inferences but mean factual inferences plus factual material which led to such factual inferences. The `grounds' must be self- W.P(Crl.) No.201 of 2009 9 sufficient and self-explanatory. In our view copies of documents to which reference is made in the `grounds' must be supplied to the detenu as part of the `grounds'. (emphasis supplied) 13. We are undoubtedly in agreement that there must be an effective communication/furnishing not only of the order of detention or the grounds of detention, but also the documents/materials on which reliance is placed to formulate the grounds. 14. The learned Addl.D.G.P submits that even if it be assumed that furnishing of the copies in English of the relevant materials is not sufficient for the purpose of satisfying the requirements of detention under other analogous laws relating to preventive detention, a different view must be taken by this Court in so far as the KAAPA is concerned because the KAAPA contains provisions which ensure unmistakably that the detenu does not suffer on account of such alleged defective communication/furnishing of documents. The learned Addl.D.G.P in this context places reliance on Section 7(3) of the KAAPA which we extract below: “Section 7(3): The Superintendent of the Jail where such person is detained shall afford him reasonable opportunity to consult a lawyer and reasonable assistance in making a representation W.P(Crl.) No.201 of 2009 10 against the detention order to the Government or to the Advisory Board.” 15. The learned Addl.D.G.P submits that precedents under other enactments cannot be blindly imported when the court considers the validity of detention under the KAAPA because in none of those enactments, there is a stipulation like the one in Section 7(3) of the KAAPA. The legislature in its anxiety to ensure that the right of the detenu under Article 22(5) of the Constitution to know the grounds of his detention and to make an effective representation against his detention are not affected or infringed has enacted a provision under which the detenu under the KAAPA is afforded opportunity to consult a lawyer and is assured reasonable assistance in making a representation against the detention order. The duty is statutorily imposed on the Superintendent of the Jail where the detenu is detained to afford opportunity to the detenu to consult a lawyer. He is also obliged to render reasonable assistance to the detenu in making a representation against the order of detention. In the light of the provisions under Section 7(3) no detenu can be heard to contend, in the absence of specific assertions contra, that he did not know the grounds of detention or that he was disabled from making an effective representation in exercise of his right under W.P(Crl.) No.201 of 2009 11 Article 22(5) of the Constitution - on the mere ground that copies were not furnished in his language. 16. The learned Addl.D.G.P points out that a detenu under the preventive detention law is not ordinarily entitled to rights under Article 22(1) and (2) in the light of Article 22(3) of the Constitution which expressly stipulates that the rights under Article 22(1) and (2) shall not be available to a person arrested or detained under any law relating to preventive detention. 17. The learned Addl.D.G.P contends that all the earlier binding precedents which obliged the detaining authority/arresting authority to furnish translated copies of documents to a detenu must be understood in the context Article 22(3) of the Constitution and in the light of the statutory provisions in such statutes. When that obligation is understood and interpreted under the KAAPA, the provisions of Section 7(3) must be borne in mind. Humane provisions, far beyond the stipulations in Article 22 of the Constitution, have been made in the KAAPA conferring rights on the detenu, contends the learned counsel. We find merit in that contention. 18. Under the Constitution and other preventive detention laws, the detenu has no right of legal consultation; whereas under the KAAPA he is expressly conferred right to have legal W.P(Crl.) No.201 of 2009 12 consultation. It is also insisted statutorily that the Superintendent of the Jail must make available to the detenu reasonable assistance to make representation against the order of preventive detention passed against him. 19. The learned Addl.D.G.P points out, and we find merit in that contention, that the obligation to furnish translated copies of the relevant documents/orders is not an empty ritual or formality. A detenu under the preventive detention law has no rights under Article 22(3) to consult a lawyer. If documents are furnished to him in a language not known to him, he cannot effectively understand the same. He has no means to know and understand the contents of the same. But not so under the KAAPA. The KAAPA expressly stipulates that he has a right for legal consultation. The KAAPA enjoins on the Superintendent of Prison a duty to help and assist the detenu to know and understand the order of detention and the grounds and the documents as also to assist him in the preparation of a representation. 20. The law zealously insists on compliance with procedural formalities when it comes to preventive detention. A right to make an effective and expeditious representation is a non negotiable, irreducible and essential one, which a detenu W.P(Crl.) No.201 of 2009 13 under the preventive detention law is entitled. If he is not given the right to consult a lawyer to make a proper representation, it will have to be zealously ensured that all circumstances and opportunities are made available to him to make an effective and expeditious representation. That is why while interpreting the provisions of other Preventive Detention laws, it has been zealously insisted that every breach of the obligation to literally comply with the provisions must entail invalidation. 21. We find force in the submission of the learned Addl.D.G.P. Precedents pronounced under other preventive detention law statutes cannot be blindly imported by this Court while interpreting the provisions of the KAAPA in view of the very specific provisions available in Section 7(3) by which the legislature has zealously ensured that the detenu gets assistance to understand the documents relied on against him and also to make an effective representation. That according to us makes a distinction between the KAAPA and other similar enactments in which the precedents have been laid down. The rationale behind zealous insistence on the literal compliance of the obligation to communicate the order of detention, grounds and documents in a language known to the detenu is that in the absence of the right to legal consultation, such furnishing/communication would W.P(Crl.) No.201 of 2009 14 affect his right to know the grounds of detention and to make a representation against the detention. Such an eventuality does not exist in view of Section 7(3) of the KAAPA. The right to legal consultation and the right to assistance from the Superintendent of the prison guaranteed under Section 7(3) ensure that the grievance of the detenu that he did not know the grounds or did not get an opportunity to make an effective representation on the ground that the documents are in the English language will be non existent under the KAAPA. There is no need for a doctrinaire or rigid approach any more in the light of Section 7 (3) of the KAAPA. It must be noted that the detenu has no specific grievance of non compliance with Section 7(3). The interpretation must cover a case where the detenu is illiterate. Such a detenu can only depend on someone else to read and explain the order, grounds and documents to him. If they are furnished to him and explained to him there can be no further grievance on the ground that they were in a language not known to him. 22. Coming to the facts of the case there is no complaint that the obligation under Section 3(3) has not been complied with. Nay, we have clinching indications in the acknowledgment given by the detenu at the time of his arrest that he was W.P(Crl.) No.201 of 2009 15 permitted to consult and take assistance from his lawyer who now appears for him. No one has a case that the Superintendent of prison did not discharge his obligation under Section 7(3). In these circumstances we must hold that in a case of preventive detention under the KAAPA, the mere fact that the copies of some of the documents were not furnished, cannot ipso facto invalidate the detention. We agree with the learned Addl.D.G.P that the omission to furnish the documents relied on in Malayalam cannot affect the validity of the detention. We make it clear that we hold so as we are wholly satisfied that the right of the detenu to know the grounds of detention and to make an effective and expeditious representation has not in any way been affected or impaired by the omission to furnish the translated copies. If we were not so satisfied, our conclusion would have been different. 23. Ground (B): The learned counsel for the petitioner contends that there has been no proper application of mind. Various contentions have been raised under this broad umbrella of criticism that there has been no proper application of mind. We shall now proceed to consider the various contentions raised. 24. First of all it is contended that there has been no proper application of mind as to whether the detenu is a known W.P(Crl.) No.201 of 2009 16 goonda or known rowdy. A valid order of detention can be passed against either a known goonda or a known rowdy, accepts counsel. The counsel contends that the grievance is that there has been no proper application of mind to find out whether the detenu is a known goonda or a known rowdy. The counsel argues that this amounts to fatal non application of mind which must entitle the detenu for invalidation of the detention. According to the counsel the detenu was initially referred to as a known goonda but later he is ordered to be detained as a known rowdy. 25. The learned Addl.D.G.P on the other hand contends that it is totally incorrect to say that the mind of the detaining authority has not been applied to this aspect. It is true that the Circle Inspector who initiated proceedings at the first instance had submitted a report to the 4th respondent Superintendent of Police indicating that the detenu is a known goonda. After perusing that report dt.16.02.2009, the Superintendent of Police had accepted the same and had directed registration of an F.I.R under Section 3 of the KAAPA describing the detenu to be a known goonda. The report under Section 3(1) was submitted by the 4th respondent Superintendent of Police to the 3rd respondent after finalising the proposal. In such report under Section 3(1), W.P(Crl.) No.201 of 2009 17 the Superintendent of Police had only reported that the detenu was a known rowdy. The learned Addl.D.G.P further points out that the detaining authority had also accepted that the detenu is a known rowdy. He is not described in the report under Section 3(1) by the 4th respondent or in the order of detention by the 3rd respondent as a known goonda. He is reckoned only as a known rowdy. The learned Addl.D.G.P points out that application of mind is to be done by the detaining authority. Of course he applies his mind primarily on the basis of the report of the Superintendent of Police. The Superintendent of Police in this case had reported in Section 3(1) report that the detenu is a known rowdy. That was accepted by the District Magistrate. The mere fact that the C.I who initiated the proceedings described the detenu to be a known goonda or the fact that the F.I.R was registered on the basis of the instructions of the Superintendent of Police describing the detenu to be a known goonda cannot at all suggest that the sponsoring authority-the Superintendent of Police in the report under Section 3(1) or the District Magistrate in the order of detention had not applied their mind to the crucial aspect. 26. We find merit in the contention of the learned Addl.D.G.P. that even if the 4th respondent, the sponsoring W.P(Crl.) No.201 of 2009 18 authority had reported under Section 3(1) that the detenu is a known goonda and the 3rd respondent, the District Magistrate on application of mind had found that he was a known rowdy and not a known goonda, the order of detention of the detenu as a known rowdy cannot be held to be bad for the reason that the detenu was described as a known goonda by the sponsoring authority. In this case both the sponsoring authority under Section 3(1) report and the District Magistrate under Section 3 order have reckoned the detenu as a known rowdy. 27. It will not be inapposite in this context to note that going by the definition of a