IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 9TH FEBRUARY 2009 / 20TH MAGHA 1930 W.P.(Crl.).No. 465 of 2008 (S) -------------------------------------- PETITIONER ------------------ FEBINA, AGED 26 YEARS W/O. NOUSHAD @ PUNNA NOUSHAD, PUTHUVEETTIL HOUSE, PUNNA, CHAVAKKAD, THRISSUR DISTRICT. BY ADV. SRI.K.A.JALEEL RESPONDENTS: ----------------------- 1. ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, THIRUVANANTHAPURAM. 2. PRINCIPAL SECRETARY TO GOVERNMENT HOME DEPARTMENT, SECRETARAIT, THIRUVANANTHAPURAM. 3. DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, THRISSUR DISTRICT. 4. SUPERINTENDENT OF POLICE ,THRISSUR 5. SUPERINTENDENT CENTRAL PRISON VIYYUR. 6. SUB INSPECTOR OF POLICE CHAVAKKAD POLICE STATION. ADDL. D.G.P.SRI.K.K.RAVINDRANATH THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 09/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & C.T. RAVIKUMAR, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(Crl)No.465 OF 2008- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of February, 2009 JUDGMENT Basheer, J: Petitioner's husband Noushad @ Punna Noushad, Puthuveettil House, Punna, Chavakkad in Trichur district is undergoing preventive detention pursuant to Ext.P2 order dated September 19, 2008 issued by the District Magistrate under Section 3(2) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as the 'Act'). Petitioner contends that the order of detention is ex facie illegal and vitiated. Therefore, she prays for issue of a writ of certiorari to quash the above order. There is a further prayer to issue a writ of habeas corpus directing the respondents to produce the detenu before this Court and to release him from illegal custody forthwith. 2. The short question that arises for consideration is whether the order of detention is liable to be set aside and the detenu is to be released from custody. 3. In Ext.P2 order of detention, the District Magistrate (hereinafter referred to as the authorised officer), has referred to five crimes registered against the detenu between 2001 and 2008. In Crime No.392/2001 registered by Chavakkad Police, the allegation against the detenu appears to be that he and three of his associates W.P.(Crl)No.465/08 :: 2 :: had set fire to a car parked in the car porch of the residence of the defacto complainant. The accused had also set fire to electric goods like T.V, V.C.R etc kept inside the house of the brother of the defacto complainant causing a total loss of Rs.2.5 lakhs. Thus, according to the police, the detenu and his three associates committed the offences punishable under Sections 436, 120B read with Section 34 I.P.C. The case is now stated to be pending trial in S.C.No.9/2007 on the file of the Fast Track Court-II, Trichur. 4. In Crime No.221/2002 which was also registered by Chavakkad police against the detenu and two of his associates for the offences punishable under Sections 324 and 308 read with Section 34 I.P.C and also under Section 27 of the Arms Act, the allegation appears to be that they had attacked one Shamsudheen @ Shamsi with deadly weapons like iron pipe and sword and inflicted serious injuries on the victim due to previous animosity. The above case is stated to be pending in S.C.No.887/2007 before the Principal Assistant Sessions Court, Trichur. 5. The third crime referred to in Ext.P2 order, viz. Crime No.476 of 2002 was registered by Kunnamkulam police for various offences including those under Sections 326, 307 and 120B read with Section 149 I.P.C. The charge against the detenu and six of his accomplices was that W.P.(Crl)No.465/08 :: 3 :: they attacked the husband of the defacto complainant Mrs. Shiji, (with deadly weapon like iron pipe) after hatching a criminal conspiracy and forming themselves into an unlawful assembly. The above case is stated to be pending before the Judicial First Class Magistrate,s Court, Kunnamkulam in C.P. No.109 of 2007. 6. The other crime registered against the detenu and the co- accused yet again involved various offences under the I.P.C. including those under Sections 324, 308 and 427 read with Section 149 I.P.C. The said crime (Crime No.131 of 2003) was registered by Chavakkad police against the detenu and seven of his accomplices. The specific allegation was that the accused had used weapons like iron pipe and sword and inflicted serious injuries on the defacto complainant due to previous enmity. The above case is stated to be pending in S.C. No.157 of 2008 before the Subordinate Judge's Court II, Thrissur. 7. The last of the crimes referred to in the order of detention is Crime No.460 of 2008 registered by Chavakkad police under Sections 452 and 427 read with Section 34 I.P.C. The detenu and three of his associates allegedly trespassed into the office of the Communist Party of India (Marxist) and destroyed tin sheets, tube lights etc. resulting in a total loss of Rs.10,000/-. It appears that the investigation is still in progress and the charge sheet is yet to be laid. W.P.(Crl)No.465/08 :: 4 :: 8. Ext.P2 order further reveals that the authorised officer had kept in view the above crimes registered against the detenu. More importantly, the Sponsoring Authority in Ext.P3 report furnished before the Authorised Officer stated thus: "He still continues such activities unabatedly in spite of best efforts from the part of Police by invoking the existing provisions of Indian Penal Code and Criminal Procedure Code, and proves himself to the above law by threatening peace loving people and also witnesses who are against him, thereby showing utter contempt towards the authority and law and thereby acts in such a manner as to cause directly and indirectly feeling of insecurity, danger and fear among the general public and also is a cause of danger to the safety of individuals and the public in general, and thus proves himself to be a fit person to be dealt with under the provisions of The Kerala Anti Social Activities (Prevention) Act, 2007." 9. It is contended by learned counsel for the petitioner that there was no nexus between the so called prejudicial activities allegedly indulged in by the detenu and the immediate reason or provocation to detain him under the provisions of the Act. It is pointed out by the learned counsel that obviously the crimes referred to in Ext.P2 order were of the year 2001 to 2003. The Authorised Officer or the Sponsoring Authority had no case that the detenu had been engaging himself in any anti social activity between 2003 and June 2008 when the last crime was reportedly registered against the detenu. Any how, no crime had been registered against the detenu in the course of this five year period. W.P.(Crl)No.465/08 :: 5 :: 10. The petitioner has a specific case that the detenue was implicated in the latest crime, viz. Crime No.460 of 2008 solely for the reason that he had severed his connection with the Communist Party of India (M). The Sponsoring Authority and the Authorised Officer had deliberately used this latest crime as an immediate cause for detention of the detenu under Section 3 of the Act, at the behest of some other extraneous agency. It is also contended by the learned counsel that the Authorised Officer did not have a case in his counter affidavit that the detenu was involved in any anti social activity between 2003 and June, 2008 endangering the peace and security in the area in question and thereby warranting his immediate detention at the relevant point of time. 11. There is considerable force in the above contention. As rightly pointed out by the learned counsel, the Authorised Officer has not referred to any crime between 2003 and June, 2008 in which the detenu had been involved. In the counter affidavit also, there is not even a whisper that between 2003 and June, 2008, the detenu had been indulging in any anti social activities or that he had been involved in any crime other than those referred to in Ext.P2 order. 12. Sri. K.K. Ravindranth, learned Additional Director General of Prosecutions contends that the detenu had admitted before the Advisory Board that he was out of the country between 2003 and June, 2008. This, W.P.(Crl)No.465/08 :: 6 :: according to the learned counsel, clearly indicates that abstinence of the detenu from indulging in anti social activities was not because of his reformation as such, but only because of his absence from the area of his activity. 13. It is true that such a contention had been taken by respondents 1 and 3 in the counter affidavit. But no material had been produced before us to show that the detenu was in fact away from the country during the relevant period. The order of the Advisory Board is also not made available for our perusal. Anyhow, going by the materials available on record, prima facie we are satisfied that the immediate reason to issue Ext.P2 order was apparently the involvement of the detenu in Crime No.460 of 2008 of Chavakkad Police Station. 14. There is yet another aspect of the matter. We have extracted the relevant portion of Ext.P3 report submitted by the Sponsoring Authority before the Authoised Officer indicating that the detenu had been still continuing to indulge in such anti social activities unabatedly. It is also seen asserted by respondent No.3 in his counter affidavit that the detenu had been threatening peace loving people and witnesses, showing utter contempt towards the authority of law. If that be the position, it escapes our comprehension as to why no such materials had been produced by the Authorised Officer or the Sponsoring Authority to W.P.(Crl)No.465/08 :: 7 :: show that the detenu had still been continuing to indulge in such anti social activities warranting his immediate preventive detention. In that view of the matter, we are satisfied that the contention raised by the petitioner in this regard cannot be brushed aside lightly. It is in this context that the contention of the petitioner that the detenu was implicated in Crime No.460 of 2008 in order to detain him under the Act looms large. 15. Having carefully perused the report of the Sponsoring Authority as well as the order of detention, we are satisfied that the respondents have to do a lot of explaining in this connection. Though the learned Additional Director General of Prosecution pointed out that the respondents have vehemently denied any political vendetta, we are not fully impressed with the above contention. We are persuaded to take the above view especially for the reason that admittedly the detenu was not involved in any other crime between 2003 and June, 2008. 16. The other contention raised by the learned counsel for the petitioner is that there was inordinate and unexplained delay not only in passing the order of detention, but also in executing the same. It is the contention of the petitioner that the Authorised Officer had passed the impugned order only on September 19, 2008 whereas the last of the crimes was registered against the detenu on June 7, 2008. According to W.P.(Crl)No.465/08 :: 8 :: the learned counsel, both the Sponsoring Authority and the Authorised Officer ought to have explained the above delay. 17. We are not very much impressed with the above contention. But, there is some force in the contention raised by the learned counsel that there was no proper explanation for the delay in executing the order of detention. It is the admitted position that the detenu was arrested on December 12, 2008 and that too when he was in judicial custody after his surrender before the court in connection with Crime No. 460 of 2008. Though the respondents have tried to explain it away by saying that the detenu had been absconding ever since commission of Crime No. 460 of 2008 and, therefore, he could not be arrested immediately after issuance of Ext.P2 order, we are not impressed by the above contention either. 18. In this context, learned counsel for the petitioner has invited our attention to Section 6 of the Act. Clause (a) of sub-section (1) of Section 6 postulates that if the Government or the officer authorised to detain a person under the Act has reason to believe that such person has absconded or is concealing himself so that the order cannot be executed, the Government or such officer may make a report in writing of the fact to a Chief Judicial Magistrate or a Judicial Magistrate of the First Class having jurisdiction in the place where the said person ordinarily resides. If in fact, the Authorised Officer or the Government had a case that the W.P.(Crl)No.465/08 :: 9 :: detenu had been absconding or concealing himself, a report as mandated under clause (a) of sub-section (1) of Section 6 of the Act ought to have been filed before the competent Magistrate. The respondents do not have a case that such a report was in fact filed since the detenu had been absconding. In that view of the matter, we are satisfied that the respondents have failed to explain properly the delay in executing the order. Further, the Authorised Officer has no case that the person sought to be detained had been informed through official gazette directing him to appear before such officer. 19. The next contention raised by the learned counsel for the petitioner is that the detenu had not been furnished with a copy of the Rowdy History Sheet that was being reportedly maintained in Chavakkad Police Station. In fact, reference has been made to such Rowdy History Sheet in Ext.P3 report submitted by the Sponsoring Authority before the Authorised Officer. In the counter affidavit of respondent No.6, it is mentioned that copy of Rowdy History Sheet running into two pages had in fact been furnished to the detenu. But, what is seen furnished to the detenu is only a copy of the application sent by the Sub Inspector of Police, Chavakkad Police Station requesting for permission of his superior officer to open a Rowdy History Sheet against the detenu. This communication is of the year 2001. The respondents do not have a case W.P.(Crl)No.465/08 :: 10 :: that copy of the Rowdy History Sheet had in fact been furnished to the detenu. 20. In this connection, it is contended by the learned Additional Director General of Prosecution that the above Rowdy History Sheet had not been relied on by the Authorised Officer while issuing Ext.P2 order. He contends that mere reference to such Rowdy History Sheet in Ext.P3 communication does not oblige the Authorised Officer to either rely on the same or to furnish a copy thereof to the detenu. In this conetxt, he invites our attention to a decision of their Lordships of the Supreme Court in Wasi Uddin Ahmed v. District Magistrate, Aligarh, A.I.R. 1981 S.C. 2166 and submits that it is not necessary to submit copies of documents to which only casual or passing reference may be made in the course of narration of events or which have not been relied upon by the detaining authority while making the order of detention. 21. It is true that the Authorised Officer had not made any specific reference to the Rowdy History Sheet either in Ext.P2 order of detention or in his counter affidavit. But, in paragraph 8 of the counter affidavit, the Authorised Officer has stated that "the detention order was issued only on the basis of the report of the Superintendent of Police which revealed involvement of the detenu in several serious criminal offences." Thus, it is evident that the reference made by the Sponsoring Authority W.P.(Crl)No.465/08 :: 11 :: to the Rowdy History Sheet might also have had a bearing on the process of arriving at a subjective satisfaction after which Ext.P2 order was passed by the Authorised Officer. 22. The last contention raised by the learned counsel for the petitioner is that failure on the part of the Authorised Officer to furnish the translated copy of the detention order is fatal. In this context, he has invited our attention to the decisions of their Lordships of the Supreme Court reported in Hadibandhu Das v. Dist. Magistrate, Cuttack, 1969 Cri. Law Journal, 274 and also Tsering Dolkar v. Administrator, U.T. of Delhi (1987) 2 S.C.C. 69. In the above decisions, their Lordships, while referring to an earlier decision of the Apex Court reported in Harikisan v. State of Maharashtra, A.I.R. 1962 S.C. 911 and quoting therefrom, have held that the grounds in support of the order of detention served on the appellant being a complicated order, the detenu must have the benefit of getting the same translated into any language he is conversant with. But a perusal of the judgment would show that the reference is to the grounds of detention and not to the order of detention as such. 23. In this context, the learned Additional Director General of Prosecution has invited our attention to the decision reported in Devji Vallabhbhai v. Administrator, Goa, Daman & Diu, A.I.R. 1982 S.C. W.P.(Crl)No.465/08 :: 12 :: 1029. In the above decision, it was held by their Lordships that the order of detention being a mere formal recital of the provisions of the section under the relevant statute, it cannot be said that the detenu was in any way handicapped in submitting his representation. It was noticed by their Lordships that if the grounds of detention had been furnished to the detenu in the language known to him, failure of the detaining authority to translate the order of detention in vernacular will not vitiate the order. 24. Our attention has been invited to some other decisions as well, by the learned counsel on either side. In the peculiar facts and circumstances of the case, we do not deem it necessary to refer to all of them. We have carefully perused the entire materials available on record. We are satisfied that the respondents have not succeeded in showing that there was nexus or close proximity between the alleged anti social activities and the immediate reason for arrest and detention of the detenu. Similarly, non supply of the Rowdy History Sheet which had a bearing on the order of detention, as seen from the materials on record, will also vitiate the order of detention. The contention that the detention order was warranted since the detenu had been continuing to indulge in anti social activities is not substantiated at all. W.P.(Crl)No.465/08 :: 13 :: 25. Keeping in view the above aspects, we are satisfied that the order of detention has to be declared as illegal and vitiated. We do so. Ext.P2 order of detention against Sri. Noushad @ Punna Noushad, aged 30, S/o Moideenkunju, Puthuveetil House, Punna, Chavakkad, Thrissur District is quashed. The respondents are directed to release the detenu from detention forthwith, if his continued detention is not necessary in connection with any other case. However, it is made clear that this order will not stand in the way of the respondents to pass fresh orders in accordance with law, if circumstances so warrant. The Writ Petition is allowed as above. (A.K. BASHEER) JUDGE (C.T. RAVIKUMAR) JUDGE sp/