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 21ST OCTOBER 2009 / 29TH ASWINA 1931 WP(Crl.).No. 368 of 2009(S) --------------------------- PETITIONER(S): --------------- SINDHU.K., W/O.RAVIKUMAR, CHEPPALLY MUKKU COLONY, KUPPITTAYAM, SAKTHIKULANGARA CHERRY, SAKTHIKULANGARA VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.C.RAJENDRAN RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO DEPARTMENT OF HOME AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE, KOLLAM. 3. THE DEPUTY COLLECTOR (GENERAL) AND ADDITIONAL DISTRICT MAGISTRATE IN CHARGE OFFICE OF THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE, KOLLAM. 4. THE DISTRICT SUPERINTENDENT OF POLICE, KOLLAM. 5. THE CIRCLE INSPECTOR OF POLICE, CHAVARA, KOLLAM. 6. THE SUB INSPECTOR OF POLICE, SAKTHIKULANGARA POLICE STATION, KOLLAM. 7. THE SUPERINTENDENT OF CENTRAL PRISON, THIRUVANANTHAPURAM. A.D.G.P SRI.K.K.RAVINDRANATH FOR R1 TO 7 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 21/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * W.P.(Crl).No.368 of 2009 ---------------------------------------- Dated this the 21st day of October 2009 J U D G M E N T Basant,J Can an Additional District Magistrate pass an order under Section 3(2) of the Kerala Anti-Social Activities (Prevention) Act (hereinafter referred to as the KAAPA) even when he happens to be temporarily in charge of the office of the District Magistrate. This is the crucial question to be decided in this writ petition. 2. To the vitally relevant and skeletal facts first: The petitioner is the wife of a detenu by name Ravikumar, against whom the 3rd respondent, Deputy Collector (General) and Additional District Magistrate in charge has passed the impugned order of detention Ext.P1 under Section 3(2) of the KAAPA. A report was submitted to the 2nd respondent, District Magistrate, by the 4th respondent District Superintendent of Police. That report under W.P.Crl No.368/09 2 Section 3(1) is dated 11/6/2009 (signed on 13/6/2009) and a copy of the same is produced as Ext.P3. That report is addressed to the District Magistrate, Kollam, the 2nd respondent. Long later, we find the 3rd respondent - Deputy Collector (General) and Additional District Magistrate in charge of the office of the District Collector and District Magistrate proceeded to pass Ext.P1 order. The 2nd respondent, District Collector and District Magistrate, Kollam was temporarily absent from duty at the relevant time. During the period 27/6/2009 to 09/08/2009, the District Magistrate was not available to perform his duties and he had left Kollam on the afternoon of 26/6/2009 handing over charge to the 3rd respondent herein. It is stated that the charge was handed over by the 2nd respondent to the 3rd respondent; but no documents are produced to prove such handing over of charge. The 3rd respondent, who thus started discharging duties as the District Magistrate in charge, had proceeded to pass the impugned order on 18/7/2009. The detenu was arrested on W.P.Crl No.368/09 3 30/7/2009. It is submitted that orders under Section 3(3) and 10(4) have all been passed subsequently. 3. Long later, by G.O (Rt) No.2777/2009/RD dated 10/08/2009, the Government had ratified the act of the 2nd respondent handing over charge to the 3rd respondent. The said order dated 10/08/2009 indicates that full additional charge had been handed over by the 2nd respondent to the 3rd respondent before he left Kollam on 26/6/2009. The 2nd respondent had left Kollam for attending the third phase of Mid Career Training programme, MCT for I.A.S 2009 held at Mussoorie from 29/6/2009 to 21/08/2009. 4. Before us, the learned counsel for the petitioner and the learned Additional Director General Prosecutions have advanced their arguments. The learned counsel for the petitioner has raised various contention to assail the impugned order of detention and the consequent detention; but we feel, in the view which we propose to take, that it is necessary to consider only the challenge raised on the first ground, that is W.P.Crl No.368/09 4 “the 3rd respondent does not have the legal and jurisdictional competence to pass any order under Section 3(2) of the KAAPA.” 5. The Ground: It will be necessary and apposite for this court at the very outset to survey the relevant provisions of the statute. Section 3(1) and 3(2) of KAAPA read as follows: 3. Power to make orders for detaining known Goondas and known Rowdies:- (1) The Government or an officer authorised under sub-section (2), may, if satisfied on information received from a Police Officer not below the rank of a Superintendent of Police with regard to the activities of any Known Goonda or Known Rowdy, that with a view to prevent such person from committing any anti-social activity within the State of Kerala in any manner, it is necessary so to do, make an order directing that such person be detained. (2) If having regard to the circumstances prevailing, or likely to prevail in any area, the Government, if satisfied that it is necessary so to do, may, by order in writing, direct that during such period as may be specified in the said order, the District Magistrate having jurisdiction may exercise the powers under sub-section (1) in respect of such persons residing within his jurisdiction or in respect of such persons not so resident who have been indulging in or about to indulge in or abet any anti-social activities within such jurisdiction. (emphasis supplied) W.P.Crl No.368/09 5 6. Section 3(1) confers power on the Government to pass an order of detention. Section 3(1) also states that an officer authorised by the Government under Section 3(2) can also pass an order subject of course to approval by the Government under Section 3(3). Section 3(2) speaks of the power of the Government to authorise the District Magistrate having jurisdiction to exercise the powers under sub Section (1). There can be no perpetual delegation to anyone. The same can be only for such specified periods. In exercise of the powers under Section 3(2), the Government had issued notification from time to time and the relevant notification in force on the date of the impugned order reads as follows: S.R.O.No.312/2009: In exercise of the powers conferred by sub-section (2) of Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (Act 34 of 2007) the Government of Kerala, having regard to the circumstances prevailing in all the districts in the State are satsfied that it is necessary so to do, hereby direct the District Magistrate of all the districts to exercise the powers under sub-section (1) of Section 3 of the said Act in respect of persons residing within their jurisdiction or in respect of persons who have been indulging in or about to indulge in or abet any anti-social activities within such W.P.Crl No.368/09 6 jurisdiction for a period of one year with effect on and from 21st April, 2009. Explanatory Note : (This does not form part of the order, but is intended to indicate its general purport) As per sub-section (2) of Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (Act 34 of 2007), Government of Kerala had directed the District Magistrates of all the districts in the state to exercise the powers under sub-section (1) of Section 3 of the said act in respect of persons residing within their jurisdiction or in respect of persons who have been indulging in or about to indulge in or abet any anti- social activities within such jurisdiction for a period of one year vide Order No.17589/SS.A5/2008/Home dated the 9th April, 2008, published as S.R.O.No.372/2008 in the Kerala Gazette Extraordinary No.740 dated 10th April, 2008. The said period will expire on 20th April, 2009. Government have decided to authorise the District Magistrates in all the districts of the State under sub-section (2) of Section 3 of the said Act for a further period of one year on and from 21st April 2009. The order is intended to achieve the above object. (emphasis supplied) It may be relevant to note that the notification clothes “the District Magistrates of all Districts” only and not the officials holding charge of the District Magistrate from time to time. 7. The District Magistrate is not defined under the KAAPA. To ascertain who a District Magistrate under Section 3(2) is, one has to take the assistance of the Code of Criminal Procedure (the Code hereafter). Section 20 of W.P.Crl No.368/09 7 the Code speaks of appointment of the Executive Magistrates including the District Magistrates. Sections 20 (1) to 20(3) appear to be relevant for our purpose. We extract Sections 20(1) to (3) of the Code. 20. Executive magistrates: (1) In every district and in every metropolitan area, the State Government may appoint as many persons as it thinks fit to be Executive Magistrates and shall appoint one of them to be the District Magistrate . (2) The State Government may appoint any Executive Magistrate to be an Additional District Magistrate, and such Magistrate shall have [such] of the powers of a District Magistrate under this Code or under any other law for the time being in force [as may be directed by the State Government]. (3) Whenever, in consequence of the office of a District Magistrate becoming vacant, any officer succeeds temporarily to the executive administration of the district, such officer shall, pending the orders of the State Government, exercise all the powers and perform all the duties respectively conferred and imposed by this Code on the District Magistrate . (emphasis supplied) 8. A District Magistrate can be appointed only by the State Government. To be a District Magistrate, the incumbent has to show his appointment under Section 20(1) of the Code. W.P.Crl No.368/09 8 9. The Code contemplates the appointment of Additional District Magistrates. Section 20(2) deals with appointment of Additional District Magistrates. An Additional District Magistrate does not, ipso facto, have powers of the District Magistrate. Section 20(2) makes it clear that such Additional District Magistrate shall have such of the powers of the District Magistrate under the Code or under any other law for the time being in force “ as may be directed by the State Government”. We may at once note that there is no contention that there has been any notification or direction by the Government specifically conferring on Additional District Magistrates like the 3rd respondent powers under Section 3 of the KAAPA. 10. Section 20(3) deals with temporary vacancies in the office of the District Magistrates. It declares that an incumbent succeeding temporarily to the executive administration of the district shall have all the powers and perform all the duties respectively conferred and imposed “by this code” on the District Magistrate. W.P.Crl No.368/09 9 11. We may pause and look at the scheme of Section 20(1) to (3). A District Magistrate can be appointed only under Section 20(1). . An Additional District Magistrate can be appointed under Section 20(2). He does not, ipso facto, on such appointment have all the powers of the District Magistrate; but he can exercise only such powers under the Code or any other law as may be directed by the State Government. An Additional District Magistrate is an Executive Magistrate. His powers to function as a District Magistrate under the Code or any other law must be traced to his appointment as such under Section 20(2) and a further direction from the State Government of the nature of functions that he can perform under the code or under any other law. 12. Section 20(3) takes note of the possibility of temporary vacancies. An officer who succeeds temporarily to the executive administration of the District can exercise the powers of the District Magistrate. But Section 20(3) makes it crystal clear that only such powers under the W.P.Crl No.368/09 10 Cr.P.C can be exercised. Reading of Section 20(2) in contra distinction with Sec.20(3) makes it crystal clear that powers under the other laws (KAAPA is one such other law) cannot be exercised by a successor who temporarily discharges the duties of a District Magistrate in his absence. Even the Government cannot confer such powers on a temporary occupant in terms of Section 20(3). To enable him to exercise such powers the Government must appoint him as District Magistrate under Section 20(1) or confer on him such powers to act under other laws under Section 20(2) of the Code. 13. The crucial question that we are called upon to decide is whether the 3rd respondent is a District Magistrate and he can exercise the powers under Section 3(2) in such capacity as District Magistrate or the successor temporarily discharging the duties of the 2nd respondent in his absence. 14. No one has a case that the 3rd respondent is a District Magistrate. He has admittedly not been appointed as one under Section 20(1) of the Code. W.P.Crl No.368/09 11 15. A District Magistrate gets authority to pass an order under Section 3(2) not under the KAAPA; but on the basis of a notification issued by the Government under Section 3(2) of the KAAPA. The instrument under which the District Magistrate gets powers under the KAAPA is the notification under Section 3(2). In fact, a District Magistrate derives his powers to pass an order under Section 3(2) not under the Act; but on the basis of a notification issued under the Act. The notification is to remain in force only for such period as may be specified in the notification. It is brought to our notice that SRO No.363/07 was initially issued and the same was extended from time to time. It is thus that the notification dated 15/4/2009 extracted above was issued. The Government alone can pass the order under Section 3 of the KAAPA ordinarily. It can if circumstances warrant delegate its powers under Section 3 (2). Such delegation must be by notification. Such delegation can be only to a District Magistrate. All District Magistrates are not reckoned as worthy of exercising such W.P.Crl No.368/09 12 powers. They must be District Magistrates and they must be reckoned as worthy of such delegation by the Government. Only then can they exercise delegated authority under Section 3(2). There cannot be blanket delegation. Circumstances must warrant delegation. To specified District Magistrates for specified periods such delegation can be made by the Government under Section 3(2). 16. It will be apposite at this juncture to take note of the scheme of Section 3 and the enormity of the powers vested in the Government as also its delegate, the District Magistrate under Section 3 of the KAAPA. Freedom and liberty are the values most cherished under the Constitution. In a case of preventive detention intrusion is made into that sacro sanct right of liberty and freedom of the individual. A person is deprived of his liberty under the KAAPA not punitively for the contumacious and culpable acts committed by him; but only to prevent the possibility of commission of anti social activities in future. All precedents declare that the law of preventive detention is an W.P.Crl No.368/09 13 unwelcome intrusion into the freedom and liberty of an individual; but that bitter pill has to be accepted and swallowed in the interest of societal safety and security. The Constitution, the legislatures and the courts have always been looking for checks and safeguards to ensure that unjust intrusions are not made into this paramount domain of individual freedom and liberty. It is unnecessary for us to refer to such safeguards and stipulations available under the constitution, the statutes and the precedents. Suffice it to say that it has always been zealously insisted that such powers must be exercised by superior, sublime, experienced and unbiased authorities competent to exercise such functions. An examination of the provisions of the KAAPA shows that the law insists that the sponsoring for detention can be done only by a police officer not below the rank of a Superintendent of Police. Even the duty of sponsoring is exclusively entrusted in the hands of very high police functionaries - evidently to prevent and eliminate the possibility its misuse against the interests of the citizen. W.P.Crl No.368/09 14 17. It is in this context that we have to note that the power under Section 3 is primarily vested in the State Government and not on any other individual or functionary. However, considering the exigencies of such public duty, the Government is clothed with authority to delegate such power – that too only for specified period to executive officials. The legislature, in its anxiety, appears to have trusted only District Magistrates when they chose to confer on the Government the power to delegate such authority. A District Magistrate is the highest executive functionary in a district. Ordinarily, the District Magistrate is an experienced person from the higher administrative service. The legislature, it appears to us, had granted permission to the Government to delegate such onerous responsibility only to a District Magistrate taking into account the high office which such District Magistrate occupies under the scheme of executive administration. The scheme of the Act therefore, it appears to us, is to insist that only the 14 specified officials who head the district administration, considering W.P.Crl No.368/09 15 the high and responsible office which they hold, should alone be conferred with delegated authority to deny freedom and liberty of a citizen on suspicion. The law of preventive detention, it has often been described, is the juris-prudence of suspicion. The authority which is competent to deprive a citizen of his freedom and liberty must be of such height and sublimity that he will be able to deal with this jurisdiction with the requisite care, caution and circumspection. That appears to be the rationale of the legislature conferring the power on the Government, and if necessary for specified period, permitting delegation of such authority to the District Magistrates. Not every District Magistrate but only such District Magistrates who the Government feels can safely handle the sublime jurisdiction can be permitted to exercise such delegated authority that too for specified periods only. 18. In the instant case, the 3rd respondent is not a District Magistrate. He is only an Additional District Magistrate. As an Additional District Magistrate, without W.P.Crl No.368/09 16 dispute, the powers under the KAAPA have not been delegated to him under Section 20(2) of the Code. Needless to say, there can be no delegation under Section 3 of the KAAPA of any such powers to the 3rd respondent who is only an Additional District Magistrate and not a District Magistrate. 19. How then can the respondent justify the order passed by the 3rd respondent under Section 3 of the KAAPA. The learned A.D.G.P relies heavily on Section 13(2) of the Kerala Interpretation and General Clauses Act (hereinafter referred to as the 'GC Act'). We extract Section 13(2) below. 13(2): Where, an Act confers a power or imposes a duty, on the holder of an office, as such, then, unless the contrary intention appears the power may be exercised and the duty shall be performed by the holder of the office for the time being or by a person duly appointed to act for him or to be in charge of powers and duties of that office. (emphasis supplied) 20. The learned A.D.G.P contends that the District Magistrate under Section 3(2) and under the notification is not a persona designata. The powers are conferred under W.P.Crl No.368/09 17 Section 3(2) only on the District Magistrate and not on any incumbent holding office of the District Magistrate. That being so, anyone who is the District Magistrate under law and who is competent to discharge the duties of a District Magistrate under law must be held to be the District Magistrate for the purpose of Section 3(2) and the notification and consequently it must be held that the 3rd respondent was the “District Magistrate having jurisdiction” referred to in Section 3(2) and in the notification and consequently the order passed by him is justified and is within his powers. 21. This calls for careful scrutiny of Section 3(2) as also the notification and Section 13(2) of the GC Act. A reading of Section 3(2) of the KAAPA shows that it is the District Magistrate having jurisdiction to whom the powers can be delegated by the Government. An argument is advanced that the “District Magistrate having jurisdiction” must include the District Magistrate legally competent to exercise the functions of the District Magistrate under law. W.P.Crl No.368/09 18 He need not necessarily be a District Magistrate appointed under Section 20(1) contends the learned A.D.G.P. 22. We are unable to agree. The expression 'District Magistrate having jurisdiction' appearing in Section 3(2) must be understood in the light of the expressions “his jurisdiction” and “such jurisdiction” appearing later in Section 3(2). They deal with territorial jurisdiction. There are 14 districts in the State and 14 District Magistrates. Each one can exercise jurisdiction only within the territory of his district. The expression “District Magistrate having jurisdiction” read in the context and in the light of the expressions 'his jurisdiction' and “such jurisdiction” appearing later in Section 3(2) must definitely be held to mean the District Magistrate having territorial jurisdiction and not any person occupying the seat of the District Magistrate temporarily to meet administrative exigencies. At any rate, the language of Section 3(2) cannot enable us to construe that any incumbent holding the office of the District Magistrate temporarily will also be competent to W.P.Crl No.368/09 19 pass an order under Section 3(2) in exercise of the delegated authority. 23. The notification issued under Section 3(2) which we have already extracted above also refers only to the District Magistrates of the 14 districts and certainly the expression 'District Magistrate' in the notification is not elastic enough to accommodate within it persons temporarily discharging the duties of the District Magistrate. 24. That takes us to Section 13(2) of the GC Act. We have already extracted Section 13(2). First of all, it must be noted that Section 13(2) can apply only where powers are conferred under an “Act”. In this case the Act does not confer any power. 25. The Act only enables conferment of power by delegation and does not itself confer power on any District Magistrate. Conferment of power is under the notification issued under Section 3(2). Section 13(2), the language of the provisions makes it very clear can apply only where W.P.Crl No.368/09 20 conferment of power is under an “Act”. The expression 'Act' is also defined in the GC Act and we extract below Section 2(3) of the GC Act. 2(3): “Act” shall mean a Proclamation or Act of Travancore or Cochin, an Act or Ordinance of Travancore-Cochin, an Act passed by the Legislature of the State of Kerala, an Ordinance promulgated by the Governor under Article 213 of the Constitution or, where with respect to the State of Travancore-Cochin or Kerala the power to make laws is vested in the President or other authority under sub-clause (a) of Clause (1) of Article 357 of the Constitution, any law made in exercise of such power. 26. We have no hesitation to agree that the expression 'law' will include Acts, rules and notifications in a generic sense; but the language of Section 13(2) clearly shows that the conferment of the power must be under an Act to attract Section 13(2) and the Act as defined under Section 2(3) does not at all refer to any notification. Though the expression 'law' may include such notifications under the Act, in this case conferment of power must be held to be under the notification and not under the Act. For that reason, it appears to us that Section 13(2) may not W.P.Crl No.368/09 21 specifically apply to a District Magistrate in charge like the 3rd respondent herein who is really only an Additional District Magistrate. 27. Moreover, it must also be seen that a contrary intention excludes the application of Section 13(2) of the Act. Is there a contrary intention expressed in the KAAPA or under the Code to make Section 13(2)