IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 4TH APRIL, 2008 / 15TH CHAITHRA, 1930 WP(Crl.).No. 71 of 2008(S) ------------------------------- PETITIONER: ---------------- ANITHA BRUSE, AGED 35 YEARS, W/O. BRUSE S.POTHANIKKATT, POTHANIKKATT HOUSE, KEERAMPARA P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE SRI.M.H.HANIS SRI.PREM NAVAZ J.R. SRIMANU TOM RESPONDENTS: ------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO MINISTRY OF HOME, THIRUVANANTHAPURAM. 2. THE SUPERINTENDENT OF POLICE (RURAL), ALUVA. 3. THE CIRCLE INSPECTOR OF POLICE, KOTHAMANGALAM. 4. THE SUB INSPECTOR OF POLICE, KOTHAMANGALAM. BY SPL.GOVERNMENT PLEADER & LIAISON OFFICER SRI.K.K.RAVEENDRANATH. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 27/03/2008, THE COURT ON 04/04/2008 DELIVERED THE FOLLOWING: APPENDIX (WP(Crl) No.71 OF 2008) PETITIONER'S EXHIBITS: Ext.P1: Copy of order dated 3.3.2008 passed by the District Collector- District Magistrate detaining the petitioner's husband. Ext.P2: Copy of the notice dtd.3.3.08 issued by the Sub Inspector of Police. Ext.P3: Copy of the intimation dated 3.3.2008 of the order of detention. Ext.P4: Copy of the reasons for detention supplied by the District Collector. Ext.P5: Copy of the preliminary report dtd.1.3.08 of the Supdt.of Police, Ernakulam Rural, Aluva on which the order of detention is made. Ext.P6: Copy of the request dtd.22.2.08 of the Circle Inspector of Police for action under the Act. Ext.P7: Copy of the order dtd.11.3.2008 of the Government. Ext.P8: Copy of the agreement by Sri.Jinarajan, P.A.to Padmaja Venugopal. WP(CRL) 71 OF 2008 :-2-: Ext.P9: Legible copy of Ext.P8 agreement. Ext.P10: Copy of letter dtd.29.10.2007. Ext.P11: Copy of pass issued for lifting of sand. -True Copy- P.A.to Judge. (C.R.) P.R.RAMAN & V.K.MOHANAN, JJ. --------------------------------------------- W.P(Crl).No. 71 of 2008 --------------------------------------------- Dated this the 4th day of April, 2008 J U D G M E N T Mohanan,J: Hopefully pointing out the grievance of the petitioner regarding the alleged illegal detention of her husband namely Sri.Bruce.S.Pothanikkatt, Keerambara, the petitioner approached this court by filing the above writ petition invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India. The main prayer of the petitioner in this writ petition is to issue a writ of habeas corpus commanding the respondents to produce the body of the aforesaid person- the husband of the petitioner before this Court and to set him at liberty forthwith. It is also prayed to declare that the detention of her husband under the Kerala Anti-Social Activities (Prevention) Act, 2007 (Act 34 of 2007) (hereinafter referred to for short as 'the Act' only) is violative of Articles 14, 19, 21 and 22 of the Constitution of WP(Crl) NO. 71 of 2008 :-2-: India as the procedural safeguards have been violated. 2. The allegations in the writ petition as its original form are as follows:- According to the petitioner, she read from the newspaper on the morning of 4.3.2008 that her husband, the above named, has been implicated under the Act without any justification. According to her, the husband was taken from their house at Keerampara between 1 p.m. and 2 p.m. on 3rd March 2008 by two Policemen attached to the Kothamangalam Police Station. When the Police was taking the petitioner's husband, she heard the Policemen telling her husband that the Sub Inspector of Police wanted to see him. Thus, from that time onwards, the petitioner's husband is under illegal custody of the Police and she had also come to know from the newspaper that proceedings are likely to be initiated under the provisions of the Act against her husband. It is averred that the petitioner's husband cannot be included under the aforesaid Act as he will not fall within any of the expressions under WP(Crl) NO. 71 of 2008 :-3-: Section 2 of the Act or he was not engaged in any anti- social activities. She had admitted that the petitioner's husband has been involved in two cases of cheating and one case in relation to lifting of sand. But she had denied the involvement of the petitioner's husband in connection with removal of sand. According to the petitioner, her husband had gone to the house of one Maneesha Sumesh at Inchathotty not for any criminal purposes, but to object their criminal activities and due to tremendous influence exerted by them on the Police, the case was converted to an attempt to outrage the modesty of a woman though the husband of the said lady was there at the house shortly after 7 p.m. It is the further case of the petitioner that some Police Officers attached to the Kothamangalam Police Station were inimical towards the husband of the petitioner. It is asserted by the petitioner that she has reasons to believe that the arrest and detention of her husband by the Kothamangalam Police on 3rd of March, 2008 is the result of personal animosity entertained against her WP(Crl) NO. 71 of 2008 :-4-: husband by some Police Officers and there is absolutely no reason to attract the provisions of the above Act against the petitioner's husband. Thus, according to the petitioner, the detention of her husband will amount to violation of his fundamental rights and the same is unsupported by any law. It is also averred that no orders contemplated under the relevant Act has been issued in accordance with the provisions. Therefore, according to her, the detention of her husband is patently violative of Articles 14, 19, 21 and 22 of the Constitution of India. Thus, according to the petitioner, the continued detention of her husband is absolutely illegal, and he is entitled to be released forthwith and she is entitled to get the reliefs as prayed for in the writ petition. 3. In the grounds especially under ground (a), it is urged that the arrest and taking into custody of her husband by the two Policemen from the Kothamangalam Police Station are absolutely illegal and no order under Section 3 of the Act has been passed at that time. WP(Crl) NO. 71 of 2008 :-5-: Alternatively, it is contended that the petitioner's husband will not come under any of the expressions contained in Section 2 of the Act. It is also urged that the ground for detention also has not been communicated to the detenu. According to the petitioner, the order has not been read over to him at the time of the detention on 3rd March, 2008 between 1 p.m. And 2 p.m. No copy of the order of detention has been served. Thus, according to the petitioner, in any view of the matter, the arrest, detention and custody of the petitioner's husband by the Kothamangalam Police are liable to be declared altogether as invalid in law and therefore, he is liable to be released forthwith. 4. Subsequently, the petitioner herein had preferred three interlocutory applications. I.A.No.3406 of 2008 is filed with a prayer to permit her to correct the error in the writ petition and the same was allowed by this Court on 19.3.2008. Thereafter, two more interlocutory applications are filed out of which I.A.No.3730 of 2008 is filed with a prayer to amend the WP(Crl) NO. 71 of 2008 :-6-: writ petition by incorporating an additional prayer i(a), that is, to call for the records leading to the issue of Ext.P1 and quash the same by issuance of a writ of certiorari or any other appropriate writ, order or direction and the same was allowed by this Court as per order dated 19.3.2008. The other application, I.A.No.3892 of 2008 is filed with a prayer to amend and incorporate the two additional prayers namely, prayer Nos.(iii) and (iv). The third prayer is to call for the records leading to the issue of Ext.P7 and quash the same by the issuance of a writ of certioriari or any other appropriate writ, order or direction. The fourth prayer is to declare that Section 12 of Act 34 of 2007 is unconstitutional and violative of Article 22 of the Constitution of India and therefore, void and unenforceable in law. The said petition was also allowed by this Court as per order dated 19.3.2008. As per order dated 27.3.2008 in I.A.No.4242 of 2008, the District Collector and District Magistrate, Ernakulam is allowed to be impleaded as additional fifth respondent in the WP(Crl) NO. 71 of 2008 :-7-: above writ petition. 5. Respondents 1 and 2 have filed separate counter affidavits. The contention raised by the first respondent in the counter affidavit is to the effect that the District Collector by his letter dated 7.3.2008, which is received by the Government on 11.3.2008, informed the Government that his order of detention No.M7.26662/07(46) dated 3.3.2008 against the detenu has been executed on 4.3.2008 and that he has been detained under Section 3(1) and 3(2) of the Act. According to the first respondent, the report of the Collector includes the detenu's acknowledged copies of the order of detention and grounds for detention and copies of the supporting documents. It is stated that the grounds for the detention detailed crimes involving offences falling under Chapter XVI and XVII of the Indian Penal Code committed by the detenu as also for illegal mining of river sand. The Police report shows that he threatens people to prevent them from informing the police of his illegal activity. In Crime No.52/2007, WP(Crl) NO. 71 of 2008 :-8-: under trial now, it is stated that he has been involved in an unlawful assembly, a gang of accomplices and attacked a lady at her home at mid night on 15.1.2007 alleging that she informed the Police about his illegal sand movements. According to the Collector, from the records, he had satisfied that the detenu can be classified as a 'Known Rowdy/Known Goonda' as defined under the Act and as classified by the District Collector in his order of detention. The first respondent further stated that on being satisfied, on evaluation of the said materials that if the detenu is allowed to continue his anti-social activities unrestricted, it will cause harm to the environment, danger, alarm and a feeling of insecurity to the public, the Government has approved the detention under Section 3(3) of the Act as per Order No.17186/SSA5/2008/Home dated 11.3.2008, a copy of which is produced as Ext.R1(a). It is also stated that copy of Ext.R1(a) order was forwarded to the Superintendent, Central Jail, Viyyur for serving on the detenue immediately on receipt of it on 11.3.2008 itself. WP(Crl) NO. 71 of 2008 :-9-: It is also stated that the matter will be placed before the Advisory Board on or before 25.3.2008, that is, within 21 days of the date of detention (4.3.2008) and further action as per Section 10(4) of the Act would be taken by the Government on receipt of the report of the Advisory Board under Section 10 of the Act. The Government has also stated that from the records submitted by the District Collector, Ernakulam, it is seen that the detenu is involved in five criminal cases pending trial before the competent criminal courts, relating to offences falling under Chapters XVI and XVII of I.P.C. and one case under Mines and Minerals (D&R) Act, 1957 meriting his detention. Thus, according to the first respondent, the petitioner's husband is detained in pursuance of an order made under a law providing for preventive detention and in issuing the said order and executing the same, all procedural requirements as mandated by the provisions of the statute, namely the Kerala Anti- Social Activities (Prevention) Act, 2007 and Article 22(5) of the Constitution have been strictly complied with. WP(Crl) NO. 71 of 2008 :-10-: Therefore, according to the first respondent, the petitioner is not entitled to get any relief. 6. In his counter affidavit, the second respondent has stated that by his preliminary report dated 1.3.2008, information was given to the District Magistrate, Ernakulam about the involvement of the detenu in six criminal cases including house trespass, attempt to culpable homicide, cheating and offence under the provisions of Mines and Minerals (Development and Regulation) Act, 1957 and Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. It was stated in the report that the detenu cheated 17 persons in Ernakulam District by offering jobs at Kochi International Air Port and deceitfully collected huge amounts from them. The report further shows that the detenu is currently involved in illegal mining and transportation of river sand which causes danger to the safety of ecological system and environment. According to the report, the detenu is a terror in Ernakulam District, especially in WP(Crl) NO. 71 of 2008 :-11-: the jurisdiction of Kothamangalam Police Station and neighbouring places and that he is a 'Known Goonda' and 'Known Rowdy' as defined under the Act due to his criminal activities as stated above. It is also reported that the detenu is likely to commit offences causing danger to the life and property of law abiding citizen and causing danger to the safety of ecological system and environment. The report is produced as Ext.R2(a). In para 5 of the counter affidavit, the second respondent further disclosed the details about the criminal activities of the detenu. Thus, the information is specific about the involvement of the detenu in six criminal cases namely., (1) Cr.No.584/2004 under Section 420 and 34 I.P.C. (2) Cr.No.605/2004 under Section 420 and 34 I.P.C. (3) Cr.No.606/04 under Section 420 and 34 I.P.C., (4) Cr.No.621/04 under Section 420 and 34 I.P.C., (5) Cr.No.52/07 under Sections 143,147,148, 452,323,354, 427 and 308 I.P.C. and (6) Cr.No.703/07 under Section 4 (1)(A) read with Section 21 of the Mines and Minerals (Development and Regulation) Act and Section 20 of the WP(Crl) NO. 71 of 2008 :-12-: Kerala Protection of River Banks Regulation and Removal of Sand Act, 2001 and all the above crimes were registered in the Kothamangalam Police Station. According to the report, in all the above cases, charge sheets have been filed after investigation and except for Crime No.52/07 which is pending trial before the Sessions Court, Ernakulam as S.C.No.420/07, all other cases are pending trial before the Judicial First Class Magistrate's Court, Kothamangalam as C.C.Nos.41/06, 50/06, 49/06 and 40/06. The report further shows that the detenu is still very active in his criminal activities which cause harm, danger, alarm and feeling of insecurity to the general public of Ernakulam Rural District and he is a leader of sand mafia operating within Kothamangalm Police station limits and neighbouring places and he is committing offences causing danger to the safety of ecological system and environment. It is also reported that he is also threatening local people who passes information to the Police about his illegal action. As he was habitually committing offences WP(Crl) NO. 71 of 2008 :-13-: causing threat to the public safety, action was taken against him on 12.9.2007 by registering a case in Cr. No.882/2007, under Section 110(e) of the Cr.P.C. by the Sub Inspector of Police, Kothamangalam. According to the report, in the light of the above criminal background of the detenu, it is reported to the Collector that the detenu comes under the category of persons defined as 'Known Goonda' and 'Known Rowdy' in Section 2(o) and (p) of the Act and requested that in the interest of the safety of ecological system and environment and safety of life and property of public, he may be proceeded against under Section 3(1) of the Act. Accordingly, the District Magistrate issued the order under Section 3(1) and 3(2) of the Act, with a view to prevent the detenu in acting in such a manner as aforesaid, placing him under detention for a period of six months along with the grounds of detention, subject to confirmation by the Government within 12 days from the date of detention. Copy of the order and the grounds are produced as Ext.R2(b) and Ext.R2(c) respectively. Ext.R2(d) is a copy WP(Crl) NO. 71 of 2008 :-14-: of the memo issued by the District Magistrate to the second respondent for executing the order of detention. The Jail Authority was informed that the detenu shall be set at liberty if no order was received from the Government confirming the detention of the detenu within 12 days. Thus, according to the second respondent, the husband of the petitioner, the detenu was arrested by the Sub Inspector of Police, Kothamangalam at 4 p.m. on 3.3.2008 from the bus stop near the Kothamangalam Police Station and was produced and detained at Viyyur Central Jail on 4.3.2008. According to the second respondent, all the documents such as copies of detention order, grounds of detention, memo for executing the order of detention and other supporting documents were served on the detenu, the receipt of which has been acknowledged by him by affixing his signature and endorsement on the concerned documents. Thus, the second respondent justified the order of detention against the husband of the petitioner. All contrary averments contained in the WP(Crl) NO. 71 of 2008 :-15-: writ petition were specifically denied in the counter affidavit of the second respondent. It is also submitted through the counter affidavit of the second respondent that the detention of persons in pursuance of an order made under a law providing for preventive detention is permitted under Article 22(4) of the Constitution of India and it is well established proposition of law that to the extent that provisions are made in Article 22, it cannot be controlled by Article 21 of the Constitution of India. Thus, according to them, there is no violation of Articles 14, 19, 21 and 22 of the Constitution of India in the matter of detention of the petitioner's husband. 7. We have heard Sri.K.Ramakumar, the learned Senior counsel appearing for the petitioner as well as Sri.K.K.Ravindranath, Special Government Pleader and the Liaison Officer. 8. During the course of argument, Sri.K.Ramakumar, Senior counsel appearing for the petitioner emphatically submitted that the detention of the petitioner's husband is in total violation of the WP(Crl) NO. 71 of 2008 :-16-: mandate contained in Article 22 of the Constitution of India. Pointing out the wordings contained in the order of detention, the learned counsel submits that on the same set of facts and allegations, the petitioner's husband cannot be treated as 'Known Goonda' and 'Known Rowdy'. The using of the above two definitions altogether would show the non-application of mind by the detaining authority. Another point advanced by the learned counsel is that the order and materials itself indicate the non application of mind by the detaining authority even on the available documents. It is also argued that the arrest of the detenu was not in accordance with the process prescribed by the Act as well as the position of law formulated by the Supreme Court. After inviting our attention and pointing to the statement regarding the date of arrest contained in the counter affidavit filed by the first and second respondents, it is submitted that there is a glaring contradiction regarding the actual date of arrest of the detenu. On the other hand, Mr.K.K.Ravindranath in his WP(Crl) NO. 71 of 2008 :-17-: argument emphatically denied the allegations and submits that the detention of the petitioner's husband is in no way violated any of the provisions of the Constitution of India and the above Act. According to the learned Special Government Pleader, considering the criminal background of the detenu as disclosed from the report of the second respondent, he will definitely come within the definition of both 'Known Goonda' and 'Known Rowdy' and therefore, there is no illegality in appearing the term 'Known Goonda/Known Rowdy' in the detention order. After full consideration of the materials and on his subjective satisfaction, the detaining authority has issued the impugned order so as to prevent the detenu from indulging further criminal activities. It is also submitted that the arrest was done in accordance with the prescribed procedure and no variation from the same. It is pointed out by Mr.K.K.Ravindranath that there is no contradictory statement regarding the arrest and detention in the counter affidavits filed by the first and second WP(Crl) NO. 71 of 2008 :-18-: respondents. Inviting our attention to para 9 of the counter affidavit of the second respondent, the learned Government Pleader submits that as per the directions of the second respondent, the Sub Inspector of Police, Kothamangalam effected the arrest of the detenu from the bus stop near the Kothamangalam Police Station at 4 p.m. on 3.3.2008 complying with all the directions issued by the Supreme Court and thereafter, the detenu was produced before the Superintendent of Central Jail, Viyyur on 4.3.2008 and admitted there as per the Jail Admission Authorization issued by the District Magistrate. Therefore, the detention in effect will start only from 4.3.2008 though he was arrested at 4 p.m. on 3.3.2008 and thus, according to the learned Government Pleader, there is no conflict with respect to the date of arrest. 9. As pointed out earlier, the petitioner has brought an amendment to the writ petition and incorporated certain additional statement of facts and additional grounds namely grounds (b) and (c) to (f). WP(Crl) NO. 71 of 2008 :-19-: Consequently, certain additional prayers were also incorporated. Thus the prayer No.i(a) is incorporated. The another important prayer brought by way of amendment is the fourth prayer by which it is sought for a declaration that Section 12 of the Act 34 of 2007 is unconstitutional and violative of Article 22(4) of the Constitution of India and therefore, void and unenforceable in law. Mr.Ramakumar, learned Senior Counsel appearing for the petitioner during his fervent plea for a declaration that Section 12 of the Act 34 of 2007 is unconstitutional, invited our attention to the provision of the Constitution of India namely, Article 22 of the Constitution of India and also Section 12 of the Act. Mr.Ramakumar took us through Article 22 of the Constitution of India which reads as follows:- “22. Protection against arrest and detention in certain cases.-- (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. (2) Every person who is arrested and detained WP(Crl) NO. 71 of 2008 :-20-: in custody shall be produced before the nearest magistrate within a period of twenty- four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. (3) Nothing in clauses (1) and (2) shall apply-- (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention. (4)No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless-- (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7). ....................................................................................... [To come into effect on enforcement of Section 3 of Constitution (Forty-fourth Amendment) Act, 1978] WP(Crl) NO. 71 of 2008 :-21-: [(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than two months unless an Advisory Board constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court has reported before the expiration of the said period of two months that