IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 26TH APRIL 2011 / 6TH VAISAKHA 1933 WP(Crl.).No. 53 of 2011(S) --------------------------------------------- PETITIONER(S): --------------------- PREMAN, S/O.JAYACHANDRAN, AGE 34, T.C.27/1173, THOTTUVARAMBATHU VEEDU, PATTOOR, RISHIMANGALAM WARD, VANCHIYUR, THIRUVANANTHAPURAM. BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.P.M.SANEER SRI.V.S.THOSHIN RESPONDENT(S): ------------------------ 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. THE DISTRICT MAGISTRATE, THIRUVANANTHAPURAM-695001. BY SR. GOVERNMENT PLEADER SHRI P. RAVINDRA BABU. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 26/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(CRL).NO. 53 OF 2011 S PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE DETENTION ORDER NO.S13-78775/09 DATED 1.11.10. EXT.P2 TRUE COPY OF THE ORDER NO.84767/SS.A5/11/HOME DATED 22.11.10. EXT.P3 TRUE COPY OF THE ORDER NO.G.O.(RT).NO.98/2011/HOME DATED 12.1.11. RESPONDENTS' EXHIBITS: EXT.R1(A) TRUE COPY OF THE ORDER NO.84767/SS.A5/2010/HOME DATED 22.11.2010 ACKNOWLEDGED BY THE DETENUE. EXT.R2(A) TRUE COPY OF THE OFFICE LETTER NO.S13.78775/09 DATED 01.11.2010. //TRUE COPY// PS TO JUDGE K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. ----------------------------------------- W.P.(CRL).NO. 53 OF 2011 S ------------------------------------------ Dated this the 26th April, 2011 JUDGMENT K.M. Joseph, J. Petitioner challenges the detention of Smt. Lalitha, who is his mother. The order of detention is passed under the Kerala Anti- Social Activities (Prevention) Act, 2007. 2. We heard Shri S. Ajithkumar, learned counsel for the petitioner and Shri P. Ravindra Babu, learned Senior Government Pleader. 3. Ext.P1 is the order of detention. It is dated 1.11.2010. It was executed and the detenu was arrested on 10.11.2010. The order was approved on 22.11.2010. The order was confirmed by Ext.P3 order on 12.1.2011. W.P.(CRL).NO.53 OF 2011 S 2 4. Learned counsel for the petitioner would address the following contentions before us: Section 3(3) of the Act stands violated in so far as there is non-compliance with the mandate of Section 3(3) of the Act to forthwith send the detention order and the supporting grounds to the Government and the Director General of Police. It is the case of the petitioner that the copy of Ext.P1 and supporting grounds were sent only after 12.11.2010. It is also contended that the approval under Section 3(3) was not within the time as Ext.P2 order of approval is dated 22.11.2010 and the order was executed on 10.11.2010 and 22.11.2010 is the 12th day. It is next contended that the detaining authority has considered eleven cases under the Abkari Act and in all these cases, the allegation is of the detenu being in possession of illicit liquor. It is contended that the detenu cannot be treated as a known goonda, as though the word “known goonda” as defined takes in a bootlegger, the detenu is not a W.P.(CRL).NO.53 OF 2011 S 3 bootlegger as defined in the Act. It is further contended that Ext.R2(b) produced by the respondent would show that Section 3 (3) stands violated in so far as in violation of Section 3(3) only the order of detention is despatched to the Director General of Police. It is next contended that the detenu was not placed before the Advisory Board within the time provided by law and she was placed before the Advisory Board only on 3.1.2011. It is further contended that the further detention is vitiated for the reason that this is a case where the Advisory Board has gone beyond its authority and apart from giving the opinion that there is sufficient cause to detain the detenu, further stated that Government is free to pass the order of confirmation and to continue the detention for such period as they fit it in terms of Sections 10(4) and 12 of the Act. Relying on the decision in Ujjal Mondal v. The State of West Bengal (AIR 1972 SC 1446), it is contended that by the Advisory Board exceeding its authority, it virtually deprived the Government of its discretionary power as to whether the detention should be W.P.(CRL).NO.53 OF 2011 S 4 continued or not. Learned counsel for the petitioner contended that the detenu was not given the copy of the Report of the Superintendent of Police in Malayalam. 5. Learned counsel for the petitioner then argued that the Abkari Officers have been held to be Police Officers and after the amendment by Act 16 of 1997, the Abkari Officers are treated as Police Officers by virtue of the fact that a report under Section 173 of the Code of Criminal Procedure is filed by them after completing investigation. Learned counsel for the petitioner would further argue that being a Police Officer, the detenu cannot be treated as "known goonda" for the reason that the complaints have been filed by the Abkari Officers who are treated as Police Officers. 6. Per contra, learned Senior Government Pleader would contend as follows: There is no violation of Section 3(3). The order of detention was passed on 1.11.2010. The matter was reported on 6.11.2011. W.P.(CRL).NO.53 OF 2011 S 5 It is pointed out that 5.11.2010 was a public holiday. Therefore, in short, it was reported in the matter of four days. He would next contend that there is no violation of Section 3(3) as contended in not despatching the documents apart from the order of detention to the Director General of Police. He referred us to the wording of Section 3(3) and he contended that the Director General of Police has no role to play as such. The only purport of intimating the Director General of Police is to alert him as to the passing of the order of detention so that he may join in the efforts to apprehend the proposed detenu. He would also point out that under Section 3 (3), there is a discretion. It is the Government which has the power to approve or revoke the order and that there is no role for the Director General of Police wherein he is to be consulted, it is contended. He further contends that the charge-sheet would show that the detenu was engaged in transporting liquor also. He would submit that she would come within the definition of the word “bootlegger". As regards the contention that the detenu was placed W.P.(CRL).NO.53 OF 2011 S 6 before the Advisory Board only on 3.1.2011 and therefore beyond time, the learned Senior Government Pleader would point out that under Section 9, the matter has to be placed before the Advisory Board within the time of three weeks and that was done and the Board is expected to give its opinion within nine weeks from the date of detention and it is only that the detenu was placed as such before the Advisory Board on 3.1.2011 and there is no violation of the Act, it is contended. Learned Senior Government Pleader would point out that there is no pleading by the petitioner that the detenu was not able to read and understand Malayalam and it is a matter for pleading. Next, it is contended that the mere fact that the Advisory Board has stated in the opinion that the Government is free to pass an order of confirmation and to continue the detention would not vitiate the detention and Section 10(4) permits precisely the same, namely it is open to the Government to confirm the detention and to continue the detention beyond three months. He would further contend that a perusal of Ext.P3 order of W.P.(CRL).NO.53 OF 2011 S 7 confirmation would bear him out in his contention that the Government had indeed exercised the discretion and what the Advisory Board has opined is in consonance with the provisions of Section 10(4) of the Act. 7. We will first consider the question as to whether there is violation of Section 3(3) of the Act. It is undoubtedly true that under Section 3(3) the Legislature has deliberately employed the word "forthwith". The word "forthwith" has been interpreted by the Apex Court in the decision in Navalshankar Ishwarlal Dave and Another v. State of Gujarat and Others (AIR 1994 SC 1496), wherein the Apex Court, inter alia, held as follows:- “8. The word “forthwith” has been interpreted by this Court by plethora of precedents and it is not necessary to burden the judgment by referring them once over capiasly, though the counsel to the appellants has relied on them. This Court held that the expression `forthwith' would mean `as soon as may be', that the action should be performed by the authority with reasonable speed and expedition with a sense of W.P.(CRL).NO.53 OF 2011 S 8 urgency without any unavoidable delay. No hard and fast rule could be laid nor a particular period is prescribed. There should not be any indifference or callousness in consideration and disposal of the representation. It depends on the facts and circumstances of each case. Any delay in consideration of the representation should be satisfactorily explained. If no satisfactory explanation has been given or found to be willful or wanton or supine indifferent it would be in breach of the constitutional mandate of Art. 22(5). The liberty of a person guaranteed under Art. 21 of the Constitution is a cherished right and it can be deprived only in accordance with law.” Therefore, there can be no doubt that there is a duty on the part of the Authority to report the matter `as soon as may be' to the Government. The question as to whether a provision has to be interpreted as mandatory or directory must depend upon various aspects. They include the question as to whether the object of the Act would be frustrated or promoted if it is interpreted either way. W.P.(CRL).NO.53 OF 2011 S 9 What is the context of the Statute ? What will be the repercussions if the Court holds that it is mandatory or directory ? While the language used may not be conclusive, it plays an important role in giving meaning to the concerned provisions. 8. An order of detention under Section 3 inevitably involves the deprivation of the personal liberty of a person within the meaning of Article 21 of the Constitution. The power to order detention is vested in the Government and Authorized Officers. An order of approval is required only in a case where the order of detention is passed by the Authorized Officers. The District Magistrate may pass an order of detention illegally. He may pass it for malafide reasons. In such and all other cases where the Government finds that the order of detention should not have been passed in law, Government has a power to revoke such orders under Section 13 of the Act. We are not impressed by the contention of the learned Senior Government Pleader that an order of approval cannot be granted or refused except after the order of W.P.(CRL).NO.53 OF 2011 S 10 detention is implemented. The order of approval is granted to the order of detention and not to the detention under the order of detention. This is the result of the language used in Section 3(3). An order of detention even if it is not executed would overhang the proposed detenu like a sword of Damocles. The Officers would remain charged with the duty to execute the order and thus, the time and energy of public servants would necessarily have to be expanded in pursuit of the proposed detenu, if an order of detention should not have been passed in the first place. The Act contemplates a safeguard in the form of the Magistrate having to inform the Government so that the Government may regulate by intervention if need be in appropriate cases so that the opprobrium of an arrest pursuant to an illegal order of detention can be avoided and the Officers are left free to pursue other matters of public interest. An an order of detention was passed in a jurisdiction of suspicion and as a preventive measure. Delayed execution will fatally undermine the very purpose of passing the order of W.P.(CRL).NO.53 OF 2011 S 11 detention. Therefore, the Statute contemplates that the order of detention should be implemented immediately. It is undoubtedly true that the approval need be given only within a period of twelve days from the date of actual detention. Therefore, usually there must be a nexus between the order of detention and the date of actual execution of detention. Delayed execution is an exception to the normal rule and for which no doubt, Section 6 is the remedy provided in the Act in cases of the detenu absconding. If the matter is not reported immediately and the files placed before the Government which is expected to apply its mind, it can be visualised that Government may have to hurry through the examination of the files and to take a hasty decision as to whether the order should be approved. We would think that this would defeat the object of the Statute which contemplates time being given to the Government also to consider the matter and to decide whether approval should be granted or not. Therefore, there can be no doubt that the word "forthwith" must be interpreted as W.P.(CRL).NO.53 OF 2011 S 12 mandatory. This result, we have arrived at, is in no way inconsistent with the view expressed by this Court in the decision in Aarifa Bheevi v. State of Kerala (2009 (3) KLT 155) as clarified in Soja Beegum v. Additional Chief Secretary to Government (2009 (4) KLT 550). 9. The order of detention was passed on 1.10.2010. It was executed on 10.11.2010. The approval was granted on 22.11.2010. The case of the petitioner is that the copy of Ext.P1 and supporting grounds were sent only after 12.11.2010. Learned Senior Government Pleader made available the files and he would contend that actually the matter was reported and order sent along with the documents on 6.11.2010. He would point out that 5.11.2010 was a public holiday (Deepavali) and, therefore, the delay is only of four days. 10. It is necessary also to refer to the contentions of the learned counsel for the petitioner that in Ext.R2(a) there is no reference to the date. In Ext.R2(a) and R2(b), after the Officer has W.P.(CRL).NO.53 OF 2011 S 13 signed it, no doubt, he has put the date as 1/11. In the top of the page in both Exts.R2(a) and R2(b) which are the communications sent to the Government and the Director General of Police respectively, the date is not mentioned. However, the files would show that it was despatched on 6.11.2010. No doubt, in the Counter Affidavit of the first respondent, it is stated to have been received only on 15.11.2010. However, the learned Senior Government Pleader also would impress upon us the file relating to the case to show that actually it was received on 10.11.2010. 11. Learned counsel for the petitioner would point out that unlike in the case of Section 3(3) where the order of approval is to be granted excluding public holidays, public holidays are not excluded to comply with the requirement to report `forthwith' It is no doubt true that the Officer who passes the order under Section 3 must be ready to report the matter forthwith and to send the documents as soon as may. But, at the same time, we would think that in the facts of this case the delay is of four days. The order of W.P.(CRL).NO.53 OF 2011 S 14 detention was executed on 10.11.2010 and approval was given on 22.11.2010. In the circumstances of the case, we are of the view that there is no breach of the duty to send the matter forthwith under Section 3(3) of the Act. 12. Next, we have to deal with the argument based on Section 3(3) again, namely that Ext.R2(b) would show that though the order of detention was despatched to the Director General of Police, the supporting records were not sent to the Director General of Police. Section 3(3) which is the basis of the argument reads as follows: “3. Power to make orders for detaining Known Goondas and Known Rowdies.- (3) When any order is made under this section by the authorised Officer under sub-section (2), he shall forthwith report the fact to the Government and the Director General of Police, Kerala, together with a copy of the order and supporting records which, in his opinion, have a bearing on the matter and no such order shall remain in force for more than 12 days, W.P.(CRL).NO.53 OF 2011 S 15 excluding public holidays, from the date of detention of such Known Goonda or Known Rowdy, unless, in the meantime, it has been approved by the Government or by the Secretary, Home Department if generally so authorised in this regard by the Government.” 13. Learned Senior Government Pleader seeks to sustain the detention by pointing out that under the Act, the Director General of Police has virtually no role to play. It is for the Government to decide whether the detention should be approved. Government has power under Section 13 of the Act to revoke or modify the order of detention. The provisions also do not contemplate any consultation between the Government and the Director General of Police. He would point out that the only purpose which appears to be possible is that being the Head of the Department, when an order of detention is passed and the object of the Act is the speedy implementation of the order of detention, the fact of the order of detention, must be reported to the Director General of Police, so that he in his capacity as the Authority concerned, with co- W.P.(CRL).NO.53 OF 2011 S 16 ordinating the functions of the Police Officers within the State, may be alerted and activised in securing the presence of the detenu at the earliest. He would further contend that while on the one hand there is a duty on the part of the Authorised Officer under Section 3 to not only report the fact of detention accompanied by the order of detention, but he must also forward the supporting records “having a bearing in the matter” to the Government. He would contend that there is no such concomitant duty with regard to the sending of such records to the Director General of Police. In short, his contention is that it must be treated as directory provision. He would also point out that even with reference to the order of detention in this case, the Director General of Police would be posted with the details as to the Officer who has passed the order and the report of the sponsoring authority. 14. Per contra, learned counsel for the petitioner would point out that it is true that the Section does not specifically mandate a role for the Director General of Police in the matter of the W.P.(CRL).NO.53 OF 2011 S 17 Government deciding to approve the detention. He does not dispute that the provision expressly does not contemplate a consultation between the Government and the Director General of Police. But, he would also point out that the Section equally does not contemplate a role for the Director General of Police in the matter of executing the order of detention. He would point out that execution in respect of an absconding person is contemplated with reference to the provisions under Section 6 of the Act and the manner of execution of warrant is provided in the Act itself, that is to say that it should be in accordance with the provisions of the Code of Criminal Procedure and therein, the Director General of Police has no role. 15. No doubt, learned counsel for the petitioner would refer us to Sections 9 and 10 of the Act. Section 9, no doubt, inter alia, speaks of forwarding the Report under Section 3(3) to the Advisory Board. Section 10 also contemplates power with the Board to call for further information from any person, no doubt, W.P.(CRL).NO.53 OF 2011 S 18 through the Government and “any person” would include the Director General of Police also. But, we would think that that by itself should not persuade us to hold that not sending the records in the first place to the Director General would vitiate the detention. 16. It is no doubt true that Section 3(3) imposes a duty on the Authorised Officer to report the fact to the Government and the Director General of Police. It is undoubtedly equally true that it should be accompanied by the copy of the order. Thereafter, the Section contemplates that supporting records which in the opinion of the Authorised Officer have a bearing on the matter being forwarded. The purpose of forwarding the supporting records to the Government has a salutary purpose to achieve. This is for the reason that the continuance of the detention beyond twelve working days will depend upon the application of mind by the statutory Authority concerned, namely the Government or by the Secretary, Home Department with reference to the materials which are made available to it. But, as already noted, the provision does W.P.(CRL).NO.53 OF 2011 S 19 not contemplate any process of consultation between the Government and the Director General of Police in the matter of granting approval. It may not be sound rule of interpretation to read into the provision the requirement of consultation between the Government and the Director General of Police. It would be a case of causus omisus which the court would not readily and usually infer. If that is so, we are of the view that there is no mandatory requirement to send the supporting records which are sent to the Government to the Director General of Police. There is a discretion, we notice, in the matter that the Authorised Officer has to choose as to what records which are to be sent. We take the view that the provision is mandatory in so far as sending of the records, which are found to have a bearing in the matter by the Officer after applying his mind to the matter, to the Government is concerned. But, we hold that the provision is directory in so far as it relates to the sending of the records to the Director General of Police. W.P.(CRL).NO.53 OF 2011 S 20 17. The next question to be considered is the argument that the eleven cases which are referred to by the detaining Authority in the order of detention deal with illegal possession of liquor under the Abkari Act. He would draw our attention to Section 2 (j) of the Act which defines “goonda”. He would point out that a bootlegger is included. But, he would contend that the activities alleged against the detenu in the order of detention relate only to her being in possession of liquor. We extract the definition of the word “bootlegger” hereunder: “2. Definitions.- In this Act, unless the context otherwise requires: © “bootlegger” means a person who distils, manufactures, stores, transports or takes away, imports, exports, sells or distributes any liquor, intoxicating drug or other intoxicating substances in contravention of the Abkari Act, (1 of 1077) and the Rules and Orders issued thereunder or any of the provisions contained in any other law for the time W.P.(CRL).NO.53 OF 2011 S 21 being in force, or knowingly spent or utilises money or give support or give aid to do any of the matters mentioned above, by any person or through any person by providing any animal, vehicle, vessel, other conveyances or any tank, any other articles whatever it may be, or the person who abets to do any such matter in any manner.” He would contend that under the Abkari Act, being in possession of liquor contrary to the provisions may be an offence. But, the Legislature made a deliberate legislative choice and it did not intend to bring the act of being in possession simplicitor within the ambit of preventive detention, as preventive detention involves deprivation of liberty and the court must also respect the legislative value judgment and