IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 7TH SEPTEMBER 2007 / 16TH BHADRA 1929 WP(Crl.).No. 153 OF 2007(S) --------------------------- PETITIONER: ------------ ABDUL KAREEM P.A.AGED 65 YEARS, S/O.ABOOBACKER,PALATHURUTHYPARAMBU HOUSE, THAMMANAM,POONITHURA VILLAGE,ERNAKULAM DISTRICT. BY ADV. SRI.K.A.JALEEL SRI.C.ANILKUMAR (KALLESSERIL) SRI.N.K.POULOSEKUTTY SRI.RAFEEK. V.K. RESPONDENTS: ------------- 1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY OF GOVERNMENT,SECRETARIATE, TRIVANDRUM. 2. THE PRINCIPAL SECRETARY TO GOVERNMENT HOME DEPARTMENT,SECRETARIATE,TRIVANDRUM. 3. THE DISTRICT COLLECTOR, & DISTRICT MAGISTRATE,ERNAKULAM DISTRICT. 4. THE COMMISSIONER OF POLICE,KOCHI CITY. 5. THE SUPERINTENDENT,CENTRAL PRISON,VIYYUR 6. THE SUB INSPECTOR OF POLICE, PALARIVATTOM POLICE STATION,ERNAKULAM. GOVERNMENT PLEADER SRI. RAVINDRANATH. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 17/08/2007, THE COURT ON 07/09/2007, DELIVERED THE FOLLOWING: WP(CRL.) 153/2007 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE DETENTION ORDER DATED 11.6.2007 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER'S SON. EXT.P2 TRUE COPY OF ORDER DATED 22.9.2006 IN B.A. 5389/2006 IN CRIME 435/2006 OF CHENGAMANAD POLICE STATION, ON THE FILE OF THIS COURT. RESPONDENTS' EXHIBITS: ANNEXURE A: A TRUE COPY OF THE JAIL ADMISSION AUTHORIZATION DATED 11.6.2007 ISSUED TO THE 5TH RESPONDENT BY THE DISTRICT COLLECTOR. ANNEXURE B: A TRUE COPY OF THE ORDER NO. 42198/SSA4/2007/ HOME DATED 19.6.2007 ISSUED BY THE HOME DEPARTMENT. ANNEXURE A1: A TRUE COPY OF THE DETENTION ORDER WITH THE ENDORSEENT BY THE PETITIONER'S SON ON THE BACK OF THE ORDER. ANNEXURE A2: A TRUE COPY OF THE CERTIFICATE ISSUED BY THE HEAD MASTER, ST. RITAS HIGH SCHOOL, PONURUNNI. ANNEXURE A3: A TRUE COPY OF THE ORDER ISSUED BY THE GOVERNMENT EXTENDING THE DETENTION PERIOD. ANNEXURE R3(a) TRUE COPY OF THE MEMO FOR EXECUTING ORDER NO. M7. 26662/07 (8) DATED 11.6.2007 OF THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE, ERNAKULAM. ANNEXURE R3(b) TRUE COPY OF JAIL ADMISSION AUTHORIZATION NO. M7.26662/07(8) DATED 11.6.2007 OF THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE, ERNAKULAM. ANNEXURE R3(c) TRUE COPY OF THE GOVERNMENT ORDER NO. G.O. 42198/SSA4/2007/HOME DATED 19.6.2007. // TRUE COPY // P.S. TO JUDGE. P.R. RAMAN & K. HEMA, JJ. = = = = = = = = = = = = = == W.P.(CRL) NOS. 153 OF 2007 = = = = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE 7TH DAY OF SEPTEMBER, 2007. J U D G M E N T Raman, J. Petitioner is the father of Shaji, who is alleged to be illegally detained by the respondents under the provisions of the Kerala Anti-social Activities (Prevention) Ordinance, 2007 (hereinafter referred to as 'the Ordinance'), pursuant to Ext.P1 detention order dated 11.6.2007, issued by the third respondent, who is the Authorised Officer appointed under Section 3(1) and (2) of the said Ordinance. Petitioner seeks to quash Ext.P1 detention order by issuance of a writ of certiorari and for issuance of a writ of Habeas Corpus directing the respondents to produce the body corpus of his son Shaji before this Court and to set him at liberty. 2. Ext.P1 order of detention issued by the District Collector and District Magistrate in exercise of his powers under Section 3(1) and (2) of the ordinance. The said order is stated to have been issued based on credible information received from the Station House officer of Palarivattam Police Station vide its FIR. No. 372/2007 dated 10.6.2007 through the WPCR 153/07 :2: Commissioner of Police, Kochi City against Shaji. The substancne of the information received is that the said Shaji is involved in and around 19 criminal cases including attempt to murder, hurt, Arms Act etc. He has also been booked under the preventive provisions of Code of Criminal procedure, four times in the pas and he is a known rowdy as defined in the KAAPO, 2007. Confidential information suggests that many antisocial activities take place under his guidance and protection and that he and his gang are very active and likely to commit serious offences in the immediate future. The detaining authority evaluated the aforesaid information in the context of the circumstances pertaining to public safety and orders in Kochi City and after considering the facts reported with regard to Shaji, the authority satisfied that Shaji is a known rowdy and if he remains at large, he would indulge in antisocial activities with regard to Kochi City which would directly or indirectly cause harm, danger or alarm or a feeling if insecurity or cause threat to public life among the general public or residents of Kochi City or result in grave or widespread danger to life in the said area. Therefore, with a view to prevent him from acting in such a manner as aforesaid, the detaining authority ordered, in exercise of the powers under Section 3(1) and 3(2) of the Ordinance to place Shaji under detention with immediate effect for a period of ten days at Viyyur Central WPCR 153/07 :3: Jail. The grounds forming the basis of the order is also attached separately which is produced as Ext.P1(2). The Government, by Ext. R3(c) order dated 19.6.2007, after examining the detention order and connected documents received from the District Magistrate, Ernakulam, having convinced that Shaji is a known rowdy and if he is allowed to continue his activities, it will cause danger, alarm and a feeling of insecurity among the public. Accordingly, his detention was found justified and considering the gravity of his criminal activities, it was found that his detention for only ten days as ordered by the District Magistrate is insufficient to serve the purpose of detention envisaged in the Ordinance and hence exercising the power under Section 13(1) of the Ordinance, Government modified the period of detention as six months from the date of detention and confirmed the detention order as modified under Section 3(3) of the Ordinance. 3. According to the petitioner, the detention order Ext.P1 is unsustainable in law and the illegal custody and confinement of his son is an infringement of the fundamental rights guaranteed to him under Articles 14, 19(1)(d), 21 and 22 (5) of the Constitution of India. It is alleged that the detention order is void ab initio since the documents which form its basis is not served on the detenue, along with the grounds of detention resulting in depriving him the opportunity to make effective representation before WPCR 153/07 :4: proper authority as provided by the Ordinance. Further, the language of the order is in English which is unknown to the detenue. It is his case that the third respondent ought to have issued the order of detention in the Regional Language of the detenue ie. in Malayalam. According to the petitioner, his son is not involved in any anti social activities as defined under Section 2 (a) of the Ordinance nor is he a known gunda or a known rowdy within the meaning of Section 2(o) or 2(p) of the Ordinance. According to the petitioner, Ext.P1 order was passed without proper application of mind, the grounds of detention were not given with sufficient elaboration regarding the crime numbers and the third respondent has proceeded in a mechanical way and so the order is vitiated because of non application of mind. It is further alleged that the detenue was not appraised of his right to represent to the Government and before the Advisory Board against his arrest and detention and Ext.P1 order was not confirmed by the Government as provided under Section 3(3) of the Ordinance. It is his further case that the detenue was on bail in all the cases mentioned in Ext.P1 order and therefore, the detaining authority has to necessarily rely upon them before passing detention order. Since the factum of the bail order in all the cases were suppressed by the police authorities from the third respondent, who is the authorised officer, Ext.p1 order is bad in law and is liable to be set aside. WPCR 153/07 :5: 4. Referring to Ext.P2 bail order dated 22.9.2006in B.A. 5389/2006 (Crime No. 435/06 of Chengamanad Police Station) it is alleged that non consideration of the said order by the detaining authority has vitiated the order Ext.P1. Learned counsel appearing for the petitioner also sought to place reliance on the observations contained in the order of bail Ext.P2 and contended that the submission of the counsel appearing for the detenue in the said case was that he has changed and fully reformed and this Court had therefore, inclined to give him an opportunity so that he may not be continuously put into the group of persons with whom he had acquaintance or connected activities.] in future. 5. In the counter affidavit filed by the third respondent, besides denying the allegations contained in the writ petition, it is also stated that credible information was received from the Station House Officer, Palarivattom Police Station through the Commissioner of Police, Kochi City, against Sri. Shaji, vide FIR No. 372/2007 which contained information about his involvement in ten criminal cases registered in Ernakulam Town North Police Station. In para 3 of the counter affidavit, it is averred as follows: "The said report contained information about the involvement of Sri. Shaji @ Thammanam Shaji in 10 criminal cases registered in Ernakulam Town North Police Station . (Cr. 177/92 u/s. 143, 147, 148, 427, 323, 324, 307 Cr.PC r/w. WPCR 153/07 :6: 149 IPC, Cr.120/92, u/s. 341, 427, 324 Cr.P.C. r/w 34 IPC, Cr. 219/93 u/s. 143, 147, 341, 323, 448 Cr.PC r/w 149 IPC, Cr. 155/94 u/s. 143, 147, 148, 324, 323, 307 Cr.PC r/w 149 IPC, CR 198/95 u/s. 107 CrPC, CR 364/00 under S. 452, 323, 506 (1) Cr.P.C. and 34 IPC, CR. 178/01 u/s. 110(e)(g) Cr.P.C., CR 9/01 u/s. 27 of Arms Act, CR 190/02 u/s. 395 IPC, CR 432/04, u/s. 109, 450 Cr.P.C. r/w 395 IPC, 5 Criminal cases registered at Kalamassery Police Station (CR 294/93, u/s. 143, 147, 447, 506 (ii), 341, 323, 427 Cr.PC. r/w. 149 IPC, CR 105/94 u/s. 107 Cr.PC., CR 114/94 u/s. 27 of the Arms Act, CR 102/95 u/s. 341, 323, 324 Cr.PC, 34 IPC, C.R. 160/99 u/s. 143, 147, 148, 341, 324, 307 Cr.P.C. r/w. 149 IPC) 2 cases registered at Palarivattom Police Station (CR. 13/93 u/s. 341, 323, 324 Cr.P.C. r/w. 34 IPC, CR 62/04 u/s. 451, 341, 324, 427 Cr.PC, r/w 506 (i) IPC, 1 case registered at Ernakulam Town South Police Station (CR 125/96 u/s. 27 of Arms Act) and 1 case registered at Chengamanad Police Station (Cr. 435/06 u/s. 419, 468, 471, 12 (1 b & d) of Passport Act, spanning the period from 1992 to 2006. The offence relating to the said cases include attempt to murder, unlawful assembly, rioting, causing hurt by dangerous weapons, criminal intimidation, offences under Arms Act etc. Security proceedings were initiated four times against Sri. Shaji @ Thammanam Shaji, u/ss. 107 & 110 of the Code of Criminal Procedure." 6. It is further stated that the Commissioner of Police, Kochi City, as per his report dated 10.6.2007, reported that Sri. Shaji is currently involved in activities prejudicial to the maintenance of public order, that he is a known rowdy as defined in the Ordinance, that he is presently functioning as a goonda leader with many anti socials in the gang under him and he is very active and many antisocial activities occurring in the area is under his guidance and protection though he is physically not present on WPCR 153/07 :7: the ground and that he works through intimidation and coercion to settle various financial transactions and has a hold in the land and the building mafia in Kochi City. According to the third respondent, after examining and evaluating the said reports including the preliminary report of the Circle Inspector of Police, Ernakulam Town, forwarded along with the report dated 10.6.2007 of the Commissioner of Police, Ernakulam and the connected records of the cases, he was satisfied that Sri. Shaji is a known rowdy as specified in the Ordinance and that if he remains at large, he would indulge in anti-social activities with regard to Kochi City which would directly or indirectly cause harm, danger or alarm or a feeling of insecurity or cause threat to public life among the general public or residents of Kochi city or in grave or widespread danger to life in that area and hence he issued Ext.P1 order of detention against the petitioner's son in exercise of the powers conferred on him under Section 3(1) and 3(2) of the Ordinance. It is further stated that the Commissioner of Police, Kochi was directed to take Shaji into custody and to transfer him to central Jail, Viyyur and to comply with all the procedures prescribed for effecting arrests such as serving copies of detention order and grounds to the detenue. Annexuure R3(a) is the memo issued for executing the detention order. The fact of his arrest was also reported to the Principal Secretary to Government, Home Department and WPCR 153/07 :8: Director General of Police, Kerala, along with the copy of the order and supporting materials on 12.6.2007. The Government, as per their order No. G.O. 42198/SSA4/2007 Home dated 19.6.2007 confirmed the order of detention modifying the period of detention to six months from the date of detention. Ext.R3(c) is the confirmation order passed by the Government, in this regard. In the counter affidavit fled by the third respondent, it is stated that there are very definite confidential informations that Shaji is very active and is presently working as a goonda leader and that he has been booked under the preventive sections of the Code of Criminal procedure, four times in the past which itself is indicative of the fact that he has shown no tendency to correct himself and to live as a law abiding person. The confidential information from the locality suggests that the gang working under the detenue is likely to commit serious offences which would endanger the peace and tranquility of the area and would be a threat to the public at large, necessitating issuance of an order of preventive detention against him. 7. The 4th respondent Commissioner of Police, in a separate statement filed in the case, stated that the petitioner's son is one of the most notorious antisocials of Kochi City with proved involvement in numerous criminal cases. It was after careful evaluation and study of his past records WPCR 153/07 :9: and present activity as envisaged under the Ordinance that the authorized officer has passed the detention order, Ext.P1 produced in te case. In para 4 of the statement, it is stated that the detenue was served with the detention order with the grounds of detention and acknowledgment to this effect was also taken on the document itself. As against the averment of the petitioner that his son, the detenue is not knowing English language, the 4th respondent has stated that the officer, who served the detention order and the grounds of detention, had read over the same to the detenue and explained the contents of the same in Malayalam to him and the detenue had signed the endorsement to that effect on the back of the detention order as is evident from Annexure A1, which is the back page of grounds of detention. It is seen from the original, which contains a certification by the Sub Inspector of Police, who arrested the detenue to the effect that the Officer had read over the detention order to the detenue and served him a copy of the same along with the ground for detention and has acknowledged that he has understood the same. The detenue has acknowledged receipt of the copy of the detention order and grounds of detention and put his signature which is in English. There is a further certification that the Officer had informed the detenue in writing of his right to represent to the Government and before the Advisory board against the WPCR 153/07 :10: arrest and a separate acknowledgment to the said certification was taken from the detenue. Thus, Annexure A1 contains four parts - certification of arrest and certification of order of detention along with the grounds thereon, acknowledgment of the same by the detenue, certification to the effect that the Officer had informed the detenue about his right to represent the matter to the Government and to the Advisory Board and acknowledgment thereto signed by the detenue. Annexure A2 is produced along with the statement of the 4th respondent to show that the detenue had studied up to IXth standard. It is stated that in one of the case in which the detenue is an accused is a case in which he had made plans to visit foreign country through a forged passport which would prove that he is well versed in English. 8. The 5th respondent, the Superintendent of Central Prison, Viyyur, in his statement has submitted that Shaji was admitted in the Central Prison on 12.6.2007 based on the order issued by the District Collector on 11.6.2007 and the Jail Admission Authorization issued by the District Collector is Annexure A. The subsequent confirmation order passed by the Government is produced as Annexure B. 9. In the reply affidavit filed by the petitioner, he has denied the averments made by the respondents in their counter affidavit. It is his case WPCR 153/07 :11: that the detaining authority is bound on the act of the Station House Officer. According to the petitioner, in order to attract Section 2(p) of the ordinance there shall be at least three convictions by a competent court of law and three other criminal cases on complaints initiated by persons other than police officers which is not satisfied in this case. He has also denied the allegation that his son is presently functioning as a goonda leader with many anti socials in the gang under him and according to him, only one case is registered against his son after 2002. According to the petitioner, the detaining authority has acted in a mala fide manner under the influence of the police officers without any bona fides and in violation of the constitutional and statutory rights of the detenue and without proper application of mind. 10. We have heard the arguments of Sri. K.A. Jaleel, the learned counsel appearing on behalf of the petitioner and the Special Government Pleader Sri. K.K. Raveendranath appearing on behalf of the State. It is the contention of the learned counsel appearing for the petitioner that Ext.P1 order is per se illegal and ab initio void for the reason that all the relevant documents are not issued to the detenue. According to him, the detenue was not informed of his right to represent before the Government and the Advisory Board and the detenue will not satisfy the definition of the term WPCR 153/07 :12: "known rowdy" as defined in the Ordinance. It is his further case that the order of detention passed by the detaining authority cannot be based on information furnished by the Station House Officer as per the provisions of the Act. It is also his case that Ext.P2 bail order issued y this Court in a recent case was not placed before the detaining authority and as such, the detaining authority had no occasion to form an opinion based on the said order and to say whether preventive detention is required to be made . According to him, the detenue has informed and this Court, in the bail order, has given an opportunity to him, which fact, if placed on record before the detaining authority, it would not have perhapses ordered his detention. Per contra, it is contended by the learned Government Pleader that petitioner's son satisfies the term "known rowdy" as defined in the Ordinance and that all procedural formalities have been complied with as required by law and there is no infirmity in whatsoever the nature in this regard. The file will disclose that it is on the information from the Commissioner of Police, who is the sponsoring authority and after considering the report and various other factors made mention of in the report and after evaluating such matters by the detaining authority independently and after applying his mind, that he had exercised the power under Section 3(1) and 3(2) of the Ordinance in ordering detention of the WPCR 153/07 :13: petitioner's son which was confirmed by the Government. He also placed reliance on the certification made by the officer who arrested the petitioner's son pursuant to Ext.P1 order and the acknowledgment given by the detenue to contend that the detenue was served with the order of detention and the grounds thereon. Further, the petitioner had the copies of the FIRs in the various criminal cases in which the petitioner's son is an accused, some of which are pending trial, served on him as contemplated under the Code of Criminal Procedure. The detenue, at no point of time, did ask for any further details, if he had no such documents in his possession or even represented to the Government in this regard. He was also informed of his right to make a represention to the Government as well as to the Advisory Board which fact is also acknowledged by him in writing. Hence there is no basis for the allegation that there is any procedural irregularity as contended by the counsel appearing for the petitioner. 11. We shall now deal with the contention as raised by the parties. It is the contention of the petitioner that the documents which form the basis of the order of detention is not served on the detenue along with the grounds of detention, as a result of which, he is deprived of the opportunity to make an effective representation before the appropriate authority. It is WPCR 153/07 :14: also contended that the language of the order is in English, which is not known to him. On the other hand, the respondent would submit that the order of detention, along with its grounds were served on the detenue and his acknowledgment was also taken. It is also stated that the order of detention and the grounds were read over to him and explained the contents of the same in Malayalam. Annexure A1 produced along with the statement of the 4th respondent is the order of detention along with its grounds. Annexure A1(3) is the true copy of the certification made by the Sub Inspector of Police, who served the same on the detenue to the effect that the same was served on him. The same has been acknowledged by the detenue. Further, there is yet another certification that he had been told that he has got a right to represent before the Government or before the Advisory Board, to which also a separate acknowledgment was received beneath the portion of the certification. The signature put in by the detenue is in English. Ext.A2 would show that the detenue has studied up to Standard IX. In the counter affidavit filed on behalf of the third respondent, it is specifically averred that as reported y the police officer who served the detention order on the detenue, at the time of serving the detention order, the detenue was informed that he can make a representation before the Government and also to the Advisory Board as provided for under Section 7 WPCR 153/07 :15: (1) of the Ordinance Act, which was acknowledged by him. We have already referred to the acknowledgment Annexure A1(3) in this regard. It is further averred that at the time of service of the order, the contents of the same and the ground of detention served along with it were read over and explained to the detenue in Malayalam which was acknowledged by the detenue on its backside. But the certification portion which is already referred to by us, however, does not indicate that the detention order and the grounds were explained in Malayalam. But the certification do show that the same was read over to the detenue and that he understood the same and