IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 18TH JANUARY 2010 / 28TH POUSHA 1931 WP(Crl.).No. 532 of 2009(S) ----------------------------------------------- PETITIONER(S): ---------------------- ANIL KUMAR, F/O.ANEESH @ ANU, "MARUTHIRATHALA VEEDU", PEROORKONAM, KALLAMPALLY, ULLOOR VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.B.HARISH KUMAR SRI.Y.BOBBY JOSEPH RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, COLLECTORATE, THIRUVANANTHAPURAM. 3. THE CHAIRMAN, KERALA ANTI-SOCIAL ACTIVITIES (PREVENTION) CONTROL BOARD, SREE NIVAS, PADAM ROAD, ELAMAKKARA, COCHIN-26 4. THE DEPUTY COMMISSIONER OF POLICE(L&O) THIRUVANANTHAPURAM CITY, OFFICE OF THE BY ADDL. DGP. SHRI K.K. RAVEENDRANATH GOVERNMENT PLEADER SHRI P. RAVINDRABABU THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 18/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(CRL).NO.532 OF 2009 PETITIOER'S EXHIBITS: EXT.P1 TRUE COPY OF THE DETENTION ORDER DATED 13.8.09 PASSED BY THE 2ND RESPONDENT. EXT.P2TRUE COPY OF THE GROUNDS FOR ARREST IN MALAYALAM ISSUED TO THE PETITIONER'S SON. EXT.P3TRUE COPY OF THE REPORT OF THE SPONSORING AUTHORITY DATED 26.7.09. EXT.P4TRUE COPY OF THE FIRST INFORMATION REPORT ALONG WITH DRAFT CHARGE IN CRIME NO.146/09. EXT.P5TRUE COPY OF THE REPRESENTATION DATED NIL SUBMITTED BY THE PETITIONER'S SON. EXT.P6TRUE COPY OF THE PROCEEDING ISSUED BY THE FIRST RESPONDENT DATED 12.11.09. RESPONDENTS' EXHIBITS: EXT.R4(A) TRUE COPY OF G.O.(RT).NO.3351/2009/HOME, DATED 12.11.09. // True Copy // PS to Judge K.M.JOSEPH & P.Q.BARKATH ALI, JJ. ------------------------------------------------------ W.P.(Crl) No.532 of 2009-S ---------------------------------------------- Dated, this the 18th day of January, 2010 J U D G M E N T K.M.Joseph, J. Petitioner is the father of one Aneesh @ Anu. Petitioner challenges Exts.P1 and P6 and pray for a writ of habeas corpus commanding the respondents to produce the body of Aneesh @ Anu before this Court and to release him. Ext.P1 is the order passed by the District Magistrate, Thiruvananthapuram dated 13.8.2009. Ext.P6 is the order confirming Ext.P1. There is reference made in Ext.P1 order to Ext.P3 which is the report of the Deputy Commissioner of Police (L & O) Thiruvananthapuram City dated 26.7.2009. Thereafter, referring to four crimes the District Magistrate found that he was satisfied that the detenu is a Known Goonda as defined in Sec.2 (o) (ii) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAA(P) Act for short). It is further stated that if the detenu remains at large he would indulge in antisocial activities with regard to public peace and order which would directly or indirectly cause harm, danger or cause threat to public life and property among the general public of W.P.(Crl) 532/2009 -2- Thiruvanathapuram District as reported by the Deputy Commissioner of Police, Thiruvananthapuram City. It is also stated that the Deputy Commissioner has reported that the detenu does not have any job or avocation and no other means of livelihood and that he indulges in criminal offences and survives on the proceeds of these illegal and criminal acts. 2. We heard the learned counsel for the petitioner and learned Government Pleader. 3. The point which is raised by the learned counsel for the petitioner is that the order of detention is bad for non-application of mind and that as this is a case where the Deputy Commissioner of Police, Thiruvananthapuram in Ext.P3 report which is relied on by the detaining authority noted that the detenu is a known rowdy. He would submit that when this is the report of the authority giving information, Ext.P1 order is vitiated for the reason that the detaining authority has not applied its mind to the report as the detaining authority came to the conclusion that the detenu is a known goonda contrary to what was found by the Deputy Commissioner of Police. He would further contend that no reasons are given by the detaining authority in Ext.P1 to differ W.P.(Crl) 532/2009 -3- from the report submitted by the Deputy Commissioner of Police in Ext.P3. He would submit that the very same issue has been considered by a Bench of this Court in Shiny A. v. State of Kerala and Others (2009 (4) K H C 645 (DB). 4. Learned Government Pleader would point out that actually having regard to the definition of the word Known Goonda which in turn draws upon the definition of the word Goonda which again in turn relies on the definition of the word anti-social activity in conjunction with the explanation to the definition of the word Known Goonda the requirements of Known Goonda are satisfied in the facts of this case. In other words, he would submit that actually this is a case where the detenu is alleged to have committed offences under the Prevention of Damage to Public Property Act and in view of the explanation to Sec.2 (o) reference can be made to the other offences which are allegedly coming under Section 2 (t) admittedly, to bring him under the definition of Known Goonda. He refers to definition of anti-social activity which also takes in damage to private property besides acts constituting danger to individuals. 5. We have perused the judgment relied on by the W.P.(Crl) 532/2009 -4- learned counsel for the petitioner. We feel that the case of the petitioner appears to be covered by the said judgment. The facts remains that there is no reference to any of the aspects projected by the Magistrate in roping in the detenu under the word Known Goonda. Absolutely no reasons are given by the District Magistrate in this regard. Learned counsel for the petitioner would point out that the detenu is in custody since 5.9.2009. Having regard to the totality of the facts, we feel that it would be appropriate that we follow the judgment of the Division Bench relied on by the learned counsel for the petitioner. Accordingly, Ext.P1 and Ext.P6 are declared illegal and there will be a direction to set at liberty the detenu Aneesh @ Anu forthwith if he is not wanted in any other case. Registry will communicate the order to the Superintendent of Central Jail, Thiruvananthapuram for implementation of the judgment. (K.M.JOSEPH) JUDGE. (P.Q.BARKATH ALI) JUDGE. MS