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 18TH JANUARY 2011 / 28TH POUSHA 1932 WP(Crl.).No. 451 of 2010(S) ---------------------------------------------- PETITIONER(S): -------------------- SAID MOHAMMED.K., S/O.MOHAMMED, AGED 57 YEARS, KOLAKADA HOUSE, KUNTHIPUZHA, MANNARKKAD, PALAKKAD, PIN-678 553. BY ADV. SRI.O.V.MANIPRASAD SRI.SAJU J PANICKER SRI.LIJO KURIAN JOSE RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY, HOME AFFAIRS DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 695 001. 2. THE DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, PALAKKAD. 678 001. 3. THE DISTRICT SUPERINTENDENT OF POLICE, PALAKKAD. 678 001. 4. THE SUB INSPECTOR OF POLICE, MANNARKKAD POLICE STATION, MANNARKKAD. 678 582. 5. THE SUPERINTENDENT OF CENTRAL PRISON, VIYOOR, THRISSUR. 680 609. W.P.(CRL).NO.451 OF 2010 S 6. M.KRISHNAN, SUB INSPECTOR OF POLICE (FORMERLY AT MANNARKKAD POLICE STATION), C/O.SUPERINTENDENT OF POLICE, PALAKKAD. BY DIRECTOR GENERAL OF PROSECUTION SHRI K.K. RAVEENDRA NATH. SENIOR GOVERNMENT PLEADER SHRI P. RAVINDRA BABU. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 18/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(CRL).NO.451 OF 2010 S PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE DETENTION ORDER NO.S1/2010/47693/9 DATED 13.8.2010 OF THE 2ND RESPONDENT. EXT.P2 TRUE COPY OF THE GROUNDS OF DETENTION IN ENGLISH. EXT.P3 TRUE COPY OF THE REPORT DATED 13.8.2010 OF THE 3RD RESPONDENT. EXT.P4 TRUE COPY OF THE PRELIMINARY REPORT MADE BY THE 4TH RESPONDENT ON 11.8.2010. EXT.P5 TRUE COPY OF THE F.I.R. NO.556/2010 OF MANNARKKAD P.S. EXT.P6 TRUE COPY OF THE REPORT DATED 13.5.2008 OF THE 3RD RESPONDENT. EXT.P7 TRUE COPY OF THE F.I.R. AND FI STATEMENT IN CRIME NO.531/2010 OF MANNARKKAD POLICE STATION. EXT.P8 TRUE COPY OF THE REPORT SUBMITTED BY THE 6TH RESPONDENT BEFORE THE JFCM-1, MANNARKKAD. EXT.P9 TRUE COPY OF THE CHARGE SHEET DATED 06.8.2010 IN CRIME NO.531/2010 OF MANNARKKAD POLICE STATION. EXT.P10 TRUE COPY OF THE REPRESENTATION DATED 28.9.2010 TO THE GOVERNMENT. EXT.P11 TRUE COPY OF THE REPRESENTATION DATED 28.9.2010 TO THE ADVISORY BOARD. EXT.P12 TRUE COPY OF THE INTIMATION DATED 30.10.2010 BY THE DEPUTY SECRETARY TO THE FIRST RESPONDENT. EXT.P13 TRUE COPY OF THE ORDER NO.G.O.(RT).NO.3218/10/HOME DATED 21.10.2010 OF THE FIRST RESPONDENT. RESPONDENTS' EXHIBITS: EXT.R1(A) TRUE COPY OF GOVERNMENT LETTER NO.64441/SS A5/2010/HOME DATED 13.10.2010 DULY ACKNOWLEDGED BY THE DETENU. EXT.R3(A) TRUE COPY OF THE REPORT OF THE SUPDT. OF POLICE DATED 13.08.2010 ACKNOWLEDGED BY THE DETENU. EXT.R3(B) TRUE COPY OF THE PRELIMINARY REPORT OF THE SUB INSPECTOR OF POLICE, DATED 11.8.2010. EXT.R3(C) TRUE COPY OF THE ORDER OF DETENTION ACKNOWLEDGED BY THE DETENU. EXT.R3(D) TRUE COPY OF THE MALAYALAM VERSION OF THE GROUNDS OF DETENTION. // TRUE COPY// PS TO JUDGE. K.M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. ----------------------------------------- W.P.(CRL).NO. 451 OF 2010 S ------------------------------------------ Dated this the 18th January, 2011 JUDGMENT K.M. Joseph, J. The petitioner has approached this Court being aggrieved by the illegal detention of his son, Mohammad Afsal @ Afsal (hereinafter referred as the detenu) pursuant to the order of detention passed under the provisions of Kerala Anti - Social Activities (Prevention) Act, 2007 (hereinafter referred to as the Act). Accordingly he seeks a writ of habeas corpus directing the respondent to produce the person of the detenu and to set him at liberty forthwith and to declare that Ext.P1 order of detention is illegal and vitiated. 2. We heard the learned senior counsel for the petitioner, Sri. WP(CRL).NO.451/2010 S 2 O. V. Maniprasad and the learned Senior Government Pleader Sri. P. Raveendra Babu. 3. Learned counsel for the petitioner would address before us the following contentions: In the first place he would submit that the order of detention is vitiated by non application of mind. He enlists the following facts in support of his contention: The order of detention is passed on 13.8.2010. A case is registered under the provisions of the Act by the Sub Inspector of Police on 13.8.2010 at 12.06 hrs at Mannarkkad, Palakkad district. He sent a report proposing for taking action under the Act against the detenu on 13.8.2010. On the very same day the Superintendent of Police, Palakkad sent his report to the District Magistrate and again on the very same day, i.e., on 13.8.2010 the District Magistrate, Palakkad has passed the impugned order of detention. The learned counsel would submit that it is clear that the authority WP(CRL).NO.451/2010 S 3 concerned has not acted as expected and the non application of mind vitiated the proceedings. He further canvasses before us that the requirement of law is not satisfied in so far as this is a case where sponsoring authority namely, the Superintendent of Police, Palakkad, has himself prepared the grounds of detention as is clear from Ext.P3. The enclosures accompanying the report of the sponsoring authority would clearly show that he had prepared the grounds of detention and the District Magistrate has abdicated his duty and the duty was performed by an outside agency, namely, the Superintendent of Police. In other words, a valid detention under the Act contemplates that the detaining authority must apply his mind and come to the conclusion that the detention is warranted and crucial criterion for deciding the question is whether the detaining authority has framed the grounds for detention. This is a case where the grounds of detention was settled by some other authority and also having regard to the facts as mentioned above, the entire matter is rushed through in the space of a few hours of a WP(CRL).NO.451/2010 S 4 single day and the order of detention is issued in a hasty manner. This is the first contention. 4. Secondly, the learned counsel for the petitioner Sri. Maniprasad would point out that the documents were supplied in a language with which the detenue was unfamiliar. According to him, the detenu does not know to read English. Yet, the following documents were supplied to him in English: (i) Ext.P3 report of the sponsoring authority. (ii) The preliminary report of the Sub Inspector of Police. (iii) The order of detention. (iv) Ext.P6 which was the report of Superintendent of Police recommending action under the same Act on an earlier occasion against the detenu. He would submit that there are certain other documents with respect to which he does not press similar argument. 5. Thirdly he would contend that the order of detention is vitiated by malafides. He would submit that the 6th respondent is imleaded in his personal capacity in this Court. According to him, WP(CRL).NO.451/2010 S 5 the crime was registered as crime No.797 of 2006 wherein the sixth respondent was involved. He would submit that it is at the instance of the very same Officer that the order of detention was passed. 6. Lastly, the learned counsel for the petitioner would contend that Article 22 of the Constitution, as also Section 7 of the Act create a right in favour of the detenu to represent against the detention both before the Advisory Board and also before the Government. He would submit that representation was indeed given by the petitioner to the Advisory Board. According to him, the Advisory Board has not considered his representation. He would further contend that there is also duty on the part of the Advisory board to communicate the decision taken on the representation. He would submit that in this case the decision on the representation was not communicated. He relies on Secs.7(2), 9 and 10 of the Act, in support of his contention that there is a right to the detenu to represent and a duty on the part of the Advisory WP(CRL).NO.451/2010 S 6 Board to really consider the representation and also a duty to communicate its decision. 7. Per contra, the learned Senior Government Pleader, Shri P. Raveendra Babu would submit that there was no undue haste or non-application of mind. He would point out that in fact the background of the case may not be overlooked. According to him, the detenu was involved in as many as nine cases earlier. He would contend that when there was an attempt made to detain him under the Act pursuant to Ext.P6 proposal, the detenu absconded and went abroad. He would point out that in the circumstances of the case and in particular, in view of the fact that the detenu came to be involved in Crime No.531/2010 which took place on 2.8.2010, there is no merit in the contention of the petitioner that the detention order is the result of undue haste and non-application of mind. He would further submit that there is nothing wrong if the grounds of detention were prepared by the Superintendent of WP(CRL).NO.451/2010 S 7 Police. All that Section 3 of the Act insists is that there must be material forthcoming from the designated Statutory Authority on the basis of which it is open to the detaining authority to form the requisite opinion. No doubt, both the objective and subjective criteria must be satisfied. In this case, he would submit that the detenu going by the cases which have been referred in the order of detention, can objectively be clearly classified as a known rowdy under Section 2(p) of the Act. He would submit that, in such circumstances, there can be no merit in the contention of the petitioner that the detenu was not liable to be detained. As far as subjective satisfaction for the need to detain is concerned, he would submit that, that is beyond the pale of judicial review as held in many decisions of this Court. The mere fact that the Police Officers and the Detaining Authority acted with promptitude in the facts of this particular case, which otherwise warrants the detention of the detanu should not persuade this Court to interfere with the otherwise valid order of detention, he contends. He would submit WP(CRL).NO.451/2010 S 8 that the detaining authority has also taken note of the fact that though the detenu was in custody in connection with Crime No.531/2010, there was a real possibility of the detenu securing bail and in fact, he secured bail and he came to be arrested on 17.8.2010 after he was released on bail. 8. As far as the contention based on the non-supply of the relevant documents in a language with which the detenu is familiar which, in this case is Malayalam, he would submit as follows: He would submit that the grounds of detention was supplied to the detenu and the grounds of detention was couched in the Malayalam language. When the grounds of detention have been supplied to the detenu, he would pose the question as to how the detenu could be prejudiced by the non-supply of the Report of the Superintendent of Police under Section 3, the preliminary report of the Sub Inspector of Police, Ext.P6 Report of the Superintendent of Police recommending detention on an earlier occasion, and the order of detention. He would point out that essentially whatever is WP(CRL).NO.451/2010 S 9 contained in the order of detention is also contained in the grounds of detention. In the same way, he would point out that substance of whatever is contained in the grounds of detention is also contained in the preliminary report of the Sub Inspector of Police and also in the proposal of the Superintendent of Police under Section 3. He would also point out that the order of detention was in fact read over to the detenu in Malayalam. He would also rely on certain decisions to which we will make a reference later on. 9. As far as malafides is concerned, it is submitted that no case has been made out by the petitioner for establishing malafides. He would point out that the action of the sixth respondent was occasioned only by his involvement in the first case and it is too much to contend that the order of detention has been passed at the instigation of the sixth respondent. He would submit that a plea of malafides must be established with full particulars, in the matter of pleading and also by proving the same. He would point out that there is no such case made out. WP(CRL).NO.451/2010 S 10 10. As far as the question of non-consideration of the representation by the Advisory Board is concerned, he would address the following submissions before us: Undoubtedly, under Section 7(2) of the Act, there is a duty on the part of the detaining authority to alert the detenu of the right to make a representation to the Advisory Board and to the Government. He would then point out that under Section 9, a reference has to be made to the Advisory Board in every case where a detention order is made within three weeks. Further, the procedure to be adopted by the Advisory Board in the Act is contained in Section 10. Under Section 10, when the matter comes up before the Advisory Board, necessarily, the Advisory Board must consider any representation which has been made along with the reference. The Advisory Board must form an opinion. The opinion may be either that no case is made out for detention or the opinion may be that further detention is warranted. He would submit that detention extending beyond three months alone WP(CRL).NO.451/2010 S 11 requires the opinion of the Advisory Board which is a contention which he seeks to buttress with reference to Article 22 of the Constitution and also the provisions of the Act. More importantly, he would point out that the representation given by the detenu in this case to the Advisory Board was indeed considered and he made available to us the files to show that the representation was indeed considered. He would point out that apart from the opinion, the other portions of the Report of the Advisory Board are confidential and he would point out that the consideration of the representation by the Advisory Board and the consideration of the representation by the Government are substantially different. He would point out that representation to the Advisory Board is only contemplated at the time when the reference comes up. In other words, a representation could not be made earlier or after. In this connection, he relies on the decision of this Court in Mary Kuriakose v. State of Kerala (2011 (1) KLT 167). He would submit that in a case of an order passed under Section 3 of the Act, WP(CRL).NO.451/2010 S 12 unlike an order under Section 15, the powers of the Advisory Board are limited. Under Section 15 of the Act, it is open to the Advisory Board to modify or annul an order passed therein. No such power exists with the Advisory Board in respect of a detention order passed under Section 3. He would also submit that there is no need for any separate communication of the order by the Advisory Board. Of course, when the matter comes up in a judicial proceedings, it is always open to the Court to consider the question as to whether there was a genuine consideration of the representation by the Advisory Board. 11. We are of the view that the writ petitioner is entitled to succeed on the first two grounds taken by the petitioner and hence we do not feel it necessary to decide the question of malafides or the point that the representation of the detenu was not considered by the Advisory Board. 12. The law in question is a law relating to preventive detention. It is a jurisdiction of suspicion. Subject to the person WP(CRL).NO.451/2010 S 13 being objectively classified either as a known goonda or known rowdy on the basis of materials which is placed before the detaining authority, there is a discretionary power with the detaining authority to order the detention of a person. Needless to say, every order of detention involves the deprivation of a person's liberty. In such circumstances, it is of the highest importance that the statutory authorities who are charged with the duty to pass an order of detention that they must exercise the power hedged in with the duty to apply their mind to the material which comes up before them. The detaining authority must not only be satisfied that objectively the detenu can be treated as a known goonda or known rowdy, but he must further be satisfied that there is a genuine need to detain the person. The following are the Crimes with offences, date of occurrence, date of registration and date of charge sheet: WP(CRL).NO.451/2010 S 14 Sl.No Crime No.with Police Station Offences Date of Occurrence Date of Registratio n of Crime Date of Charge Sheet 1 Crime No.503/2003 of Mannarkkad Police Station U/ss.341, 323,324, 304 R/w 34 IPC 19.10.03 20.10.03 07/11/03 2 Crime No.49/2006 of Melattur Police Station.Transferred to Perinthalmanna Police Station & Registered as Crime No.198/2006 U/ss 120 (b), 367, 307, 326, 506 (ii), R/w 34 of IPC & Section 3, R/w 25 (i) (a) of Arms Act. 20.2.06 20.02.06at Melattoor Police Station. 19.3.06 at Perinthalma nna Police Station 26.10.09 3 Crime No.810/2006 of Mannarkkad Police Station U/s 143, 147, 148, 447, 452, 341, 323, 324, 329, 294 (b), 506 (ii) R/w 34 IPC 23.10.06 02/11/06 21.07.08 4 Crime No.399/2007 Mannarkkad Police Station U/ss.452, 294 (b), 506 (ii), 324, 427, R/w 34 IPC 21.05.07 22.05.07 30.05.07 5 Crime No.531/2010 Mannarkkad Police Station U/s 452, 341, 323, 506 (i) IPC 02/08/10 02/08/10 06.08.10 Charged U/s 452, 506 (i) IPC The first of the crimes is of the year 2003. The second crime is alleged to have been committed on 20.2.2006. The third crime is alleged to have taken place on 23.10.2006. The fourth crime allegedly took place on 21.5.2007. Thereafter, there is a gap and the last crime is alleged to have taken place on 2.8.2010. Petitioner has a case that the detenu was abroad from 8.5.2008 and he came WP(CRL).NO.451/2010 S 15 back on 13.3.2010. The petitioner has a case that the last crime was engineered at the instance of the sixth respondent. In this connection, he took us through the first information statement given by the Manager of the bar where the alleged offence was committed by the detenu. He would further submit that actually the detenu was to leave India and to go back on 2.9.2010 and it was just on the eve of his departure that the order of detention was passed at the behest of the sixth respondent. 13. The following facts cannot be disputed: The Sub Inspector of Police, Mannarkkad has sent Ext.P4 report on 13.8.2010. He has registered a crime at 12.06 PM under the Act. The matter went to the Superintendent of Police who is located at Palakkad. There is a distance of nearly forty kilometres between Mannarkkad and Palakkad. According to the version of the respondents, after the Sub Inspector of Police recommended action under the Act vide Ext.P4, the Superintendent of Police is supposed to have considered the matter on the very same day, WP(CRL).NO.451/2010 S 16 namely 13.8.2010 and decided to recommend for detention vide Ext.P3. What is more, on the very same day, the detaining authority is also alleged to have considered the matter and passed Ext.P1 order of detention on 13.8.2010. We must, in this case, consider the argument of the learned counsel for the petitioner that in the Counter Affidavit filed by the detaining authority, the detaining authority did not specifically say that the order of detention came to be passed beyond the normal working hours on 13.8.2010. No doubt, he has stated in the Counter Affidavit that depending on the emergent situation, officers work beyond normal working hours. The need for a genuine consideration at the hands of the detaining authority and even at the hands of the Superintendent of Police who makes a report, is absolutely an unavoidable legal requirement to sustain the prized freedom of liberty guaranteed under Article 21 of the Constitution. In fact, the Statute has vested the power with the State Government or any designated authority to pass an order of detention under Section 3. WP(CRL).NO.451/2010 S 17 The power is vested with a high ranking officer, namely the District Magistrate. He has to act on the basis of the information provided by the designated authority, the Superintendent of Police. The proposal usually starts with the Officer of a rank of Sub Inspector of Police. We would think that in the facts of this case, there is justification for the petitioner to impugn the order of detention on the ground of non-application of mind. We must remind ourselves that the entire process started with the report of the Sub Inspector of Police (Ext.P4) at about 12.06 hours on 13.8.2010. The matter had to reach the Superintendent of Police. He has to apply his mind. We must, in this context, consider that the stand of the Government usually is that the consideration at the hands of the Superintendent of Police as to whether a case is made out for recommending detention itself takes time. But, in this case, the Superintendent of Police has acted with speed which we find a little inexplicable. At any rate, when the matter came up before the detaining authority, certainly the detaining authority WP(CRL).NO.451/2010 S 18 must consider the issue independently. Voluminous material in the form of various documents will be before the District Magistrate in every case of proposed detention. The material relates to the crimes which are alleged in the context of the person being a known rowdy or known goonda. The law entrusts the unenviable task of deciding to deprive the liberty of a citizen with the Magistrate with the assurance that he will genuinely consider the material before him and that he will form the requisite opinion as in all cases of statutory functions with bonafides and acting reasonably. We are of the view that in the facts of this case, such a consideration does not appear to have been made by the authority. 14. We also see that there is merit in the contention of the petitioner that the document, namely Ext.P3 report of the Superintendent of Police, in particular, was not made available in Malayalam. There is no case for the respondents that the detenu was familiar with the English language. Their only defence that is WP(CRL).NO.451/2010 S 19 sought to be put up is that the detenu was supplied with the grounds of detention in Malayalam and there is no need to supply the other documents also in Malayalam. This question has engaged the attention of this Court in a few cases and we shall refer to the same. In Najmunnisa v. State of Kerala (2010 (3) KLT 334), a Bench of this Court, inter alia, held as follows: “17. In this case also, the relevant documents were all fully explained to the detenu in a language known to him at the time of arrest. But those documents were not furnished to him in a language which he could read and understand. The Supreme Court reiterated the position that it was not enough if the relevant documents were explained to the detenu in a language known to him. It was held to be imperative that the document must be made available to him in a language he can understand. 18. It is unnecessary to advert to more precedents. The position appears to be well settled that however earnestly the documents may have been read over and explained to the detenu in a language WP(CRL).NO.451/2010 S 20 known to him, it is imperative that he must be left with the document in a language and script which he can read and understand if he is literate.” Still further, a Full Bench also has considered the question in Bose v. Secretary to Government (2010 (2) KLT 325). The Court disapproved the view taken in Sathi v. State of Kerala & Ors. (W.P.(CRL).No.201 of 2009) and held as follows: “21. Admittedly, Malayalam translation of some of the documents like the report of the sponsoring authority as well as the report of his subordinate Officer had not been furnished to the detenu in Sathi's case.