IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 18TH DECEMBER 2009 / 27TH AGRAHAYANA 1931 WP(Crl.).No. 396 of 2009(S) --------------------------- PETITIONER(S): --------------- RAMLA, W/O. YAHIA, KODIYANTHE PURAKKAL HOUSE, OTTUMPURAM, TANUR, MALAPPURAM DIST. BY ADV. SRI.K.P.SUDHEER SMT.P.JAYALAKSHMI RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY ADDITIONAL CHIEF SECRETRY, DEPARTMENT OF HOME, THIRUVANANTHAPURAM. 2. DIST. COLLECTOR, MALAPPURAM. 3. SUPERINTENDENT OF POLICE, MALAPPURAM. 4. CIRCLE INSPECTOR OF POLICE TANUR POLICE STATION, TANUR, MALAPPURAM DIST. 5. THE SUPERINTENDENT CENTRAL PRISON, VIYYUR. GOVERNMENT PLEADER SRI.P.RAVINDRANATH THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 18/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * W.P.(Crl).No.396 of 2009 ---------------------------------------- Dated this the 18th day of December 2009 J U D G M E N T Basant,J The petitioner has come to this court with this petition for issue of a writ of habeas corpus to direct the production of her husband Yahia (hereinafter referred to as the detenu) who is detained under Ext.P1 order dated 10/08/2009 passed by the 2nd respondent under the provisions of Section 3 of the Kerala Anti- Social Activities (Prevention) Act (hereinafter referred to as the KAAPA). 2. The detenu is involved in three cases, the details of which are given below: sl. Crime Number Date of incident Alleged Offences Date of Arrest Date of order of bail Date of filing Final report 1 621/2007 21/11/2007 457, 380 14/11/2008 15/12/2008 17/12/2008 C.C.32/2009 2 244/2008 12/06/2008 454, 380, 461 14/11/2008 15/12/2008 17/12/2008 C.C.44/2009 3 485/2008 07/11/2008 457, 380 13/11/2008 02/12/2008 17/12/2008 C.C.1191/08 3. On the basis of the above three cases, the detenu was classified as a known rowdy. Ext.P2 report was submitted by the W.P.Crl No.396/09 2 4th respondent to the 3rd respondent and the same evoked action on the part of the 3rd respondent. The 3rd respondent submitted Ext.P3 report to the 2nd respondent under Section 3(1) of the KAAPA. On the basis of Ext.P3 report, the 2nd respondent, after allegedly applying his mind to all the relevant inputs, passed Ext.P1 order of detention dated 10/08/2009. The detenu was arrested and detained in execution of Ext.P1 order on 12/08/2009. Ext.P5 order of approval was passed by the Government under Section 3(3) of the KAAPA on 19/08/2009. It is submitted at the Bar that the order of confirmation under Section 10(4) of the KAAPA has already been passed by the Government. The detenu thus continues in custody under Ext.P1 order from 12/08/2009. 4. Before us, the learned counsel for the petitioner Sri.K.P.Sudheer and the learned Government Pleader Sri.P.Ravindra Babu have advanced their arguments. The learned counsel for the petitioner assails the impugned order on the following grounds: i) All the three crimes charge sheeted against the detenu are instances of false implication and the detaining authority had not applied his mind to the relevant details before passing Ext.P1. W.P.Crl No.396/09 3 ii) There is snapping of nexus between the alleged instances of crimes and the impugned order directing preventive detention in future. iii) The authorities did not at all consider the fact that there is no tangible material to indicate that the detenu was involved in any contumacious activity after the incident in crime No.3 above. iv) The representation Ext.P4 submitted by the detenu has not received a “real and proper consideration” which such representation is entitled to as explained in the latest decision in Shruthi v. State of Kerala [2009(4) KLT 893]. There has also been no proper communication of the decision on Ext.P4. 5. Ground No.1: The learned counsel for the petitioner advances an argument that all the three cases have been falsely charge sheeted against the detenu. Three crimes have been registered. Crimes in those cases were committed on 21/11/2007, 12/6/2008 and 07/11/2008 as is revealed from the tabular column give above. In all those three cases, allegations were raised inter alia under Sections 457 and 380 I.P.C. Investigation has been conducted by the police. Final reports have been filed. The investigating police official were satisfied on the basis of the investigation conducted that the detenu had W.P.Crl No.396/09 4 committed the offences alleged against him. Final reports have already been filed. 6. The learned counsel advances a contention that this conclusion of the investigating officer is not correct. He further makes a grievance that the relevant documents which accompanied the final report have not been made available to the detenu. The decision in Safiya v. State of Kerala [2009 (1) KHC 43] is authority for the proposition that copies of such documents need not be furnished. 7. The learned Government Pleader has placed before us the case diary files relating to the three cases. The investigating officer found that the detenu had committed the offences alleged against him. Under Section 2(p)(iii) of the KAAPA the satisfaction contemplated is that of the investigating officer. For entertainment of the former objective threshold satisfaction, the satisfaction of the investigating officer is sufficient. But, of course, the latter subjective satisfaction must be entertained by the detaining authority on the basis of the materials before him. If the imputations/indictments are found to be so totally and grossly unjustifiable, the detenu can certainly raise a contention that the subjective satisfaction should not have been entertained on the basis of such shobby final reports filed by the W.P.Crl No.396/09 5 investigating officer. But, in the instant case, we find absolutely nothing to conclude that the final reports are not justified. Conclusions reached by the investigating officer in the proper and due course of investigation can thus be safely reckoned to entertain both former as well as the latter satisfactions in this case. We do not, in these circumstances, find any merit in the contention that the final reports should not have been accepted to conclude that the latter subjective satisfaction can be entertained. The challenge on the first ground, in these circumstances, fails. 8. Ground No.(ii) The learned counsel for the petitioner then contends that there is snapping of nexus between the alleged contumacious acts and the order of detention. Three contumacious acts are specifically relied on. Those are the acts of 21/11/2007, 12/6/2008 and 07/11/2008 - that is the dates of commission of offence in the three cases referred above. According to the learned counsel for the petitioner, the last of those contumacious acts had taken place on 07/11/2008. But the impugned order of detention was passed only on 10/08/2009. The learned counsel argues that there has been snapping of the nexus because of the elapse of the period from 07/11/2008 to 10/08/2009. W.P.Crl No.396/09 6 9. It is true that the acts alleged were on 21/11/2007, 12/6/2008 and 07/11/2008. But the crimes registered reveal that the complainant and the police, at that point of time, had no clue about the identity of the offender. The detenu happened to be arrested on 13/11/2008 and it was thereafter that investigation revealed the complicity and involvement of the detenu in those three cases. He was arrested in the three crimes on 13/11/2009, 14/11/2009 and 14/11/2009. After completion of investigation, final reports were filed only on 17/12/2008. The need for preventive detention was perceived later and the 4th respondent initiated proceedings vide Ext.P2 report dated 02/07/2009. It was followed up by Ext.P3 reports dated 30/7/2009 of the Superintendent of Police - the 3rd respondent and that culminated in the impugned order of detention dated 10/8/2009. It is true that there has been a gap of time from 17/12/2008, the date of filing of the final report to 10/08/2009, the date of the impugned order. It has often been held that the question whether there has been snapping of the nexus cannot be resolved by resort to the simple exercise of counting the number of days between the last contumacious act and the order of detention. Totality of circumstances will have to be taken into account. The nature of the offences alleged will have to be taken W.P.Crl No.396/09 7 into consideration. The frequency with which acts were committed earlier will have to be taken into consideration. So reckoned, we are unable to agree that the gap of time between 17/12/2008, the date of filing of the final report in all the three cases and 10/8/2009 the date of the impugned order is sufficient to persuade us to hold that there has been a snapping of nexus. The challenge on the second ground must therefore fail. 10. Ground No.(iii): The learned counsel for the petitioner contends that the authorities were conscious of the fact that there was a gap of time between 17/12/2008 and 10/8/2009. They attempted to cover up this gap by making allegations in Exts.P2 and P3 reports that subsequent objectionable conducts were there on the part of the detenu. There is no material to show any such objectionable and contumacious conduct after 17/12/2008 and before 10/08/2009. The reference made in Exts.P2, P3 and later in Ext.P1 to such alleged contumacious and objectionable acts during the interregnum period is not justified by any documents, contends the learned counsel for the petitioner. We shall, for a moment, for the sake of arguments, accept that the said allegation about what transpired after 17/12/2008 before 10/08/2009 were relied on by the detaining authority. We accept that except the W.P.Crl No.396/09 8 subjective opinion expressed by respondents 4 and 3 in Exts.P2 and P3 respectively, there is no other tangible material to show that the detenu had indulged in any such activity. Even if that part of the allegations were excluded, altogether, under Section 7(3) of the KAAPA we are satisfied that the surviving allegations of involvement in the three cases are sufficient to establish the nexus between the contumacious act referred to in cases 1 to 3 and the impugned order of detention. The challenge on that 3rd ground must also hence fail. 11. Ground No.iv Ext.P4 representation was submitted by the detenu to the Government. That representation is dated 08/09/2009. The fate of that representation was conveyed under Ext.P6. Ext.P6 is a communication addressed to the detenu by the Additional Chief Secretary who, under the rules of business of the Government, is competent to exercise the function of the Government to consider the representation under Article 22(5) of the Constitution of India and Section 7(2) of the KAAPA. It is, of course, true that the said letter is signed not by the Additional Chief Secretary; but by a subordinate office on his behalf. The question is not whether the Additional Chief Secretary signed the communication/order or not. The order on Ext.P4 representation, it must be held, was effectively communicated to W.P.Crl No.396/09 9 the detenu by the Additional Chief Secretary under Ext.P6 though the signature in Ext.P6 is not that of the Additional Chief Secretary; but of a subordinate office. The learned counsel thus contends that Ext.P6 must convey to the court that Ext.P4 representation did not receive a real and proper consideration which it is entitled to. We have adverted to the law on the question in detail in Shruthi (Supra). It is now well established that there need be no hearing before a representation under Article 22(5) of the Constitution of India and Section 7(2) of the KAAPA is considered. A speaking order is not necessary. Disclosure of reasons is also not necessary; but all the same as held in Shruthi (Supra) it must be shown that the representation had received a real and proper consideration. 12. The nature of the representation assumes significance and importance in this context. We have gone through Ext.P4. Except a bare dispute that indictments are not justified, virtually we find no other worthwhile point raised for consideration in Ext.P4. The nature of the consideration undoubtedly must depend upon the nature of the representation. We have gone through Ext.P4. We have gone through Ext.P6. In the nature of contentions raised in Ext.P4, we are unable to accept the contention that Ext.P6 does not reveal a real and proper W.P.Crl No.396/09 10 consideration. Of course, we are dissatisfied with Ext.P6 communication. The learned counsel for the petitioner is justified in his contention that Ext.P6 can be made use of by the Government to reject any representation made by any detenu in any case whatever be the nature of the representation. The dissatisfaction on that score notwithstanding, we are unable to agree that Ext.P4 did deserve any more speaking order than Ext.P6 to satisfy the court that it had received a real and proper consideration. The challenge raised on Ground No.iv) must also, in these circumstances, fail. 13. No other contentions are raised. We are satisfied that the challenge cannot be accepted. 14. In the result, this writ petition is dismissed. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr W.P.Crl No.396/09 11 W.P.Crl No.396/09 12 R.BASANT & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 29/07/2009