IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 WP(Crl.).No. 383 of 2009(S) --------------------------- PETITIONER(S): --------------- NISHA RAFEEK, AGED 25, W/O.RAFEEK, MADHURA HOUSE, PERUNNA EAST KARA, CHANGANACHERRY, KOTTAYAM. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT(S): --------------- 1. DISTRICT COLLECTOR (DISTRICT MAGISTRATE) COLLECTORATE, KOTTAYAM. 2. SUPERINTENDENT OF POLICE, KOTTAYAM. 3. ADDITIONAL CHIEF SECRETARY (HOME & VIGILANCE), TRIVANDRUM. 4. STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, TRIVANDRUM. BY ADGP SRI. K.K. RAVEENDRANATH & GOVERNMENT PLEADER SRI. P. RAVINDRA BABU FOR R1-4 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 07/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- W.P.(Cri) No. 383 of 2009 ------------------------------------------------- Dated this the 7th day of December, 2009 JUDGMENT Basant,J. The petitioner is the wife of the detenue by name Rafeek @ Manal Rafeek. The husband of the petitioner - the said Rafeek, is detained preventively as per Ext.P1 order of detention dated 31/8/09 passed by the 1st respondent under Sec.3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as `the KAAPA'). The husband of the petitioner was taken into custody in execution of the said order on 1/9/09 and he continues in custody from that date. 2. He was taken into custody alleging that he is a `known rowdy' and that his detention is necessary to prevent him from indulging in anti-social activities. He was involved in W.P.(Cri) No. 383 of 2009 -: 2 :- as many as six crimes, the details of which are shown below: Sl.No. Crime No. Section of offences Stage of the proceedings 1 691/05 448, 294(b) and 427 Acquitted 2 86/06 451, 341, 323 & 294(b) Charge Sheet filed 3 283/07 435, 120B & 427 Charge Sheet filed 4 191/09 Police officer is the complainant - 294(b) & 353 Charge Sheet filed 5 289/09 294(b) & 427 Charge Sheet field 6 295/09 435 Charge Sheet field 3. Before us, the learned counsel for the petitioner and the learned Government Pleader have advanced their arguments. The learned counsel for the petitioner assails the impugned order on the following grounds. (1) Cases 1 and 4 above are not cases which can be taken into reckoning to decide whether the detenue is a known rowdy or not. (2) Mind was not applied by the detaining authority to the above circumstances before passing the impugned order of detention. There has been no proper application of mind on the part of the detaining authority who failed to consider whether the said cases 1 and 4 can be taken into reckoning to decide whether the detenue is a known rowdy. W.P.(Cri) No. 383 of 2009 -: 3 :- (3) Cases 5 and 6 referred above essentially reveal the disputes between the petitioner and his neighbour one Jameela Beevi and the same should also not have been reckoned to decide whether the detenue is a known rowdy. (4) At any rate, the detention of the detenue is liable to be interfered with as the representation of the detenue did not receive the consideration which it is entitled to under law in view of Art.22(5) of the Constitution and Sec.7(2) of the KAAPA. 4. The grounds: So far as case No.1 is concerned, it is not disputed that the said case has already ended in acquittal. It is accepted that long before Ext.P1 order of detention was passed by the detaining authority, the said case had ended in acquittal. So far as case No.4 is concerned, it is admitted and accepted that a police officer is the complainant in that case. In the light of Sec.2(p)(iii) of the KAAPA, such a case in which proceedings were initiated on the basis of a complaint by a police officer cannot be taken into reckoning to decide whether the detenue is a known rowdy or not. The learned Government Pleader fairly accepts that cases 1 and 4 will have to be eschewed from consideration to decide whether the detenue is a known rowdy or not. 5. That leaves us with only four cases i.e., case Nos.2, 3, 5 W.P.(Cri) No. 383 of 2009 -: 4 :- and 6. According to the petitioner, case Nos.5 and 6 are also liable to be eschewed while considering the question whether the detenue is a known rowdy or not. He advances this contention on the basis of the second proviso to Sec.2(p) which reads as follows: “Provided that any offence committed by a person,-- (i) x x x x x x x x (ii) by virtue of his involvement as a neighbour or as a close relative of the neighbour in an incident which occurred due to a dispute between immediate neighbours; or” It is the case of the petitioner that cases 5 and 6 relate to the disputes between the de facto complainant - one Jameela Beevi, and the detenue who are neighbours. The detenue works at the lorry stand. The Jameela Beevi has a shop near the lorry stand. The 5th case arose out of a dispute between the two consequent to the alleged failure of the said Jameela Beevi to provide a glass for the detenue. Case No.6 is a sequel to that incident wherein the detenue is alleged to have committed mischief by fire on account of his animosity against the said Jameela Beevi which, in W.P.(Cri) No. 383 of 2009 -: 5 :- turn, arose from the earlier crime i.e., case No.5. 6. The learned counsel for the petitioner submits that inasmuch as case Nos.5 and 6 are also liable to be eschewed from consideration in view of the second proviso to Sec.2(p), the detaining authority must have taken the view that there are only two cases (case Nos.2 and 3 above) against the petitioner and these two cases cannot by themselves bring him within the sweep of the expression `known rowdy'. At least three cases are required to bring the detenue within the sweep of the expression `known rowdy' in view of Sec.2(p)(iii) of the KAAPA. 7. The learned Government Pleader replies that by no stretch of imagination can it be held that the detenue and the de facto complainant Jameela Beevi are neighbours. According to the learned Government Pleader, close residence is necessary to bring two persons within the sweep of the expression `neighbour' and the `immediate neighbour' in the second proviso to Sec.2(p) which we have extracted above. The learned counsel for the petitioner placing reliance on the dictionary - general and legal, advances a contention that “a person or thing that is near to another” can be held to be a neighbour notwithstanding the fact that the two are not having their residences adjacent to each other or close to each other. The W.P.(Cri) No. 383 of 2009 -: 6 :- learned counsel relies on the following passage in para-17 of the decision in Anoop v. State of Kerala (2009 (4) KHC 551) to contend that the expression `neighbour' must receive a reasonable and natural understanding. The second proviso to Sec.2(p) cannot convey an invariable mandate that accused and the victim/complainant must have their residences close to each other. Even if a person has his place of business or residence close to the place of business or residence of another, he can be held to be a neighbour within the sweep of the expression `neighbour' and `immediate neighbour' in the second proviso to Sec.2(p), contends the learned counsel for the petitioner. The learned Government Pleader, on the contrary, contends that such a wide meaning given to the expression `neighbour' and `immediate neighbour' would effectively stultify the purpose of the legislation. All persons who may have their places of work close to each other cannot be held to be neighbours for the purpose of the second proviso to Sec.2(p), contends the learned Government Pleader. The learned Government Pleader contends that the nature of the dispute must be considered vis-a-vis the disputants to decide whether such persons would fall within the sweep of the expression `neighbour' and the `immediate neighbour' and the second proviso to Sec.2(p) would be W.P.(Cri) No. 383 of 2009 -: 7 :- applicable. To satisfy the second proviso, the involvement must be as a neighbour or close relative of the neighbour and the incident must be an incident which had occurred due to a dispute between the immediate neighbour. Not only should they be neighbours, the dispute must be a dispute between persons having such neghbourly relationship, contends the learned Government Pleader. 8. We are really not called upon to consider in this case whether the petitioner and the de facto complainant would be neighbours. The precise grievance raised by the petitioner is that his contentions that he is a neighbour and the second proviso to Sec.2(p) would apply have not been considered either by the detaining authority or by the Government when Ext.P4 representation was submitted by the detenue to the Government and the same was rejected by the Government under Ext.P5 order. 9. We have considered the second proviso to Sec.2(p). We take it that the anxiety of the legislature to distinguish between the acts which endanger public order as against acts which merely affect law and order is reflected in the provisos to Sec.2 (p). It is by now well settled that the powers of preventive detention can be invoked to successfully avoid threat to the W.P.(Cri) No. 383 of 2009 -: 8 :- public order. Mere threats to law and order must be dealt with in accordance with the provisions of ordinary laws whereas a threat to public order can justify invocation of the draconian powers to preventively detain a person. In each case, we are satisfied that it will have to be considered closely and carefully by the detaining authorities and the other authorities as to whether the acts complained of pose a threat merely to law and order or they really amount to a threat to public order. It is with this transparent purpose that even in the definition of a known rowdy certain types of offences are excluded by the legislature. The dispute between immediate neighbbours or close relatives of the neighbours which occur between them in their position or status as neighbours have been excluded by the legislature in the definition of Sec.2(p) of the KAAPA. That to us is the underlying and dominant purpose of the provisos to Sec. 2(p). We need only mention that the question whether the case concerned would stand excluded by the second proviso to Sec.2 (p) has got to be considered carefully in each case by the detaining and the other authorities. 10. The learned Government Pleader submits that in this case the detaining authority in Ext.P1 has considered the question pointedly in Ext.P1. Ext.P1 was passed at a time when W.P.(Cri) No. 383 of 2009 -: 9 :- the detenue had no opportunity to make a representation. In (iii) of paragraph 1 of Ext.P1 it is true that the 1st respondent has stated thus: “The offence committed by him are against the public and; not as a member of the family or a close relative of the family, not as neighbours or close relative of the neighbours, not as an employee of any establishment, not as a member of the student community and not as a member of a recognized political party.” 11. The learned Government Pleader submits that this is not a case where the detaining authority had not considered this question pointedly. 12. The learned counsel for the petitioner immediately counters this submission by pointing out that that was only a ritualistic repetition of the statutory provisions in the proviso to Section 2(p) and do not at all reveal pointed application of mind. The learned counsel for the petitioner submits that the question whether the petitioner and the said Jameela Beevi are neighbours or the dispute is one between immediate neighbours was not considered by the detaining authority in Ext.P1. At any rate, the order does not reveal application of mind pointedly on that question, contends the learned counsel for the petitioner. 13. The learned counsel for the petitioner further submits W.P.(Cri) No. 383 of 2009 -: 10 :- that, at any rate, whether cases (1) and (4) can be reckoned to decide whether the detenue is a known rowdy was not considered at all by the detaining authority and all these cumulatively reveal want of due application of mind by the detaining authority. 14. The learned Government Pleader submits that in view of Section 7(4) of the KAAPA even assuming that the detaining authority had not considered the question whether cases 1 and 4 can be taken into reckoning to decide whether the detenue is a known rowdy, the other four cases would show sufficiently that he falls within the sweep of the definition of known rowdy under Section 2(p) and therefore the fact that cases 1 and 4 will admittedly have to be excluded cannot be regarded as sufficient to invalidate the order of detention. 15. We are satisfied that atleast insofar as cases 1 and 4 are concerned, Ext.P1 reveals absence of pointed application of mind. The fact that crime No.691/05 (i.e. case No.1) had ended in acquittal on 31/3/2009 is not now disputed by the respondents. Similarly the fact that case No.4 was initiated on the basis of a complaint by a police officer and for that reason cannot be taken into reckoning under Section 2(p) is also agreed and accepted by the respondents. To those crucial aspects, it is W.P.(Cri) No. 383 of 2009 -: 11 :- very clear that mind has not been applied by the 1st respondent in Ext.P1. 16. According to us, it is perhaps not necessary to take any decision on the crucial question about the validity of detention on the above grounds. What appeals to us more is the contention that Ext.P4 representation which was made to the Government by the detenu has not received the “real and proper consideration” which it deserves under Article 22(5) of the Constitution of India and Section 7(2) of the KAAPA as held in the decision in Haradhan Saha v. State of West Bengal [1975 (3)SCC 198]. The Constitution Bench in that decision has clearly held that representation made by a detenue is entitled to real and proper consideration at the hands of the Government. The learned counsel argues that such consideration has not been received by Ext.P4 in Ext.P5. 17. It is not necessary for us to advert to the law in any greater detail. In Shruthi v. State of Kerala [W.P(Crl) No.323 of 2009 dated 6th October 2009], this court had occasion to consider this question. We have referred to the decision in Haradhan Saha (Supra), Bhut Nath Mete v. State of West Bengal [(1974) 1 SCC 645] and John Martin v. State of West [(1975) 3 SCC 836] and have come to the conclusion that the W.P.(Cri) No. 383 of 2009 -: 12 :- irreducible minimum which any such representation is entitled to is a “real and proper consideration”. The short question is whether Ext.P5 reveals that Ext.P4 has received such consideration. 18. The contentions which we have referred above - namely cases 1 and 4 should not have been taken into reckoning for the reason that the former has ended in acquittal and the latter does not fall within Section 2(p)(iii) were raised specifically in Ext.P4. Ext.P5 does not at all reveal that the said contentions had received the consideration of the Government. Similarly, we note that the contention has specifically been raised in Ext.P4 that Jameela Beevi in cases 5 and 6 is the immediate neighbour of the detenue and that hence the said cases do not come within the purview of Section 2(p) of the KAAPA. Ext.P5 reveals that such contention also has not received the pointed attention and consideration of the Government. 19. It is brought to our notice that Ext.P5 shows that a Deputy Secretary has issued the said letter to the detenue. He is not the one who had considered the representation. He is not the one who is competent to consider the representation. A contention is raised that Ext.P5 cannot be reckoned as an order W.P.(Cri) No. 383 of 2009 -: 13 :- communicating to the detenue the result/fate of his representation Ext.P4. 20. In the facts of this case, we do not think it necessary to go into that question in detail. It is trite that Article 22(5) of the Constitution of India and Section 7(2) of the KAAPA clothe the detenue not only with the fundamental right to make an effective and expeditious representation; but also clothe him with the fundamental right to have the said representation considered expeditiously and properly by the authorities. They include the fundamental right to be communicated with the order after considering such representation. At the moment, we have no material to decide whether Ext.P5 faithfully represents the order passed by the Additional Chief Secretary who alone is entitled under the Rules of business of the Government to consider such representation and pass orders. In the absence of better materials, we are unable to accept the contention that Ext.P5 does not effectively communicate the fate of Ext.P4 representation submitted by the detenue. But we find merit in the contention that Ext.P5, even assuming that it effectively communicates to the detenue the fate of his representation Ext.P4 does not reveal “real and proper consideration” which such a representation is entitled to. We say this because the W.P.(Cri) No. 383 of 2009 -: 14 :- order does not at all reveal whether cases 1 and 4 deserve to be taken into consideration. The order does not also show that the objection relating to cases 5 and 6 on the basis of the 2nd proviso to Section 2(p) have been considered at all by the Government. 21. It is well settled that the Government before it disposes of the representation made by the detenue under Article 22(5) of the Constitution of India and under Section 7(2) of the KAAPA need not hear the detenue. It is also well settled that the speaking/reasoned order need not be passed. But, at any rate, such a representation is entitled to a “real and proper consideration” as we have already held in Shruthi (Supra) on the basis of the decision of the Constitution Bench in Haradhan Saha (Supra) and later Benches in Bhut Nath and John Martin (Supra). Ext.P5 roughly translated reads as follows: “Your representation (Ext.P4) has been considered by the Additional Chief Secretary on behalf of the Government. But it is found that you are detained preventively as per the valid and legal reasons. Moreover, the representation does not reveal any reason to take a contra decision. The said representation, it is regretfully informed, has been rejected.” 22. The learned counsel for the petitioner is correct in his W.P.(Cri) No. 383 of 2009 -: 15 :- submission that this order can be the response to any petition filed under Article 22(5) of the Constitution of India and under Section 7(2) of the KAAPA by any detenu whatever be the facts of the given case. This is a standard order which can be issued in response to any representation whatever be the facts of a given case. In the instant case, atleast the two particular circumstances pointed out by the detenue - firstly that cases 1 and 4 should not be taken into reckoning for the reason that former has ended in acquittal and the latter is not one that can be taken into consideration under Section 2(p)(iii), a police officer being the complainant and secondly that cases 5 and 6 stand excluded under the 2nd proviso to Section 2(p), the victim/ complainant and the detenue being neighbours which deserved consideration have not been considered at all. At any rate, the order does not convey that such contentions in the representation have been considered. 23. We make it clear that we are not in this case proceeding to decide whether the alleged detenue and the de facto complainant in cases 5 and 6 are neighbours or immediate neighbours; but the detention must fail for the simple reason that the Government has not considered Ext.P4 representation in which inter alia this contention is also raised. W.P.(Cri) No. 383 of 2009 -: 16 :- 24. The above discussions lead us to the conclusion that the detention of the detenue is liable to be interfered with for the reason that there has been no proper order passed on Ext.P4 representation after giving the same “a real and proper consideration” as demanded by the Constitutional stipulation, the statutory provision as also the binding precedents. Ext.P5 does not reveal such consideration. The challenge succeeds. 25. In the result, a) This writ petition is allowed. b) The continued detention of the detenue Rafeek @ Manal Rafeek is set aside. c) The detenu shall forthwith be released from custody if his continued detention is not necessary in connection with any other cases. d) The Registry shall communicate the direction to the Superintendent of the Central Prison, Thiruvananthapuram forthwith. Sd/- R. BASANT (Judge) Sd/- M.C. HARI RANI (Judge) Nan/ //true copy// P.S. to Judge W.P.(Cri) No. 383 of 2009 -: 17 :-