IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 26TH AUGUST 2009 / 4TH BHADRA 1931 WP(Crl.).No. 308 of 2009(S) --------------------------- PETITIONER: --------------- SULOCHANA, W/O.MANOJ, SHEMI BHAVAN, KOTTIYAM, THAZHUTHALA CHERRY, ADICHANALLOOR VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT. BY ADV. SRI.C.RAJENDRAN RESPONDENTS: --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO DEPARTMENT OF HOME AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT MAGISTRATE, DISTRICT COLLECTOR, KOLLAM. 3. THE DISTRICT SUPERINTENDENT OF POLICE, KOLLAM. 4. THE SUB INSPECTOR OF POLICE, KOTTIYAM POLICE STATION, KOLLAM. GOVERNMENT PLEADER MR. C.M. KAMMAPPU FOR R1 TO 4 ADDL.DIR.GENL (PROSCN)MR. K.K. RAVINDRANATH THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 26/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARIRANI, JJ. * * * * * * * * * * * * * W.P.(Crl).No.308of 2009 ---------------------------------------- Dated this the 26th day of August 2009 J U D G M E N T BASANT,J The petitioner is the mother of Shemmy Kumar alias Shemmy who is detained under Section 3 of the Kerala Anti- Social Activities (Prevention) Act, 2007 (hereinafter referred to as KAAPA). She prays that a writ of habeas corpus may be issued to produce her son, the detenu to set aside the order of detention and to release him from custody. 2. The order of detention is produced as Ext.P1. The same is dated 23/4/2009. Ext.P2 dated 23/04/2009 is the grounds of detention appended to Ext.P1 order. The said order of detention has been passed on the basis of Ext.R2(c) report of the Superintendent of Police dated 30/12/2008. WPCrl.308/2009 -2- 3. The petitioner's son has been detained allegedly taking into account the following cases: Sl. No. Crime No. Date of filing charge sheet Case No. Remarks 1 85/04 admittedly prior to 23/4/2009 C.P.100/04 Nil 2 519/08 14/7/2008 C.C.No.Not given Final report filed till 30/12/2008 as per the report of the S.P. 3 456/08 20/7/2009 C.C.No.Not given Final report filed admittedly after the order of detention 4 462/08 28/2/2009 C.C.No. 2551/2009 Final report filed till 30/12/2008 as per the report of the S.P 5 599/07 12/12/07 C.C.No. 173/2008 Nil 4. The impugned order of detention was passed on 23/4/2009. The detenu was arrested on 12/7/2009. The order of approval was passed under Section 3(3) of the KAAPA and the Advisory Board has not yet given its opinion. 5. Before us, the learned counsel for the petitioner and the learned Additional Director General of Prosecutions have WPCrl.308/2009 -3- advanced their arguments. The learned counsel for the petitioner assails the impugned order of detention on the following grounds: i) Copies of the relevant documents have not been furnished to the petitioner and this vitiates the order of detention. ii) At any rate, the 5th case that is crime No.599/07 on which reliance was not placed by the detaining authority cannot now be relied upon to support the contention that the detenu is a known rowdy. iii) At any rate, the final reports having not been filed (in crime Nos.519/08, 456/08 and 462/08) [as indicated in the Section 3(1) report dated 30/12/2008 of the Superintendent of Police – Ext.R2(c)] , the detenu cannot be reckoned as a known rowdy under Section 2(p) of the KAAPA. 6. Ground No.1: The learned counsel for the petitioner contends that copies of no document other than Exts.P1, P2 and P3, that is the order of detention, the grounds and the jail admission authorisation were furnished to the detenu at the time of his arrest or later. Inasmuch as copies of the relevant F.I.Rs, WPCrl.308/2009 -4- final reports and the F.I.R registered under the KAAPA have not been furnished to the detenu, the impugned order of detention is liable to be set aside, it is contended. 7. The learned A.D.G.P, on the contrary, contends that copies of all relevant documents were furnished to the detenu at the time of his detention. According to the learned A.D.G.P, 16 documents were furnished to the detenu and they are: 1. Detention ordered 2. Statement showing grounds of detention 3. Memo for execution of detention ordered 4. Jail admission authorisation 5. Report of the Superintendent of Police 6. FIR in Crime No.85/04 7. Statement of complainant in Crime No.85/04 8. Final report in Crime No.85/04 9. FIR in Crime No.599/07 10. Petition of Village Officer, Adichanalloor dated 17/10/2007 11. Charge sheet in Crime No.599/07 12. FIR in Crime No.519/08 WPCrl.308/2009 -5- 13. Charge sheet in Crime No.519/08 14. FIR in Crime No.456/08 15. Statement of the complainant in Crime No.456/08 16. FIR in Crime No.462/08 8. It is trite, and it is unnecessary to refer to precedents of this aspect, that a detenu is entitled to receive copies of all documents on which reliance is placed by the detaining authority. Not only copy of the ground of detention; but also copies of documents relied on in the grounds of detention are also to be communicated and furnished to the detenu under Article 22(5) of the Constitution of India as also under Section 7 (2) of the KAAPA. On that aspect, there is no controversy and we are not hence adverting to precedents. 9. As indicated earlier, reliance is placed on five specific cases. We are not now adverting to the controversy as to whether the 5th case has been relied upon or not. At any rate, copies of all documents relating to the five cases referred above are to be furnished to the detenu if the detaining authority wants to place reliance of those cases. Have they been furnished, is WPCrl.308/2009 -6- the question to be considered. 10. The learned counsel for the petitioner submits that copies of Exts.P1, P2 and P3 have been furnished and acknowledgment has been taken of the detenu in those three documents stating specifically that copies have been furnished. But, according to the petitioner, the detenu was not served with copies of any other documents. The learned A.D.G.P contends that this is not correct. Acknowledgment taken on Exts.P1 and P2 show that copies of “related documents” (ബനപട രഖക ) have been furnished. Inasmuch as it is admitted by the detenu that copies of “related documents” have been furnished as per the endorsement on Exts.P1 and P2, it is idle for the petitioner not to contend that copies of relevant documents relating to the five cases referred above have not been furnished. According to the learned A.D.G.P, the 16 documents referred to in the counter affidavit of respondents 2 and 4 which, we have already extracted above, were handed over to the detenu in a bundle and, in these circumstances, he cannot be heard to contend that he did not receive documents other than Exts.P1 to P3. 11. In support of this contention, the learned A.D.G.P, WPCrl.308/2009 -7- first of all, relies on the endorsement given on Ext.R2(c). The detenu has signed in Ext.R2(c) under an endorsement made on the last page. It only shows that the contents were read over, translated into Malayalam and understood by the detenu. The endorsement on Ext.R2(c) does not specifically say that copy thereof was furnished to the detenu. But the learned A.D.G.P relies on the fact that the endorsement on Ext.R2(c) shows that the contents were translated to the detenu and he had understood the same. In this context, the learned A.D.G.P relies on the endorsements on Exts.P1 and P2, which indicate that copy of the report of the Superintendent of Police to the District Collector had also been furnished to the detenu. A harmonious reading of the endorsements on Exts.P1, P2 and Ext.R2(c), according to us, points to the acceptability of the contention of the learned A.D.G.P. Though specific endorsement has not been taken, Exts.P1,P2 and Ext.R2(c) show that copy of Ext.R2(c) was received by the detenu. A harmonious reading of the endorsements on Exts.P1, P2 and Ext.R2(c) unmistakably lead us to the conclusion that copy of Ext.R2(c) was also served on the detenu. The grievance that copy of Ext.R2(c) has not been WPCrl.308/2009 -8- served, cannot hence, be accepted. 12. The learned counsel for the petitioner contends that, at any rate, copies of the relevant documents relating to the five crimes referred above have not been furnished. There is no specific acknowledgment taken for service of copy of those documents. The short question is whether the reference to connected documents (ബനപട രഖക ) in Exts.P1 and P2 is sufficient to show that copies of the relevant documents relating to the five crimes have been served on the detenu. 13. It is trite that the law of preventive detention is an exception to the rule that no person can be deprived of life and liberty except after a due trial. The battle for liberty and personal freedom has depended very much on compliance with procedural safeguards. Hence it has always been insisted that strict compliance with procedure must be insisted when a person is sought to be detained without trial. 14. The right of the detenu to get copies relating to all the five crimes relied upon by the detaining authority cannot be disputed. The question is whether such copies have been WPCrl.308/2009 -9- furnished or not. While the detenu asserts that copies of the documents have not been furnished to him, the respondents asserted that such copies have been furnished. What are the documents, which have been furnished to the detenu. Admittedly, there is no document relating to these five crimes in which acknowledgment of the detenu has been taken for having received copies of documents [other than Exts.P1 to P3 and Ext.R2(c)]. In respect of the other documents, the only contention of the leaned A.D.G.P. is that all such documents, which are referred above as 1 to 16, are acknowledged by the acknowledgment given on Exts.P1 and P2. The related records (ബനപട രഖക )which are acknowledged in Exts.P1 and P2 must convey to the court that all documents relating to the five cases have been furnished to the detenu. 15. We are afraid, this contention cannot be accepted. The respondent/State and its officials must be attributed with knowledge of the rigour of the procedural stipulations in preventive detention law. We note that so far as Exts.P1,P2, P3 and R2(c) are concerned, specific acknowledgment has been WPCrl.308/2009 -10- taken on the copies of the concerned documents. Even on a document like Ext.P3 (Jail Admission Authorisation), receipt of copy, is seen acknowledged. If that be so, it would be idle for the respondent to expect the court to accept the acknowledgment on Exts.P1 and P2 regarding receipt of “connected records” as sufficient to conclude that all relevant documents in respect of the five specific cases have been given and acknowledged. Such conclusion does not appear to be possible or probable on the basis of vague, general and sweeping acknowledgment taken on Exts.P1 and P2. 16. The petitioner has very specifically asserted that the detenu has received copies of Exts.P1 to P3. We will assume that the safe conclusion is that copy of Ext.R2(c) was also furnished. But even then, it must be held that there is nothing to safely come to the conclusion that the copies of documents relating to the five cases referred above have been furnished to the detenu. Since those relevant documents are not furnished, it must consequently be held that the detenu's right to make effective representations to the Government and the Advisory Board has WPCrl.308/2009 -11- also been frustrated. The petitioner is, in these circumstances, entitled to succeed on the first ground – that copies of relevant documents have not been furnished to him. 17. Before parting with this point, we must express our anguish that the officials charged with the responsibility of implementing the KAAPA have not so far been attuned to the requirement of following satisfactory procedure in respect of preventive detention. One fails to understand why the detaining authority cannot append a list of documents relied on to the order of detention or obtain the acknowledgment of the detenu, in such list of documents for having received the copies of all documents mentioned in the list. The learned A.D.G.P. is left to find for himself on the basis of the acknowledgment taken of “connected documents”. The fact that specific acknowledgment has been taken for service of copies of Exts.P1 to P3 and R2(c) makes the contention unacceptable and unsatisfactory. If such acknowledgment on copies of the documents can be taken on Exts.P1 to P3 and Ext.R2(c), it passes our comprehension as to why a similar procedure was not followed in respect of other WPCrl.308/2009 -12- documents. We have stated in paragraphs 69 to 71 of the decision in Sathi v. State of Kerala (judgment dated 2-7-2009 in W.P.Crl.No.201/2009), the need to equip those who operate the KAAPA with the requisite competence to deal with the new responsibility placed on the shoulders by this piece of legislation. If the State had taken serious efforts to equip the persons concerned with the requisite competence, we have no doubt that the sorry state of affairs would not have prevailed in this case. We repeat that we expect the State to do the needful so that the operatives of the statute did not bring the bad name of the statute itself. It is agonising for courts to set aside orders passed under a well meaning statute like the KAAPA on procedural and technical reasons when on merits the challenge is not proved to be substantial. Ground Nos.2 & 3 18. In the light of the finding on Ground No.1, we think that it is unnecessary to go in detail to ground Nos.2 and 3. But here again, we do note that under ground No.2, the contention was raised that only four cases are relied on by the detaining WPCrl.308/2009 -13- authority to come to the conclusion that the detenu is a known rowdy under Section 2(p) of the KAAPA. The 5th case, i.e. Crime No.599/2007 is not relied on by the detaining authority as a circumstance to include the detenu under the definition of known rowdy in Section 2(p) of the KAAPA. Why this is so is not explained at all? The learned A.D.G.P. points out that it can only be an inadvertent omission/error in Ext.P2. It is very clearly stated that there are five cases. But reliance is placed only on four cases to come to the conclusion that the detenu is a known rowdy under the KAAPA. A valiant attempt is made by the learned A.D.G.P. to contend that the former objective satisfaction can be entertained by this Court on the basis of the 5th case also. But, when the detaining authority has not relied on the 5th case, it would be rather difficult for the court to rely on a circumstance not specifically relied on. (Nay, in this case it can be said and there is force in that contention that there is specific exclusion by implication of such case when the detaining authority considered the matter.) We do also note that in the report dated 30-12-2008 submitted by the Superintendent of WPCrl.308/2009 -14- Police under Section 3(1) of the KAAPA, it is specifically stated that three of the five cases reported by him (i.e.three of the four cases relied on by the detaining authority) are cases in which investigation is not complete. But, later the detaining authority appears to have verified facts to ascertain that in those three cases, final reports had been filed prior to the order of detention in two and subsequent to the order of detention in the third. But, curiously enough in the order of detention, this fact is not specifically narrated. The learned counsel for the petitioner advances detailed arguments to contend that as a matter of fact at least in two such cases, investigation had not been completed and final report had not been filed prior to the date of the impugned order of detention. Suffice it to say that there is no satisfactory material to indicate that mind had been applied properly and pointedly to this crucial and relevant circumstance as to whether the investigation was complete or not in respect of three cases (i.e. cases 2 to 4 referred above). 19. It follows from the above discussion that the petitioner is entitled to succeed. WPCrl.308/2009 -15- 20. In the result: a) This Writ Petition is allowed; b) The impugned order of detention is set aside; c) If the detention of the detenu is not necessary in connection with any other case, he shall forthwith be released from the Central Jail, Thiruvananthapuram, where he is detained; d) The Registry shall forthwith communicate this direction to the prison authorities. R. BASANT, JUDGE jsr/ks. M.C. HARI RANI,JUDGE