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 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 WP(Crl.).No. 382 of 2009(S) --------------------------- PETITIONER: --------------- VIJAYAN, S/O. MAHARAJAN, KALLUKUZHY VEEDU, CHOZHIYAKKODU, KULATHUPUZHA, KOLLAM DIST. BY ADV. SRI.C.RAJENDRAN RESPONDENTS: --------------- 1. THE STATE OF KERALA REP. BY THE ADDITIONAL CHIEF SECRETARY, HOME DEPARTMENT GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM. 2. THE DISTRICT MAGISTRATE/DESITRICT COLLECTOR, COLLECTORATE, KOLLAM DIST. 3. THE DIST. SUPERINTENDENT OF POLICE KOLLAM. 4. THE CIRCLE INSPECTOR OF POLICE KULATHUPUZHA, KOLLAM. 5. THE SUB INSPECTOR OF POLICE KULATHUPUZHA POLICE STATION, KOLLAM. 6. THE SUPERINTENDENT CENTRAL PRISON, THIRUVANANTHAPURAM. GOVERNMENT PLEADER FOR R1 TO R6 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 18/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== W.P.(CRL)NO. 382 OF 2009 ============================ DATED THIS THE 18th DAY OF NOVEMBER 2009 JUDGMENT Basant,J. The petitioner, husband of the detenu who has been detained by an order passed under Section 3(3) of the Kerala Anti Social Activities Act, 2007(hereinafter referred to as 'the KAAPA') assails the order of detention dated 26-8-2009 and the continued detention of the detenu, his wife in this writ petition. The petitioner prays that a writ of habeas corpus may be issued to cause the production of the detenu, his wife and to set her at liberty. 2. The petitioner's wife Usha, aged 42 years hereinafter referred to as the detenu was involved in five cases, all under the Kerala Abkari Act. Relevant details of the cases are given below: W.P.(CRL)NO. 382/2009 -2- Sl. No Crime No. Date of offence Contra- band article quantity Offences alleged Charged by police / Abkari officer Stage of the proceed ings Remarks 1 24/2005 09/08/05 wash 3049 ltrs. S.55(g) of the Kerala Abkari Act Abkari officers Final report not filed Seizure not in the presence of the detenu 2 232/05 19/11/05 Arrack 3 ltrs. S.8 of the Abkari Act Police officers Final report filed Detenu arrested at spot 3 3/2007 22/1/07 Arrack 10 ltrs. S.8 '' Abkari officers Final report filed Articles abandoned and detenu allegedly ran away 4 215/08 26/7/08 Arrack 29 ltrs. S.8 '' Police officers Final report filed Articles abandoned and detenu allegedly ran away 5 17/09 23/2/09 Arrack 5 ltrs. S.8 '' Abkari officers Final report filed Not present at the scene. Name of the detenu given by others. W.P.(CRL)NO. 382/2009 -3- 3. The third respondent, District Police Superintendent submitted a report dated 18-8-2009 under Section 3 of the KAAPA to the second respondent District Magistrate. The District Magistrate on the basis of that report came to the conclusion that the detenu is a known goonda and that her detention is necessary to prevent her from indulging in anti social activities. Accordingly, the second respondent passed the impugned order of detention dated 26-8-2009. The order of detention was executed and the detenue was taken into custody on 27-8-2009. The order of approval under Section 3(3) of the KAAPA and order of confirmation under Section 10(4) of the KAAPA have already been issued. The detenu who thus continues in custody from 27-8-2009, will have to remain in custody for a period of six months as per order passed under Section 10(4) of the KAAPA. W.P.(CRL)NO. 382/2009 -4- 4. 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 and the continued detention of the detenu under various grounds. We shall now proceed to consider the grounds raised by the learned counsel for the petitioner in seriatim. 5. The learned counsel for the petitioner Sri. C.Rajendran first of all contends that final report has not been filed in case No.1. The same should not have been reckoned as relevant for the purpose of ascertaining whether the detenu is a known goonda. We are unable to accept this contention. A Division Bench of this Court in Elizabeth George v. State of Kerala (2008(4) K.L.T.425) has taken the view that filing of the final report under Section 173(2) of the Code of Criminal Procedure is W.P.(CRL)NO. 382/2009 -5- not a condition precedent to attract Section 2(p) or 2(o) of the KAAPA. It is true that in two subsequent decisions, (Sathi v. State of Kerala [2009(2)KLD 377] and Ranjini v. State of Kerala [2009(3)KHC 431], doubts have been expressed about the correctness of the said view. In yet another, the question has been referred to the Full Bench for decision (W.P.C. No.20606/2009). But at the moment the declaration of the law in Elizabeth George (supra) holds the field. It is unnecessary to wait for the answer to the reference by the Full Bench now. Even without serial No.1, the other four cases in which final report has already been filed alleging commission of offences by the detenu, would bring the case of the detenu within the sweep of the expression 'known goonda' under Section 2(o) of the KAAPA. That contention need not hence detain us any longer. W.P.(CRL)NO. 382/2009 -6- 6. It is next contended that in none of the cases except case No.2, there is a seizure as understood in law. In that case (Sl.No.2) seizure was allegedly effected from the personal possession of the detenu. In all the other four cases, no seizure was effected even allegedly from the personal possession of the detenu. In two of the four remaining cases (Sl. Nos.3 and 4), it is alleged that the detenu abandoned the contraband articles and ran away. In two others (Sl.Nos.1 and 5) the detenu was not present at all at the time when the seizure was effected. It is in the course of investigation that her complicity was allegedly revealed and she was indicted. 7. The learned counsel for the petitioner contends that in cases 1, 3, 4 and 5, there was no personal seizure from the possession of the detenu. Inasmuch as there is no W.P.(CRL)NO. 382/2009 -7- seizure from the possession of the detenu, the proviso to Section 2(o) cannot apply. Hence, cases 1,3, 4 and 5 must be excluded while considering whether the detenu is a 'known goonda'. 8. We are afraid that this contention cannot be accepted. The very same contention has already been considered by another Division Bench in Elizabeth George (supra) (see paragraph 8). It has been held categorically that the alleged offender need not be apprehended from the scene itself to justify the contention that a seizure was effected under the proviso to Section 2(o) of the KAAPA. We find no reason to disagree with the said dictum in Elizabeth George (supra) and we are hence not persuaded to accept the request of the learned counsel for the petitioner to refer the matter to the Full Bench for reconsideration of the said question. W.P.(CRL)NO. 382/2009 -8- 9. The learned counsel for the petitioner further submits that though the presence of the detenu is not invariably insisted by the decision in Elizabeth George, there must be a seizure and according to the learned counsel for the petitioner, taking any article from an open place cannot be held to be seizure in law and, therefore, the act of taking into custody of the contraband articles in cases 1 and 5 should not be reckoned as an act of “seizure”. Hence the proviso to Section 2(o)must be held to be inapplicable to cases 1 and 5. We are afraid that this second limb of the second contention cannot also be accepted. “Seizure” in law can only mean taking into custody/possession of any article by a functionary in exercise of the authority of law.” Such seizure, according to us, can be effected from any place- open or concealed or from the personal possession of an offender or otherwise. W.P.(CRL)NO. 382/2009 -9- In these circumstances, the second contention built laboriously on two limbs, namely that seizure is not effected in cases 1,3,4 and 5 from the personal possession of the detenu and that seizure is no seizure for the reason that the same has been effected from an open place in cases 1 and 5 cannot also be accepted. The second contention raised also in these circumstances fails. 10. The learned counsel for the petitioner thirdly contends that in order to be a 'known goonda' under Section 2(o) of the KAAPA, first of all the detenu must be a 'goonda'. To be a goonda, she must answer the definition of 'goonda' under Section 2(j) of the KAAPA. According to the learned counsel for the petitioner, inasmuch as the detenu is not alleged to have indulged in any activities, which would bring her within the former part of the definition of 'goonda' under Section 2(j), she cannot be held to be a 'goonda' and W.P.(CRL)NO. 382/2009 -10- consequently a 'known goonda'. 11. We are afraid, this contention cannot also be accepted. We shall for the purpose of arguments assume that the first part of the definition 'goonda' in Section 2(j) is not answered affirmatively by the detenu. But the definition of 'goonda' clearly shows that not only those who fall within the first part of the definition will come within the sweep of the expression 'goonda', but those falling within the inclusive latter half do also fall within the sweep of the expression 'goonda'. In that view of the matter, the detenu, who easily answers the definition of 'bootlegger' in Section 2 (c) of the KAAPA must necessarily be held to be a goonda at least under the latter inclusive part of the definition of goonda. For the sake of easy reference, we extract the definition of goonda in Section 2(j): “goonda”means a person who indulges in any anti-social W.P.(CRL)NO. 382/2009 -11- activity or promotes or abets any illegal activity which are harmful for the maintenance of the public order directly or indirectly and includes a bootlegger, a counterfeiter, a depredator of environment, a digital data and copy right pirate, a drug offender, an hawala racketeer, an hired ruffian, rowdy, an immoral traffic offender, a loan shark or a property grabber.” (emphasis supplied) We repeat that not only those who answer the former descriptive part of the definition of the 'goonda' under Section 2(j) of the KAAPA, but those who fall within the inclusive latter part of the definition of 'goonda' will also be 'goonda' under Section 2(j) of the KAAPA. The detenu who answers the definition of bootlegger in Section 2(c)cannot hence contend that she is not a goonda. 12. We now consider the contention of the learned counsel for the petitioner that the petitioner will not fall W.P.(CRL)NO. 382/2009 -12- within the former part of the definition 'goonda' in Section 2 (j). A person, who indulges in anti social activity, falls within the definition of 'goonda' under the former part of Section 2(j). “Anti Social Activity” is defined in Section 2(a) of the KAAPA in the following words: “2(a)”anti-social activity” means acting in such manner as to cause or likely to cause, directly or indirectly, any feeling of insecurity, danger or fear among the general public or any section thereof, for any danger to the safety of individuals, safety of public, public health or the ecological system or any loss or damage to public exchequer or to any public or private property or indulges in any activities referred in clauses (c), (e), (g),(h),(i),(l), (m), (n), (q) and (s) of this section.” (emphasis supplied) Any person who indulges in activities referred to in clauses (c),(g),(h),(i),(l),(m),(n),(q) and (s) of Section 2 must also W.P.(CRL)NO. 382/2009 -13- be held to indulge in anti social activities defined in Section 2(a) of the KAAPA. Those who indulge in such activities, by their indulgence in such activities ipso facto can be held to indulge in anti social activities. Therefore, if a detenu answers the definition of 'bootlegger' in Section 2(c), he must be held to indulge in anti social activities as defined in Section 2(a) of the KAAPA and consequently a 'goonda' answering the former descriptive part of definition of 'goonda' in Section 2(j) of the KAAPA. We do not think it necessary to extract the definition of 'bootlegger' under Section 2(c) as there is virtually no contention that a person against whom the cases referred above are pending cannot be held to be a bootlegger answering the definition of the same in Section 2(c) of the KAAPA. 13. The third contention raised by the learned counsel for the petitioner on the two limbs that the detenu is not a W.P.(CRL)NO. 382/2009 -14- 'goonda' under Section 2(j) and the alleged activity will not fall within the definition of 'anti social activity' in Section 2 (a) of the KAAPA do not in these circumstances merit acceptance. 14. The fourth contention raised by the learned counsel for the petitioner is on two grounds. He contends that there is no proof placed before the court to show that what has been allegedly seized is alcohol or spirit. Inasmuch as there is no material to show that the articles seized is alcohol or spirit as stated in the proviso to Section 2(o) of the KAAPA, the detenu cannot be held to fall within the sweep of the expression 'known goonda' in Section 2(p) of the KAAPA, contends the learned counsel. The learned counsel further contends that no woman officials were there to apprehend the detenu in the four cases referred above (except case No.2) and for that reason also the said four cases cannot be W.P.(CRL)NO. 382/2009 -15- taken into reckoning while considering the inclusion of the detenu as a 'known goonda' under Section 2(o) of the KAAPA. 15. We are afraid, this contention cannot also be accepted. We are not at the moment concerned whether the prosecution of the detenu in the four cases would end in conviction or not. To bring a person within the sweep of the expression 'known goonda' and 'known rowdy' in Section 2(o) of the KAAPA, the court need only consider whether after investigation or inquiry, the police officer or authority has found the detenu to have committed the offence under Section 2(t) and 2(j) of the KAAPA. The intrinsic worth of the indictment or the possibility or chances of conviction is not to be considered while considering whether the detenu can be treated as 'known goonda' or 'known rowdy'. Of course in a case where mala fides or perversity is alleged, W.P.(CRL)NO. 382/2009 -16- this court in judicial review of the order of detention in an appropriate case can consider this question while deciding whether the latter subjective satisfaction under Section 3 of the KAAPA has been validly entertained. But in a case like the instant one where mala fides or perversity are not even alleged, it is not necessary for the court to consider the possibility of conviction in the indictments to decide the question whether the detenu is a known goonda or known rowdy. The fact remains that in all the four cases (Sl.Nos.2 to 5), the final reports/complaints have already been filed raising the allegation that the detenu has committed the offences punishable under Section 8 of the Kerala Abkari Act. In these circumstances, the 4th contention raised on the said two limbs – that the articles seized have not been shown to be alcohol or spirit by production of a chemical examination report and that no women officials were W.P.(CRL)NO. 382/2009 -17- present to apprehend the detenu, a woman, at the scene of the alleged crime cannot deliver any advantage to the detenu. 16. Fifthly, it is contended by the learned counsel for the petitioner that there is no live link between the alleged instances of anti social activities and the impugned order. The impugned order of detention is passed on 26-8-2009. The last of the anti social activities alleged in the five cases referred above took place on 23-2-2009. The long gap of time between 23-2-2009 and 26-8-2009 must inevitably lead to the conclusion that there is no live link between the last of the alleged anti social activity and the impugned order of detention, contends the learned counsel. 17. We had adverted to this aspect earlier in the decision in Sati v. State of Kerala, 2009(2)K.L.D. 377. In paragraph 59 of the said decision relying on W.P.(CRL)NO. 382/2009 -18- Rajendrakumar v. State of Gujarat, A.I.R.1988 S.C.1255, we had noted that the exercise is not one merely of counting the number of days between the last act and the order of detention. Totality of circumstances will have to be taken into consideration and reckoning to decide whether there is any live link between the alleged last instance of anti social activity and the impugned order of detention. In the instant case, one cannot lose sight of the fact that five instances of anti social activities have been alleged against the detenu on 9-8-2005, 19-11-2005, 22-1-2007,26-7-2008 and 23-2-2009. In the facts and circumstances of this case, the gap of time between 23-2-2009, the date of last offence alleged and 26-8-2009, the date of the impugned order cannot be reckoned as crucial to sail to the conclusion that the nexus has been snapped. It will not be inapposite or irrelevant in this W.P.(CRL)NO. 382/2009 -19- context to note that in respect of the last alleged act which took place on 23-2-2009, investigation in that crime was completed and the final report was filed in the said crime, 17/2009 only on 7-7-2009. The impugned order has been passed on 26-8-2009. Evidently proceedings were contemplated and initiated against the detenu only after the final report was filed in the last of the crime on 7-7-2009. The report of the Superintendent of Police to the District Magistrate under Section 3(1) of the KAAPA is seen dated 18-8-2009. The final report in the last of the crime was filed on 7-7-2009 and proceedings were initiated to invoke the powers under the KAAPA on 18-8-2009. The same culminated in the impugned order of detention dated 26-8-2009. In these circumstances, the fifth contention raised that there is snapping of the nexus between the alleged acts of anti social activity and the impugned order of W.P.(CRL)NO. 382/2009 -20- detention cannot be accepted. 18. Sixthly, the learned counsel for the petitioner contends that copies of the relevant documents have not been furnished to the alleged detenu as mandated by Section 7(2) of the KAAPA and Article 22(5) of the Constitution of India. It is true that acknowledgment has not been obtained on any list of documents prepared by the detaining/serving authority. The learned counsel for the petitioner was requested to specify his precise grievance – as to the copy of which document has not been served on the detenu. Even though the learned counsel specified some of the documents, the learned Government Pleader was able to point out specifically the acknowledgment taken from the detenu on the copies of all such documents for having received copies of the same. The learned counsel for the petitioner then contends that the detenu's signature W.P.(CRL)NO. 382/2009 -21- may have been taken on many documents, but that is not assurance of the fact that copies of such documents have been furnished to the detenu. The learned counsel for the petitioner submits that considering the position of the detenu as a prisoner preventively detained, it is necessary for the authority to take acknowledgment not only on the copies of documents furnished but also on such list of documents. We may readily agree with the learned counsel for the petitioner that it will be advantageous to take acknowledgment both in the list as also on the documents concerned. But the bottom is knocked out of the contention that copies have not been furnished, as acknowledgment is seen obtained on all such documents of which copies have been furnished. The learned Government Pleader points out that on the final report submitted by the Superintendent of Police under Section 3(1) of the KAAPA, W.P.(CRL)NO. 382/2009 -22- acknowledgment has been taken and the said document refers to the list of enclosures and additional documents. In addition to this, acknowledgment has been taken on the respective documents also, points out the learned Government Pleader. We are satisfied, in these circumstances, that there is no merit in the contention that copies of relevant documents have not been furnished as mandated by Article 22(5) of the Constitution of India and Section 7(2) of the KAAPA. 19. Seventhly, the learned counsel for the petitioner contends that errors and inadequacies galore in the contents of the order of detention and the grounds of detention accompanying the said order. We have been taken through this alleged inadequacy. We are satisfied that there is no specific inadequacy pointed out, which in the totality of circumstances could be said to amount to a vital inadequacy W.P.(CRL)NO. 382/2009 -23- frustrating the right of the petitioner to know the grounds of detention and his right to make a representation against the said order of detention. It is true that typographical and inadvertent errors have crept into the order of detention and grounds about crime number, dates etc. But no such vital error or inadequacy frustrating the purpose for which copies are furnished, is shown to exist. These alleged errors/inadequacies cannot, in these circumstances, deliver any advantage to the detenu. 20. Eighthly, it is contended that representation submitted by the detenu, a copy of which is produced as Ext.P17 has not been properly and effectively considered by the Government in Ext.P19 order under which the said representation was rejected. The learned counsel for the petitioner has brought to our notice the cryptic and unsatisfactory manner in which Ext.P19 is worded. It is W.P.(CRL)NO. 382/2009 -24- worded identically as the order which was considered by us in the judgment dated 6-10-2009 in Sruthi v. State of Kerala, (W.P.(Crl)No.323 of 2009). We have considered the question in detail in Sruthi v. State of Kerala.(supra) It is by now trite and well settled that a representation under Section 7(2) of the KAAPA to the Government need not be disposed of by a speaking order. Opportunity for hearing and consideration in detail giving reasons is certainly not necessary when such a representation is disposed of by the Government. Relying on the precedents and after reviewing the entire case law on the subject, we have already held in Sruthi (supra) that the detenu has a right to insist that her representation should receive a real and proper consideration. The question to be considered is whether such a real and proper consideration has been given to Ext. P17 in Ext.P19. W.P.(CRL)NO. 382/2009 -25- 21. To decide this question, nature of the representation/grievance made in Ext.P17 is of crucial relevance. We have been taken through Ext.P17 in detail. The first objection raised is that copy of the report of the Superintendent has not been furnished to the detenu. We have already looked into the file and are satisfied that there is acknowledgment of the detenu on a copy of the said report of the Superintendent of Police. The Government, if it perused the file (we have no reason to assume that the Government did not) would have been satisfied that the said objection is without merit and no further consideration of that objection was at all necessary. All other representations made are in respect of the five cases in question. Of course, it is true that an objection was raised that in the first case final report has not been filed. We have already noted that in the light of Elizabeth George, W.P.(CRL)NO. 382/2009 -26- the binding law applicable now in the State is that filing of the final report need not invariably be insisted to take into reckoning such a case for the purpose of Section 2(o) (ii) and 2(p)(iii) of the KAAPA. In these circumstances, we note that no other specific contention requiring any more detail consideration was raised in Ext.P17 representation. In the nature of the objections raised in Ext.P17, we are unable to agree that Ext.P17 has not been