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. 312 of 2009(S) --------------------------- PETITIONER : --------------- INDU SHYAM KUMAR, AGED 23 YEARS, W/O.SHYAM KUMAR, KARIKKOTH HOUSE, NETTINAPPILLY BHAGAM, MANICKAMANGALAM, KALADY, ERNAKULAM DISTRICT. BY ADV. SRI.K.SUNILKUMAR SRI.MARTIN CHACKO RESPONDENTS: --------------- 1. STATE OF KERALA, REP.BY ADDL.CHIEF SECRETARY TO GOVT., HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE, ERNAKULAM. 3. THE SUPERINTENDENT OF POLICE, ERNAKULAM RURAL, ALUVA. 4. THE SUPERINTENDENT, CENTRAL PRISON, VIYYUR. GOVERNMENT PLEADER SRI.C.KAMAPPU FOR R1-4 ADDL.DIR.GENL (PROSCN) SRI.K.K.RAVEENDRAN 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.HARI RANI, JJ. ------------------------------------ W.P(Crl.) No.312 of 2009 ------------------------------------- Dated this the 26th day of August, 2009 JUDGMENT BASANT, J. The petitioner, the wife of one Syamkumar, a detenu under Section 3 of the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred to as the `KAAPA') has come before this Court to assail the detention of the detenu. 2. The detenu was detained as per the impugned order Ext.P1 dated 09.03.09. He was actually arrested on 21.06.09. The order of detention has been approved under Section 3(3) of the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred to as the `KAAPA'). The order of confirmation under Section 10(4) of the KAAPA has already been passed on 22.08.09. The same has been served on the detenu, submits the learned Additional Director General of Prosecution. 3. According to the respondents, the husband of the petitioner is a known rowdy, answering the definition of that term in Section 2(p) of the KAAPA. As many as 7 cases are pending against him. The details of which are given below: W.P(Crl.) No.312 of 2009 2 Sl.No. Crime No. Date of offence Date of charge sheet C.C Status 1 55/06 15.10.06 Not furnished 339/07 Pending trial 2 876/06 29.10.06 Not furnished 145/07 Pending trial 3 51/08 07/05/08 05/11/08 Not furnished Pending trial 4 340/08 25.04.08 12/08/08 “ Pending trial 5 952/08 20.10.08 21.01.08 “ Pending trial 6 248/06 18.04.06 12/08/08 “ Pending trial 7 669/08 22.07.08 Not filed Not filed Pending investigation It is not disputed that these cases will bring the detenu within the sweep of the definition of known rowdy under Section 2(p) of the KAAPA. The detenu continues to be detained. 4. We have heard the learned counsel for the petitioner and the learned Additional Director General of Prosecution. The learned counsel for the petitioner assails the impugned order of detention on the following two specific grounds. i) The impugned order is bad in law inasmuch as the order of detention has been furnished to the detenu only in English and its Malayalam translation has not been furnished. ii) The impugned order is bad for the reason that the nexus between the last of the offending acts and the order of detention dated 09.03.2009 is snapped as a period of about 5 W.P(Crl.) No.312 of 2009 3 months have elapsed between the last contumacious act alleged against the detenu and the date of the order of detention. 5. Ground No.I Ext.P1 is the order of detention. That was served on the detenu. Ext.P1 is in English language. It was served on the detenu along with Ext.P3 which gives the ground for detention. It is not disputed that Ext.P3 in Malayalam was served on the detenu along with Ext.P1 in accordance with law. The only contention is that the Malayalam translation of Ext.P1 order has not been served on the detenu. 6. The learned counsel for the petitioner relying on the words `communicate' and `furnish' appearing in Article 22(5) of the constitution and Section 7(2) of the KAAPA advances a contention that furnishing of the order of detention in a language not known to the detenu shall ipso facto vitiate the order of detention. The learned counsel for the petitioner relies on two decisions of the Supreme Court in Nandoli Mohamed Rafeeq v. Union of India [2004 (12) SCC 218] and Ibrahim Ahmad Batti v. State of Gujarat [(1982) 3 SCC 440] and contends that `communicating' and `furnishing' of the order of detention, W.P(Crl.) No.312 of 2009 4 grounds and documents in a language not known to the detenu will not be sufficient compliance of the mandate to “communicate” in Article 22(5) of the Constitution. The counsel further contends that such furnishing of documents shall not amount to satisfactory “furnishing” of the documents under Section 7(2) of the KAAPA. 7. The learned Additional Director General of Prosecution on the contrary places reliance on the decision in Devji Vallabhbhai v. Administrator, Goa, Daman & Diu [AIR 1982 S.C 1029]. The learned Addl.D.G.P further points out that under the KAAPA, notwithstanding the mandate of Article 22 of the Constitution, even a detenu detained under the preventive detention law has the right to consult a lawyer. He has also the right to be assisted by the Superintendent of Police to help him to make an effective representation against the order of detention. The learned Addl.D.G.P relies on Section 7(3) of the KAAPA which we extract below: “Section 7: Grounds of order of detention to be disclosed:- (1) .................................. W.P(Crl.) No.312 of 2009 5 (2) ....................................... (3) The Superintendent of the Jail where such person is detained shall afford him reasonable opportunity to consult a lawyer and reasonable assistance in making a representation against the detention order to the Government or to the Advisory Board.” 8. The learned Addl.D.G.P contends that as per the decision in Devji Vallabhbhai (supra) the mere fact that the order of detention is in the English language while the grounds of detention which repeats the contents of the order of detention is in a language known to the detenu cannot ip so facto lead to invalidation of the order of detention. The learned Addl.D.G.P relies on the following passage in para.8 of the said decision. “Para.8:................................................................ ........................................................................... So far as the non-supply of the Gujarati version of the ORDER as per Annexure`A' is concerned, in our opinion, there has been no violation of Article 22(5) or any other law. The ORDER as per Annexure `A' was a mere formal recital of S.3(1) of the COFEPOSA, showing the provision of law under which the order of detention has been made. Although, the section of the COFEPOSA has not been mentioned in the last but two paragraphs of the “grounds”, it has been stated that the detenu engaged himself “in smuggling goods and that there is sufficient cause to pass detention order against you with a view to preventing you from smuggling goods”, which was in Gujarati. It cannot, W.P(Crl.) No.312 of 2009 6 therefore, be said that the detenu was in any way handicapped in submitting his representation, or there has been any violation of Article 22(5) of the Constitution.” 9. We have been taken through Ext.P1 order of detention in English and Ext.P3 grounds of detention in Malayalam. We are satisfied that the observations of the Supreme Court in the passage extracted above squarely applies. Though the order of detention is in English, its contents are given again in the grounds of detention annexed to the order of detention in Malayalam. In these circumstances the fact that the order of detention furnished to the detenu is in English, is not a satisfactory reason to invalidate the order of detention. 10. The question whether the precedents laid down under other preventive detention laws can be imported blindly in the challenge against an order of detention under the KAAPA, in the light of Section 7(3) of the KAAPA has been considered by us in detail in the decision in Sathi v. State of Kerala (the judgment in W.P(Cri) No.201 of 2009 dated 02.07.09). In para.7 to 22 of the said judgment, we have considered this question in detail and have come to the conclusion that the mere omission to furnish W.P(Crl.) No.312 of 2009 7 copies of documents in the English language to a detenu cannot e held to be fatal infraction of the rights of the detenu under Article 22(5) of the Constitution and Section 7(2) of the KAAPA. We have in that decision relied on Section 7(3) of the KAAPA which we have extracted above earlier. Paragraphs 7 to 22 of the judgment in Sathi v. State of Kerala must be read as part of this judgment. It is significant that there is no grievance of any infraction of the right under Section 7(3) of the KAAPA. The challenge on the first ground hence fails. 11. Ground No.II It is contended that the nexus between the allegedly prejudicial acts and the order of detention is snapped because of the elapse of a period of about 5 months from the date of the last act to the date of the impugned order of detention. Reliance has been placed on 7 culpable and contumacious acts. In 6 of them, investigation has been completed and final reports have been filed. In the seventh crime, investigation is pending. The alleged contumacious acts were committed on various dates between 18.04.06 and 20.10.2008. The last of the final reports in these 7 cases is seen filed on 05.11.08. The details furnished in the W.P(Crl.) No.312 of 2009 8 tabular column referred above vouch for the correctness of this contention. 12. The law of preventive detention is the jurisprudence of suspicion. The detaining authority has to be subjectively satisfied of the probable contumacious conduct in future on the basis of the past acts of the detenu. The exercise is not one of counting days between the last act and the order of detention. The question is whether the subjective satisfaction entertained by the detaining authority of the probable future behaviour of the detenu on the basis of the past conduct is justified or not. It is trite that the said satisfaction is not to be re evaluated by the Court while undertaking judicial revision of that administrative decision. In the facts and circumstances of this case, where as many as 7 contumacious acts are alleged against the detenu during the period of 18.04.06 to 21.10.08, we are unable to agree that there has been a snapping of the nexus or the live link between the contumacious acts alleged and the order of detention. The learned Addl.D.G.P alertly points out that the last of the final reports was filed only on 21.10.08. This is also relevant as substantive satisfaction is entertained in the instant W.P(Crl.) No.312 of 2009 9 case not on the basis of verdicts rendered by the criminal courts but on the finding arrived at by the Investigating Officers after legal and proper investigation. In any view of the matter, we are unable to agree that the nexus or the live link can be said to have been snapped to warrant invalidation of the order of detention. The challenge on the second ground cannot also hence succeed. 13. No other grounds are raised. The above discussions lead us to the conclusion that the impugned order of detention does not warrant interference. 14. This Writ Petition is accordingly dismissed. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-