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 7TH APRIL 2010 / 17TH CHAITHRA 1932 WP(C).No. 8515 of 2010(L) ------------------------- PETITIONER : --------------- MANIKANTAN @ BIJU, S/O.SASIDHARAN NAIR, NEDIYAVILA VEEDU, THINAVILA, KEEZHATTINGAL P.O., THIRUVANANTHAPURAM DIST. BY ADV. SRI.M.R.RAJESH SMT.A.K.PREETHA RESPONDENTS: --------------- 1. THE STATE OF KERALA REP. BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, OFFICE OF THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 3. THE SUPERINTENDENT OF POLICE (RURAL), THIRUVANANTHAPURAM. 4. THE SUB INSPECTOR OF POLICE, KADAKKAVOOR, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.P.RAVINDRA BABU FOR R1-R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- W.P.(C) No. 8515 of 2010-L ------------------------------------------------- Dated this the 7th day of April, 2010 JUDGMENT Basant,J. The petitioner herein challenges an order of preventive detention which, he apprehends, has already been passed and is about to be executed against him under Sec.3 of the Kerala Anti- Social Activities (Prevention) Act, 2007 (hereinafter referred to as `the KAAPA'). 2. According to the petitioner, there are four cases registered against him, the details of which are shown below: W.P.(C) No. 8515 of 2010 -: 2 :- Sl. No. F.I.R.No./ Date/Rank Date of Incident C.C.No./ Court Sections Nature of offence 1 54/07 23.02.07 2nd accused 23.02.07 339/07 JFMC-I, Varkala 4(1)A r/w 21(1) - the Mines Act 4 persons were seen illegally loading river sand into a Lorry and they fled. The driver was arrested and revealed that it was for the petitioner and that the Lorry is his. A1 to A5 named in FIR. 2 127/07 08.05.07 2nd accused 08/05/07 625/07 JFMC-I, Varkala 4(1)A r/w 21(1) - the Mines Act 4 persons were found illegally mining river sand and they fled. 4 identifiable persons are made accused in FIR. 3 16/09 08.01.09 4th accused 08/01/09 166/09 JFMC-I, Varkala 12 r/w 20 - Sand Act 4 women were found illegally mining river sand and they fled. A1 was arrested and revealed that the petitioner will sell the sand if mined by them. All 4 accused named in FIR. 4 217/09 31.05.09 sole accused 31/05/09 Final Report filed C.C.No.721 of 2009 pending before the JFCM-I, Varkala. 20 & 21 - Sand Act Illegally mined sand was loaded in a Lorry. On seeing police they unloaded the same. When police came nearby they fled. Enquiry revealed that it was the petitioner and others who fled. Petitioner alone named in FIR. 3. According to the petitioner, on the basis of the above four cases, the petitioner has been branded as a `known goonda' and an order of detention under Sec.3 of the KAAPA has been W.P.(C) No. 8515 of 2010 -: 3 :- passed against him. According to him, the order of detention bears the number - S-13.66533/09 and is dated 23/9/09. It has not been executed against him; but he apprehends imminent execution of the said order of detention. 4. Various grounds have been raised to support and substantiate the pre-detention challenge against the order of preventive detention under Sec.3 of the KAAPA. We do not think it necessary to advert to the various grounds of challenge in detail. We need advert only to two specific grounds of challenge that have been raised. They are: (i) In the light of the dictum in Vinija v. State of Kerala (2009 (3) KLT 110), none of the four cases can be reckoned as relevant or sufficient to categorize the petitioner as a 'known goonda' under Sec.2(o) of the KAAPA. (ii) Cognizance taken in the cases - Sl.Nos.1 to 3 referred above, has been quashed by this Court in exercise of its jurisdiction under Sec.482 of the Cr.P.C. as per Exts.P5, P6 and P7 orders. 5. We shall now proceed to consider these two grounds. An order of detention can be passed under Sec.3 of W.P.(C) No. 8515 of 2010 -: 4 :- the KAAPA only against a 'known goonda' or a 'known rowdy'. In the instant case, the allegation is that the petitioner is a known goonda. A 'goonda' is defined in Sec.2(j) of the KAAPA and a 'known goonda' is defined in Sec.2(o) of the KAAPA. We extract Sec.2(o) of the KAAPA below: “(o) “known goonda” means a goonda who had been, for acts done within the previous seven years as calculated from the date of the order imposing any restriction or detention under this Act,-- (i) found guilty, by a competent Court or authority at least once for an offence within the meaning of the term 'goonda' as defined in clause (j) of Section 2; or (ii) found in any investigation or enquiry by a competent police officer, authority or competent Court on complaints initiated by persons other than police officers, in two separate instances not forming part of the same transaction, to have committed any act within the meaning of the term 'goonda' as defined in clause (j) of Section 2: W.P.(C) No. 8515 of 2010 -: 5 :- Provided that an offence in respect of which a report was filed by a Police Officer before a lawful authority consequent to the seizure, in the presence of witnesses, of alcohol, spirit, counterfeit notes, sand, forest produce, articles violating copyright, narcotic drugs, psychotropic substances, or currency involved in hawala racketeering may be included for consideration though the report had resulted from an action initiated by a police officer. Explanation.-- An instance of an offence involving a person, which satisfies the conditions specified in the definition of known rowdy referred to in clause (p) of Section 2 can also be taken in to consideration as an instance, along with other cases, for deciding whether the person is a known goonda or not.” 6. Before invoking the powers under Sec.3 of the KAAPA to order detention, the detaining authority must be satisfied that the proposed detenue is a known goonda. To fall within the sweep of the expression 'known goonda', he must satisfy Sec.2(o) W.P.(C) No. 8515 of 2010 -: 6 :- of the KAAPA. Under Sec.2(o)(ii) of the KAAPA, a person would fall under the sweep of the expression 'known goonda' only if he has been found in any investigation or enquiry by a competent police officer, authority or competent court on complaints initiated by persons other than police officers in two separate instances to have committed any act within the meaning of the term 'goonda'. The proviso contemplates that even when the proceedings are initiated on the basis of a complaint/report of a police officer, such a case can be taken into reckoning if such proceedings are initiated consequent to seizure in the presence of witnesses of contraband articles including sand. In Vinija (supra) the question that arose for consideration was whether the seizure in the presence of police witnesses can be taken into reckoning to bring a person within the sweep of the expression 'known goonda' under the proviso to Sec.2(o)(ii) of the KAAPA. 7. It was held in that decision that unless seizure is effected in the presence of non-police witnesses, such case can cannot be taken into reckoning for the purpose of including a person within the sweep of the expression 'known goonda'. It is W.P.(C) No. 8515 of 2010 -: 7 :- admitted that in all the four cases, police witnesses have attested the seizure and in no case has more than one non-police witness attested the seizure mahazar. The seizure was not effected in the presence of non-police witnesses. 8. The learned Government Pleader accepts that the decision in Vinija (supra) has not been challenged and if the said decision were to hold the field, all the four cases cannot be taken into reckoning for the purpose of inclusion of the petitioner within the sweep of the definition 'known goonda'. 9. It therefore is evident that the order of detention under Sec.3 of the KAAPA on the basis of the four cases referred above is not legal, valid or justifiable. In the nature of the stand taken by the learned Government Pleader, it is not necessary for us to delve deeper into the facts. 10. We may now advert to the latter contention that cognizance taken in the three cases (Sl.Nos.1 to 3 above) have been quashed. It is pertinent to note that only the cognizance has been quashed and the materials indicate that the competent authority had conducted enquiry/investigation and had come to the conclusion that the petitioner is guilty of the offences W.P.(C) No. 8515 of 2010 -: 8 :- alleged against him. Cognizance taken in the three cases happened to be quashed for the short reason that cognizance was taken on the basis of a police report submitted by the competent authority and not a complaint filed by the competent authority. That is, of course, only a technical inadequacy and does not militate against the requirement insisted by Sec.2(o)(ii) of the KAAPA that the competent authority must have found the accused guilty of the offence. In the instant case the competent authority who happens to be a police officer also has come to the conclusion that the petitioner is guilty of the offence. Instead of filing a complaint, he had filed only police report and it is on that ground that the cognizance happened to be quashed under Exts.P5 to P7. 11. The learned Government Pleader submits that though cognizance has been quashed, there is no fetter on the power of the competent authority to initiate fresh proceedings by filing a complaint so that the court can take cognizance afresh on the basis of such a complaint. We find force in that contention. Exts.P5 to P7 cannot, at any rate, justify the contention that no order of preventive detention can be passed under Sec.3 of the W.P.(C) No. 8515 of 2010 -: 9 :- KAAPA. 12. The short question that survives for consideration is whether the pre-detention challenge of the order of preventive detention can be entertained. In Government of India & others v. Smt. Alka Subhash Gadia & Another (1992 (Suppl) 1 SCC 496) the Supreme Court had given the specific circumstances which courts should insist before a pre-detention challenge of an order of detention is entertained by the constitutional court. But the subsequent decision in Deepak Bajaj v. State of Maharashtra (AIR 2009 SC 628) has expanded the scope of such interference and it is trite that if the order of detention on the face of it is not justifiable, it would not be necessary, proper or just to compel the petitioner to suffer the order of preventive detention and to direct him to come to court only thereafter with a challenge. 13. In the instant case, we find that the order on the face of it is not justifiable or sustainable, inasmuch as the petitioner cannot admittedly be brought within the sweep of the expression 'known goonda' under Sec.2(o) of the KAAPA. We are satisfied that in tune with the principles laid down in Deepak Bajaj W.P.(C) No. 8515 of 2010 -: 10 :- (supra), this pre-detention challenge can be entertained. 14. In the result: (a) This writ petition is allowed. (b) Order of detention No.S-13. 66533/09 dated 23/9/09 issued by the 2nd respondent which has not been executed so far is quashed invoking our jurisdiction under Art.226 of the Constitution as explained in Deepak Bajaj (supra). 15. We may hasten to observe that the setting aside the order will not in any way fetter the rights of the competent authority, if any, to initiate criminal prosecution afresh in accordance with law in respect of the allegations raised in the four cases referred above. Sd/- R. BASANT (Judge) Sd/- M.C. HARI RANI (Judge) Nan/ //true copy// P.S. to Judge W.P.(C) No. 8515 of 2010 -: 11 :-