IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 27TH JANUARY 2009 / 7TH MAGHA 1930 WP(Crl.).No. 425 of 2008(S) ----------------------------------- PETITIONER: ------------------ SHOBA BABU, AGED 49 YEARS, W/O.BABU @ APPI BABU, CHAMBAKKAL HOUSE, PERUMPADAPPU, KOCHI. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SRI.M.H.HANIS RESPONDENS: ------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO DEPARTMENT OF HOME, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, ERNAKULAM. 3. THE DEPUTY POLICE COMMISSIONER, KOCHI. 4. THE CIRCLE INSPECTOR OF POLICE, PALLURUTHY. 5. SRI.V.K.SUNIL JACOB, CURRENTLY THE ASSISTANT POLICE COMMISSIONER, MATTANCHERY. ADD.D.G.P SRI.K.K.RAVINDRANATH FOR R1 TO 4 SRI.SAIBY JOSE KIDANGOOR FOR R5 SRI.K.ANAND FOR R5 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 12/1/2009, THE COURT ON 27/01/2009 DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF ORDER OF DETENTION DT. 15/11/2008. EXT.P2: TRUE COPY OF PETITION DT. 14/11/2008. EXT.P3: TRUE COPY OF PETITION DT. 15/11/2008. EXT.P4: TRUE COPY OF REASONS DT. 15/11/2008 BY THE DISTRICT COLLECTOR/ DISTRICT MAGISTRATE, ERNAKULAM. EXT.P5: TRUE COPY OF COMMUNICATION DT. 10/12/2008 BY C.I. OF POLICE, PALLURUTHY. RESPONDENTS' EXHIBITS: EXT.R2(A): TRUE COPY OF G.O.RT.3986/2008/GAD DT. 8/5/2008. ANNEXURE A : COPY OF ARREST MEMO PREPARED AT THE TIME OF ARREST OF LENIN. A. K. Basheer & Thomas P. Joseph, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P (Cr.) No. 425 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of January, 2009. Judgment Basheer, J: The short question that arises for consideration in this writ petition is whether Ext.P1 order of detention issued by the District Collector, Ernakulam under section 3(2) of the Kerala Anti Social Activities (Prevention) Act, 2007 (the Act, for short) is legally sustainable and valid. 2. Petitioner is the mother of the detenu, Sri.Lenin who is a resident of Perumpadappu within the limits of Palluruthy Police Station. Petitioner contends that her son was taken into custody at about 6.45 p.m. on November 14, 2008 by a Police Constable named Rajesh and two other police men who can be identified. Sri. Lenin was taken in a blue Maruti van initially to Palluruthy Police Station and later he was transferred to Thoppumpady Police Station on the same night. Shortly after the arrest of Sri. Lenin, petitioner submitted Ext.P2 complaint addressed to the Director General of Police, Thiruvannathapuram with notice to the Minister for Home and City Police Commissioner, Ernakulam On the next day morning viz., November 15, 2008 petitioner preferred a petition under Section 97 of the Code of Criminal Procedure before the District Magistrate, Ernakulam (District Collector) praying for a direction to the Station House Officer, WP(Cr).425/08 2 Palluruthy to search and produce Sri. Lenin before the court and set him at liberty. Ext.P3 is stated to be the true copy of the said petition filed under section 97 of the Code. 3. The specific case of the petitioner is that Ext.P1 order of detention under section 3(2) of the Act was issued by the District Collector, the Authorised Officer, some time late in the evening on November 15, 2008 and purportedly served on the detenu on that day. The detenu was also served with the grounds for his detention, a copy of which is on record as Ext.P4. 4. It is contended by the petitioner that the arrest and detention of her son Sri. Lenin is ex facie illegal, vitiated and in violation of the rights guaranteed under Articles 14, 19, 21 and 22 the Constitution of India. Ext.P1 order was cooked up by the respondent in order to cover up the illegal arrest and detention. 5. It is further contended that Ext.P1 order has been issued without any application of mind, since the Deputy Police Commissioner is seen to have submitted his report recommending detention of Sri. Lenin only on November 15, 2008 and on the same day itself the Authorised Officer is alleged to have issued Ext.P1 order. This will clearly show that there was no WP(Cr).425/08 3 application of mind. 6. The other contention raised by the petitioner is that the detenu will not come within the definition of “known rowdy” as defined under section 2(p) of the Act. 7. Separate counter affidavits have been filed by respondents 1, 2 and 5. A statement on behalf or respondent No.4 has also been filed by one of his colleagues, Circle Inspector of Police, Mattancherry. These respondents, while denying the allegations in the writ petition have asserted that the order of detention was issued keeping in view the antecedents of the detenu and his criminal track record. 8. Respondent No.2, the Authorised Officer, has also specifically denied the allegation that the order of detention was passed without any application of mind. It is further contended that detention has been ordered based on valid grounds. According to respondent No.2, all the crimes committed by the detenu along with his associates are acts of a hardened criminal causing harm to the life and property of the public. The Police report revealed that there was every possibility of his gang attacking a rival gang. It is further asserted that the detenu is a “known rowdy” as defined in Section 2(e)(iii) of the Act. The Authorised Officer has also stated that WP(Cr).425/08 4 Ext.P1 order was passed after making a detailed and independent analysis of the materials available on record by the Deputy Commissioner of Police. The Authorised Officer has also denied the allegation that Ext.P1 order was passed after filing of Ext.P3 application by the petitioner for issue of a search warrant under Section 97 of the Code while the detenu was in illegal detention and in order to avoid any legal action against erring Police officers. 9. Respondent No.1 has stated in his counter affidavit that the Government had approved the order of detention after a careful evaluation of the entire documents received from the Authorised Officer. It is further stated that the matter has been referred to the Advisory Committee for its opinion as provided under section 9 of the Act. 10. In his counter affidavit, respondent No.5 who has been impleaded in the writ petition in his personal capacity, has denied all the personal allegations made against him. According to this respondent, the detenu and his brother are rowdies operating in Perumpadappu area. While referring to the various crimes registered against the detenu , it is contended by this respondent that the detention of Sri.Lenin is absolutely necessary for the safety of the public. WP(Cr).425/08 5 11. As mentioned earlier, Ext.P1 order of detention has been impugned by the petitioner on various grounds referred to above. The primary contention urged by Sri.K.Ramkumar, learned senior counsel is that Ext.P1 order was issued by the Authorised Officer in order to cover up the illegal detention of Sri.Lenin since 6.45 p.m. on November 14, 2008. As has been noticed already, the specific case of the petitioner is that Sri.Lenin was taken into custody by Police Constable Rajesh and two other identifiable constables. Sri.Lenin was taken in a blue Maruti van to Palluruthy Police station. Thereafter he was shifted to Thoppumpady Police station immediately, when petitioner had engaged a lawyer to help her to find out the whereabouts of her son. It is further contended by the petitioner that she had preferred Ext.P2 complaint before the Director General of Police in the evening on the same day itself. On the next day morning she filed a petition under section 97 of the Code. Thus it is the specific case of the petitioner that her son was taken into custody by the Police at about 6. 45 p.m. on November, 2008 and Ext.P1 order of detention was allegedly issued by the Authorised Officer only on the next day, and that too late in the evening. 12. It is significant to note that none of the respondents in their WP(Cr).425/08 6 respective counter affidavits has adverted to the above specific allegation. It is true that respondent No.5 in his counter affidavit has stated that Sri.Lenin was arrested by respondent No.4 at 6.30 p.m. on November 15, 2008 in connection with the crime registered under section 3 of the Act. This respondent has further denied the allegation that the detenu was illegally taken into custody on the previous day. There is no reference to the blue Maruti van. Similarly nothing is stated as to whether a constable by name Rajesh was on duty on that day in the Police station concerned . In our view, this aspect assumes importance for various reasons. 13. There is yet another aspect of the matter. Respondent No.4, the Circle Inspector of Police, Palluruthy Police station has not chosen to file a counter affidavit in the case. However very belatedly on January 7, 2009 when hearing of the case had actually commenced, a “statement” was filed on behalf of respondent No.4 by the Circle Inspector of Police, Mattancherry stating that Sri.Lenin “was arrested by the Police only on 15/11/2008 and not on 14/11/2008.” The Officer who filed the statement has mentioned that he is holding additional charge of respondent No.4 “now”. Admittedly, the then officer in charge is still in service. There is no case for anybody that the then Circle Inspector, Palluruthy who was in WP(Cr).425/08 7 charge of Palluruthy Police station had been transferred to any other station. Nothing prevented the said officer in placing an affidavit on record. More significantly, the Officer in charge of the Police station was bound to explain as to whether Police Constable Rajesh was on duty on the crucial date or not. In our view, the silence maintained by the respondents on this crucial aspect looms large in the case. 14. The Additional Director General of Prosecution had made available the relevant files both from the office of respondent No.1 and respondent No.2 . In the file maintained by the office of respondent No.2, it is seen that the relevant entry relating to this case appears at page No.81. In the said entry reference is made to the report dated 15/11/2008 received from the Deputy Commissioner of Police, Kochi City. The note put up by the office before the Authorised Officer reads thus: “Submitted Ref: Report dt. 15.11.08 of the Dy.Commr. of Police, Kochi city. Please see the ref. cited. As per the ref., it has been requested to issue detention orders against Sri.Lenin, S/o.Appi Banu. If agreed, draft detention order put up for approval. Sd/- Dss. Sd/- JS(M) Sd/-ADM Sd/-DM. 15/11/08 15/11/08 16/11/08” It is seen that the Authorised Officer, the District Magistrate, had put the WP(Cr).425/08 8 signature only on November 16, 2008. 15. Significantly in Ext.P1 the Authorised Officer has not put any date below the signature. On the left hand side, the figure 15 alone is put in ink. It is true that the detenu has put his thumb impression and signature in Ext.P1 order endorsing that the order has been read out and translated to him in Malayalam and that he had received the copy. Below this endorsement he has put the date as November 15, 2008. But it has to be remembered that the detenue was under detention on that day. 16. More importantly, the specific case of the petitioner is that the detenue had been illegally taken into custody on the previous day itself. Therefore the date allegedly written by the detenu as 15/11/2008, under the endorsement referred to above may not have much significance. 17. In this context it may also be noticed that petitioner had filed Ext.P3 application under Section 97 of the Code on November 15, 2008. Respondent No.2 has no case that Ext.P3 application was not received in the office on that day. Further, the photocopy of the application produced from the office of respondent No.2 also shows that some officer in that office had put his initial and date on the instant day itself, though time of receipt of the application is not indicated. It goes without saying that office of respondent WP(Cr).425/08 9 No.2 would not have entertained such an application if it had been filed after the office hours. We do not find any reason to assume that the petitioner would have filed Ext.P3 application under Section 97 of the Code anticipating her son's arrest at about 6.30 p.m. on that day. 18. According to respondents 4 and 5, the detenu was admittedly taken into custody only at 6.30 p.m. on November 15, 2008. This can be seen from Annexure A arrest memo also, produced along with the statement filed on behalf of respondent No.4 at the fag end of the hearing. In the file produced by respondent No.2, there is an entry with regard to Ext.P3 application at page 81. Significantly the order passed by respondent No.2 on that petition reads only thus: “Inform that person has been detained under KAPPA” The said order is seen to have been passed by respondent No.2 on November 22, 2008. If in fact petitioner had filed Ext.P3 application even before the arrest of her son, the said application ought to have been rejected on the ground that it was premature. We have referred to this aspect only to indicate that the stand taken by respondents 2 to 5 that the detenu was taken into custody at 6.30 p.m. on November 15, 2008 cannot be believed. WP(Cr).425/08 10 Keeping in view the material aspects referred to above, we are prima facie satisfied that the contention raised by the petitioner as regards the detention of her son even before issuing Ext.P1 order of detention is wholly valid and tenable. 19. A question may arise as to whether Ext.P1 order can be declared as illegal and invalid, assuming the detenu had been taken into custody even before the said order had been issued. It may be argued that the detention of the petitioner's son under the Act had come into effect from the moment the order had been executed. But respondents do not have a case that the detenu was taken into custody and detained in connection with any other case. Therefore since we have already found that the detenu had been taken into custody in the evening of November 14, 2008 itself, it necessarily follows that such detention, if proved to be true, cannot relate to Ext.P1 order which was passed subsequently on the next day. Therefore any legal validity or sanctity cannot be attached to Ext.P1 order, since in the eye of law, an order of detention cannot be issued against a person who has already been detained. An illegal detention cannot be legalised by issuing a subsequent order. Personal liberty of a citizen as enshrined in Article 21 of the Constitution is a very precious and valuable right which WP(Cr).425/08 11 cannot be trampled upon through an arbitrary and high handed action. We do not propose to deal with the above aspect any further for obvious reasons. 20. We do not deem it necessary to consider the other contentions raised by the petitioner with regard to the validity of the impugned order. We leave those issues open, in view of the answer given by us on the primary issue in the preceding paragraphs of this judgment. For the foregoing reasons, we quash Ext.P1 order. Sri.Lenin, the detenu shall be released from custody forthwith, if his detention is not required in connection with any other case pending against him. It is made clear that this order will not preclude the right of the authorities concerned to issue appropriate fresh orders in exercise of the powers under the Act, if situation so warrants. The writ petition is allowed in the above terms. A.K. BASHEER Judge Thomas P. Joseph an. Judge.