IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 WP(Crl.).No. 265 of 2008(S) ---------------------------------------- PETITIONER: --------------------- ELIZEBATH GEORGE, AGED 80 YEARS, W/O GEORGE, POKKATH HOUSE, ERUMATHALA P.O., ALUVA, CHOONDY, ERNAKULAM DISTRICT. BY ADV. SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW RESPONDENTS: ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY (HOME AFFIARS), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, PALAKKAD. 3. THE SUPERINTENDENT OF CENTRAL PRISON, VIYYOOR, THRISSUR. 4. THE DISTRICT SUPERINTENDENT OF POLICE, PALAKKAD. ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.K.K.RAVINDRANATH FOR R1 TO 4 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 23/09/2008 ALONG WITH WP(CRL.)NO.266 OF 2008 AND WP(CRL.)NO.267 OF 2008, THE COURT ON 07/10/2008 DELIVERED THE FOLLOWING: Kss WP(Crl.)NO.265/2008 S APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER OF DETENTION NO.S1-2008/30076/9(1) DTD. 25/06/2008 PASSED BY THE 2ND RESPONDENT. EXT.P2: COPY OF THE GROUNDS OF DETENTION ISSUED BY THE 2ND RESPONDENT. EXT.P3: COPY OF THE MEMO FOR EXECUTING THE ORDER OF DETENTION, REFERENCE NO.S1-2008/30076/9 DTD.25/06/2008 PASSED BY THE 2ND RESPONDENT. EXT.P4: COPY OF THE ORDER DTD. 6/05/2008 IN B.A.NO.2795/2008 PASSED BY THIS HON'BLE COURT. EXT.P5: COPY OF THE ORDER DTD. 20/05/2008 IN CRL.M.P.NO.2702/2008 PASSED BY THE JUDL.FIRST CLASS MAGISTRATE COURT-I, PALAKKAD. EXT.P6: COPY OF THE ORDER DTD. 30/05/2008 IN CRL.R.P.NO.46/2008 PASSED BY THE SESSIONS COURT, PALAKKAD. EXT.P7: COPY OF THE COMMON ORDER DTD. 30/05/2008 IN CRL.M.P.NOS. 1672/2008 & 1711/2008 PASSED BY THE SESSIONS COURT, PALAKKAD. EXT.P8: COPY OF THE COMMON ORDER DTD. 16/06/2008 IN CRL.M.P.NO. 1843/2008 & 1844/2008 PASSED BY THE SESSIONS COURT, PALAKKAD. EXT.P9: COPY OF THE COMMON ORDER DTD. 15/07/2008 IN CRL.M.P.NOS. 1737/2008 & 1750/2008 PASSED BY THE SESSIONS COURT, MAVELIKKARA. EXT.P10: COPY OF THE OBJECTION TO THE ORDER OF DETENTION PASSED AGAINST THE PETITIONER FILED BY THE COUNSEL FOR THE PETITIONER BEFORE THE CHAIRMAN, ADVISORY BOARD, KERALA ANTI-SOCIAL ACTIVITIES (PREVENTION) ACT 2007, DTD. 25/07/2008. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss WP.(Crl.)Nos.265, 266 & 267/2008 -1- P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(Crl.) Nos.265, 266 and 267 of 2008-S - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of October, 2008. JUDGMENT Ramachandran Nair, J. These writ petitions are filed seeking for the issuance of a writ of habeas corpus for the production of detenus, viz. Sri. Jojo George, Mujeeb Rahiman and Sheen Mondy Jose @ Saju; to release them and; to quash Ext.P1 order of detention. Since these writ petitioners raise common issues, they are heard together and are disposed of by a common judgment. 2. We have heard the learned Senior Counsel Sri. C.C. Thomas on behalf of the petitioners and the learned Additional Director General of Prosecutions, Sri. K.K.Ravindranath on behalf of the respondents. 3. The short facts leading to the disposal of the cases are the following:- In W.P.(Crl) No.265/2008, the detenu is one Jojo George; in W.P. (Crl) No.266/2008, the detenu is one Mujeeb Rahiman and in W.P.(Crl) No.267/2008, the detenu is one Sheen Mondy Jose @ Sabu. The orders of detention are dated 25/06/2008, passed by the District Magistrate and WP.(Crl.)Nos.265, 266 & 267/2008 -2- District Collector, Palakkad. They have been issued under the power conferred on the said Officer by the Kerala Anti-Social Activities (Prevention) Act, 2007, (hereinafter referred to as the 'Act'). It is stated in the respective orders that the detenus are accused in Crime Nos.26/2008, 181/2006 and 663/2007 of various police stations. The sum and substance of the allegation is that the detenus are arrayed as accused in different cases registered as Crime Nos.26/2008, 181/2006, 263/2006 and 663/2007 for smuggling illegal spirit. They have been aiding, abetting, conspiring, executing smuggling of spirit and distributing spirit in Kerala with scant respect to the law of the land . It is alleged that thus they have been indulging in activities of transporting and distribution of spirit in violation of the Abkari Act and are active members of an organised mafia involved in smuggling of spirit into Kerala from neighbouring States and are 'Known Goondas under Section 2(c) of the Act. 4. The learned Senior Counsel for the petitioners while attacking the orders of detention contended that the detenus will not come under the definition of “known goonda” as per Section 2(o)(ii) of the Act, since there is no seizure of alcohol/spirit from the detenu in the presence of the witnesses. It is also contended that they cannot be termed as “known rowdy” under Section 2(p) of the Act also. It is contended that going by WP.(Crl.)Nos.265, 266 & 267/2008 -3- Section 34 of the Abkari Act, only a person found committing an offence punishable under the said Act alone is liable to be arrested and if at all the allegations are correct, even then it is to be conceded that the detenus were not present at the time of seizure of spirit in the four cases relied upon by the respondents and there is also no evidence to show that the contraband seized were under the control/possession of the detenus. It is on this premise that the subjective satisfaction arrived at by the detaining authority is attacked. It is also contended by relying upon Exts.P4 to P9 orders passed by this Court and by the Sessions Court relating to the applications for bail, etc. of the respective detenus that it has been found therein that there are no materials to connect the accused with the crime. It is submitted that regular bail has been granted under Section 41A of the Abkari Act after hearing the prosecutor also. It is therefore contended that the detaining authority has not applied its mind to the findings rendered by the Sessions Court in those orders which have been passed after perusal of the case diary also. It is therefore submitted that as these are materials which ought to have been considered by the detaining authority, failure to consider the orders and the findings rendered by the Sessions Court in those orders will result in total non application of mind. It is therefore contended that there is nothing to connect the detenus with the crimes concerned and in these WP.(Crl.)Nos.265, 266 & 267/2008 -4- cases as no charge-sheet has been filed, no report could have been forwarded by the Police Officer concerned to the Superintendent of Police to the detaining authority to issue the orders of detention. Our attention was invited to the relevant provisions of the Act to contend for the position that in the absence of the final report by the Investigating Officer under Section 173(2) of the Code of Criminal Procedure there could not have been any basis for the issuance of the order of detention. During the arguments, it is also pointed out that there is a violation of Section 7(2) of the Act as all the relevant materials on the basis of which the detention has been found necessary have not been communicated to the detenus. 5. Per contra, the learned Additional Director General of Prosecutions submitted that the detenus in their representations have themselves produced the orders on the bail applications and hence the non supply of the same is not at all material. It is contended that herein there were cogent materials by way of confession statement of the driver and the confession of the accused/detenus of their involvement in the respective cases and these materials would justify the orders of detention. It is also submitted that copies of relevant documents relied upon by the detaining authority have been supplied to the detenus and there is no violation of either Section 7(2) of the Act or compliance of natural justice as enjoined by WP.(Crl.)Nos.265, 266 & 267/2008 -5- Article 22(5) of the Constitution of India and therefore, the action does not suffer from any infirmity. It was also submitted that as far as the provisions of the Act in question are concerned there need not be any final report by the Investigating Officer for enabling the Superintendent of Police to submit his report under Section 3(1) of the Act. It is pointed out that no less a person that the Superintendent of Police has been conferred with power under Section 3(1) of the Act to furnish information to the Government or the authorised officer to exercise the power to order detention. The Superintendent of Police was satisfied himself about the materials forwarded by his subordinate Police Officer who has investigated the case which formed the basis of his report to the detaining authority. it is submitted that the confession statements of the driver before the police and of the detenus themselves were material in the sense that they will connect them to the commission of the crimes and, therefore, the orders of detention do not suffer from any infirmity. It is argued that a final report filed under Section 173(2) of the Code of Criminal Procedure is not required for satisfying the conditions to invoke the relevant provisions of the Act. 6. Before going to the details of the arguments, we will extract herein Section 2(o) of the Act which defines 'known goonda' including the proviso and the explanation. WP.(Crl.)Nos.265, 266 & 267/2008 -6- 2(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: 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 WP.(Crl.)Nos.265, 266 & 267/2008 -7- definition of known rowdy referred to in clause (p) of Section 2 can also be taken into consideration as an instance, along with other cases, for deciding whether the person is a known goonda or not.” 7. The following decisions of the Apex Court have been relied upon by the learned counsel on either side in support of their arguments: Sanjeev Kumar Aggarwal v. Union of India and others (AIR 1990 SC 1202), Kamarunnisa v. Union of India and another (AIR 1991 SC 1640), Union of India v. Paul Manickam and another (AIR 2003 SC 4622), State of T.N. and another v. Kethiyan Perumal ((2004) 8 SCC 780), Senthamilselvi v. State of T.N. And another ((2006) 5 SCC 676), Sunila Jain v. Union of India ((2006) 3 SCC 321), Usha Agarwal v. Union of India and others ((2007) 1 SCC 295), Adishwar Jain v. Union of India and another ((2006) 11 SCC 339), M. Ahamedkutty v. Union of India and another ((1990) 2 SCC 1), Icchu Devi Choraria v. Union of India and others ((1980) 4 SCC 531), Mukesh Tikaji Bora v. Union of India and others ((2007) 9 SCC 28), Kartic Chandra Guha v. The State of West Bengal (AIR 1974 SC 2149), Kamarunnissa v. Union of India and another ((1991 SCC (Crl.) 88) and Smt. Poonam Lata v. M.L. Wadhawan and another (AIR 1987 SC 2098).” 8. First we will consider the question as to the requirements of Section 2(o)(ii) of the Act. This is relevant to consider whether the detenus WP.(Crl.)Nos.265, 266 & 267/2008 -8- satisfy the definition of “known goonda”. The section has two limbs, the proviso and its explanation. Sub Section (i) is not applicable here because the detenus have not been found guilty by any competent Court. To satisfy clause 2(o)(ii) “the detenu should be one who had been found in any investigation or enquiry by a competent police officer................. to have committed any act within the meaning of the term 'goonda' as defined in clause (j) of Section 2.” To attract the proviso there should be a report filed by the Police Officer before a lawful authority in respect of an offence consequent to the seizure, in the presence of witnesses, of alcohol, spirit, etc. If there is such a report, such an offence can also be included for consideration though the report had resulted from an action initiated by a Police Officer. Here, the argument raised by the learned Senior Counsel for the petitioners is that the seizure of alcohol, spirit, etc. should be from their possession, in the presence of witnesses and herein, as the seizure has not been effected from their possession in the presence of witnesses, the said proviso is not attracted. Further, reliance is placed on Section 34 of the Abkari Act. We are not impressed by the above argument. The proviso lays emphasis on the seizure of alcohol, spirit, etc. in the presence of witnesses and it is not conditioned that the alleged offender should be apprehended from the scene itself followed by seizure in the presence of WP.(Crl.)Nos.265, 266 & 267/2008 -9- witnesses. In many cases either the driver or the person concerned may be escaping from the scene even before any seizure is effected and to insist that the seizure should be in the presence of such accused in all cases to attract the proviso, cannot be countenanced. What is provided is the report filed by a police officer before a lawful authority “consequent to the seizure in the presence of witnesses, of alcohol, spirit, etc.” That alone will satisfy the legal requirement to attract the proviso. Therefore, we reject the said argument raised on behalf of the petitioners. 9. Learned Senior Counsel for the petitioners relying upon Exts.P4 to P9, vehemently argued that in the light of the findings rendered by this court in Ext.P4 and by the Criminal courts concerned in Exts.P5 to P9, it is a case where there is no material to connect the accused with any of the crime alleged and thus there is total non- application of mind in passing the orders of detention. It is pointed out that the finding rendered by the Sessions Court in Ext.P6 and the other orders Exts.P7 to P9 will show that the court was of the view that there are no materials to connect the accused with the crime. It is pointed out that the said finding has been arrived at after perusing the case diary also. In para 9 of Ext.P6, while dismissing the Crl. Revision Petition filed by the State, it is observed by the Sessions Court that no material has been produced to prove the involvement of the accused WP.(Crl.)Nos.265, 266 & 267/2008 -10- persons before the Magistrate or before that court even during the hearing of the revision petition. Our attention was also drawn to the observation by the Sessions Court that even though the driver of the vehicle involved in Crime NO.181/2006 was arrested on the spot itself, the police has no case that any confession statement of the driver implicating the petitioners, was obtained. In paragraph 7 of Ext.P7 judgment, it is observed by the Sessions Court that the prosecution has not produced any material before the court to connect the accused with the crime. Reference therein is in respect of Crime No.26/2008 of Valayar Police Station. Ultimately, it was observed that the case is of the year 2006 and till now the police has no case that the petitioners are involved in the case and accordingly they were granted bail on certain conditions. In para 8 also, there is a finding to the effect that “there is no material produced by the prosecution to prove that their continued detention in prison is essential for completing the investigation in the case.” Thus, it is argued that there are no materials to connect the detenus with the crimes and the findings rendered by the competent criminal courts ought to have been considered by the detaining authority before passing the orders of detention. It is therefore submitted that there is no basis for the subjective satisfaction arrived at by the authority concerned. It is stated that the attempt by the authority concerned is malafide in the WP.(Crl.)Nos.265, 266 & 267/2008 -11- sense that the order of detention has been passed to nullify the orders granting bail to them. It is also submitted that going by the legal effect of Section 41-A of the Abkari Act, an application for bail will be disposed of by the court only after giving an opportunity to the Public Prosecutor to oppose the same and going by Sub-section (b)(ii) of Section 41-A of the Abkari Act, bail can be granted only if the court is satisfied that there are reasonable ground to believe that he is not guilty of such offence and he is not likely to commit any offence while on bail. In the light of the above provision, it is contended that this is a clear case where attempts have been made to over-reach the orders passed by the competent criminal courts. 10. In reply, learned Addl. Director General of Prosecutions submitted that the fact that the petitioners have obtained bail was within the knowledge of the detaining authority as is evident from the clear mentioning of the said fact in Ext.P1 itself and in the Ground of detention, Ext.P2. It is pointed out that mere granting of bail by the criminal court will not prevent the detaining authority in passing an order of detention and there is no legal bar for the same. It is contended that the detaining authority was satisfied from the materials produced before it, of the grounds for detaining the detenus under Section 3 of the Act in order to prevent them from committing any such acts alleged as their activities have become potential WP.(Crl.)Nos.265, 266 & 267/2008 -12- threat to maintenance of peace and public order in the society. It is further pointed out that even though the Sessions Court has found in various orders that no materials have been made available to connect the accused, in fact there were materials like confession statement of the driver who was arrested earlier and also of the accused detenus. It is therefore submitted that the findings rendered by the Sessions Court in Exts.P6 to P9 about the absence of materials, is wrong and the State had taken steps to challenge those orders before this court. In fact, before completion of the hearing it was submitted by the learned counsel that already Crl.M.Cs. have been filed before this court on which notice has been ordered to the accused. It is stated that the reasons for not producing the case diary had also been explained before the Sessions Court in the objection filed by the Public Prosecutor and thus, it is not a case where there was absence of materials to connect the accused with the crime. It is further submitted that the detaining authority has considered the entire materials including the confession statement as mentioned above, while passing the order of detention and he has applied his mind to all the circumstances also. 11. It is clear from Ext.P1 and P2 orders that the detaining authority was aware that the detenus have been granted bail in Crime Nos.26/2008 and 181/2006. It is further stated that there is every likelihood of the WP.(Crl.)Nos.265, 266 & 267/2008 -13- detenus getting bail in Crime No.663/2007 of Kayamkulam Police Station also. Thus, it is not a case where the authority concerned was unaware about the orders granting bail. Learned Addl. Director General of Prosecutions is well founded in relying upon the principles stated by the Apex Court in Kartic Chandra Guha v. The State of West Bengal and others (AIR 1974 SC 2149) to contend for the position that even if there is any likelihood of releasing the accused on bail, it is open to the detaining authority to pass orders of detention. It was held in para 4 of the above judgment that the District Magistrate was entitled to pass the order of detention even in such a case to prevent the accused from acting in a manner prejudicial to the maintenance of 'public order'. Similar is the circumstance herein also. Even though the accused had been granted bail in two cases the likelihood of the detenus getting bail and indulging in smuggling of spirit, etc. had been considered by the detaining authority and there is no legal bar in passing the orders of detention. This principle has been reiterated in Sanjeev Kumar Aggarwal v. Union of India and others (AIR 1990 SC 1202) also. Therefore, we are of the view that the fact that the applications for bail have been allowed in two cases and there was possibility of getting bail in Crime No.663/2007 will not deter the detaining authority from passing an order of detention, if circumstances existed. The subjective WP.(Crl.)Nos.265, 266 & 267/2008 -14- satisfaction of the authority concerned is not a matter for judicial review by this court in these proceedings and this court will not be justified in substituting our opinion with that of the detaining authority. Therefore, the argument raised by the petitioners that there is total non-application of mind is not correct and we reject the said argument. It is true that under Section 41-A of the Abkari Act, the court has to satisfy, while considering the application for bail, that there are reasonable ground to believe that he is not guilty of such offence and that he is not likely to commit any offence while on bail. In the light of the relevant provisions of the Act there is no bar for the detaining authority in passing an order of detention, as what is relevant is only whether the detention is justified on the facts placed before the detaining authority. The principles reiterated by the Apex Court in Kamarunnissa v. Union of India and another (AIR 1991 SC 1640) is apposite to the context. It was held in para 13 of the judgment that “from the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in WP.(Crl.)Nos.265, 266 & 267/2008 -15- all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court.” 12. The next point is whether the provisions of Section 2(o)(ii) of the Act are satisfied in this case. The argument raised is that there should have been finding in an investigation against the detenu and normally in a criminal investigation under the provisions of the Code of Criminal Procedure, only after conclusion