IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 10TH APRIL, 2008 / 21ST CHAITHRA, 1930 WP(Crl.).No. 54 of 2008(S) ------------------------------- PETITIONER: ---------------- JINI.K.V., AGED 29 YEARS, W/O.RENADEV, CHENNAMPARABIL HOUSE, P.O.EDAVILANGU, KODUNGALLUR, THRISSUR DISTRICT. BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA RESPONDENTS: ------------------- 1. STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT, (HOME & VIGILANCE) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, THRISSUR. 3. THE SUPERINTENDENT OF CENTRAL PRISON, VIYYUR. 4. THE SUB INSPECTOR OF POLICE, KODUNGALLUR POLICE STATION, THRISSUR. BY SPL. GOVERNMENT PLEADER & THE LIAISON OFFICER SRI.K.K.RAVEENDRANATH. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 10/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX (WP(Crl) No. 54 OF 2008) PETITIONER'S EXHIBITS: Ext.P1: Copy of the order of detention dtd.6.12.07. Ext.P2: Copy of the grounds of detention. Ext.P3: Copy of the Malayalam version of Ext.P2. Ext.P4: Copy of the preliminary report. Ext.P5: Copy of the F.I.R. in Crime No.87/2005 dtd.12.2.2005. Ext.P6: Copy of the FIR in Crime No.110/2005 dtd.13.2.2005. Ext.P7: Copy of the FIR in Crime No.522/2005 dtd.4.8.2005. Ext.P8: Copy of the FIR in Crime No.78/2005 dtd.4.3.2006. Ext.P9: Copy of the FIR in Crime No.634/2007 dtd.26.7.2007. Ext.P10: Copy of the order dtd.21.12.2007 from Government of Kerala. RESPONDENTS' EXHIBITS: Ext.R1(a): Copy of Govt.Letter dtd.3.1.2008. Ext.R1(b): Copy of Govt.Order dtd.20.2.2008. Ext.R2(a): Copy of the Memo for executing order dtd.6.12.2007. Ext.R2(b): Copy of the Jail Admission Authorisation dtd.6.12.2007. -True Copy- P.A.to Judge. P.R.RAMAN & V.K.MOHANAN, JJ. --------------------------------------------- W.P(Crl).No. 54 of 2008 --------------------------------------------- Dated this the 10th day of April, 2008 J U D G M E N T Mohanan,J: Challenging the detention of one Sri.Ranan @ Ranadeep who is the husband of the petitioner, she approached this Court by filing the above writ petition by invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India wherein the prayer is to issue a writ of habeas corpus directing the respondent to produce the detenu and to set him at liberty forthwith. It is also prayed for the issuance of a writ of certiorari to quash Exts.P1 and P10 orders. 2. The allegations and averments in the writ petition can be summarised as follows:- As per Ext.P2 order of detention issued by the second respondent in exercise of her powers under Sections 3 (1) and 3(2) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (Act 34 of 2007) (hereinafter referred to for short as 'the Act' only), the detenu was arrested and detained in the Central Jail, Viyyur, Thrissur WP(Crl) No.54 of 2008 :-2-: as per Ext.P1 Memo for executing order of detention. Ext.P3 is the Malayalam version of Ext.P2 order of detention. Ext.P4 is the copy of the preliminary report submitted by the Sub Inspector of Police, Kodungallur Police Station before the third respondent. It is the specific case of the petitioner that the copies of the documents furnished along with the order of detention were not legible and readable. Exts.P5 to P9 documents are produced to show that the same were not legible. Thus, according to the petitioner, by furnishing copies of the documents which are neither legible nor readable, the detenu was prevented from understanding the allegations and the materials which are relied on by the detaining authority and thereby denied an opportunity to make effective representation to the authorities concerned and thus, the detenu's right under Article 22 of the constitution of India has been violated. According to the petitioner, the detaining authority failed to independently evaluate the materials and come into a conclusion as to whether the detention order is WP(Crl) No.54 of 2008 :-3-: necessary, but she had simply followed the report of the sponsoring authority and issued the detention order. According to the petitioner, her husband will not come under the definition 'Known Rowdy'. The petitioner says that the second respondent overlooked the aspect that though five crimes are referred as the basis of passing the detention order, without going through the C.D.files, it may not be possible to conclude as to whether the person detained played any role at all in the incident. Neither the second respondent nor the third respondent has perused the F.I.R. and charge sheet so as to come into a conclusion as to whether the detenu's activities come under the purview of Section 2(p) and 2(t) of the Act. Therefore, the order under challenge is passed mechanically and without application of mind. According to the petitioner, the allegation that the husband of the petitioner was threatening the people and witnesses who are against him is not supported by any materials and such observations made by the authorities are tainted with malice. There is no WP(Crl) No.54 of 2008 :-4-: material to conclude that there is law and order situation which warranted passing of the detention order against the detenu. It is the further case of the petitioner that all the cases in which the husband of the petitioner is implicated as accused are only out of political enmity and the said order of detention is also issued due to extraneous consideration and political vengeance. Ext.P10 is the order by which the Government confirmed the order passed by the second respondent. It is stated that though the detenu had preferred a petition before the first respondent as well as the Advisory Board and the Advisory Board was requested to arrange the assistance of a lawyer of his choice, the same was denied. It was also pointed out that another detenu who belongs to CPM was released from the jail and according to the petitioner, the same will sufficiently show discrimination meted out against the petitioner's husband on the basis of political enmity. 3. Denying all the averments and the allegations contained in the writ petition and justifying the order of WP(Crl) No.54 of 2008 :-5-: detention passed by the second respondent and the order of confirmation issued by the first respondent, both of them have filed separate counter affidavits. In paragraph 4 of the counter affidavit of the second respondent, it is stated that she had received information from the third respondent about the involvement of the detenu in five criminal cases and the report contains specific information about his involvement in five criminal cases namely, Crime Nos.87/2005, 110/2005, 522/2005, 78/2006 and 634/2007. Almost all those crime are registered for grave offences falling under Sections 323, 326, 307,427, 452, 120B and the provisions of the Arms Act etc. It is also stated that in all the above cases, charge sheets have already been filed and Crime No.87/2005 is pending for trial as S.T.No.1113/2005 before the Judicial First Class Magistrate's Court, Kodungallur. According to the counter, in all these cases, the offences are falling under various sections of Chapters XVI, XVII and XXII of I.P.C. and also under Sections of the Arms Act. It is also WP(Crl) No.54 of 2008 :-6-: stated that the report from the sponsoring authority shows that the detenu continues such activities unabatedly in spite of the best efforts of the police and “proves himself to be above law, by threatening peace loving people and also witnesses, showing utter contempt towards the authority and law and thereby acts in such manner as to cause directly and indirectly feeling of insecurity, danger and fear among the general public and also is a cause of danger to the safety of individual and the public in general.” The counter affidavit further discloses that on examination and evaluation of the report by the detaining authority, she had satisfied that the detenu is coming under the definition of 'Known Rowdy' under Section 2(p) of the Act and fifth proviso to Section 2(p) is not attracted in the above cases and that if he remains at large, he would indulge in anti-social activities detrimental to the interest of public safety, order and peace in the locality and Ext.P2 detention order was issued by the second respondent in exercise of her powers under Section 3(1) WP(Crl) No.54 of 2008 :-7-: and 3(2) of the Act, along with the grounds for detention with a view to prevent him from acting in such manner as aforesaid. According to the second respondent, in Ext.P2 itself, it is stated that the detenu has the right to represent before the Government and also the Advisory Board against his arrest and detention. Accordingly, the third respondent was directed to take the detenu into custody and to send him to Central Jail, Viyyur on the basis of Ext.R2(a). Ext.R2(b) is the Jail Admission Authorisation issued by the second respondent. Thus, according to the second respondent, on the basis of the above documents, the detenue was arrested on 8.12.2007 and sent him to the Central Jail, Viyyur and thereafter, he is continuing there under detention. The arrest and detention and the materials etc. were forwarded to the Government and the Government, as per Ext.P10, confirmed the detention. According to the Government, there is no procedural illegality or variation in arresting and detaining the detenu. The detenu was made aware of the right to make WP(Crl) No.54 of 2008 :-8-: representation before the authorities concerned and all these were acknowledged by the detenu. In para 8 of the counter affidavit, it is stated that the petitioner's husband is involved in five criminal cases mentioned in the grounds of detention, within seven years and it was also found that the above cases were not falling under the provisions contained in the fifth proviso to Section 2(p) of the Act. Thus, according to the second respondent, the detenu is a 'Known Rowdy' and if he remains at large, he would indulge in anti-social activities detrimental to the maintenance of public safety, order and peace in the locality which insisted in issuing Ext.P2 order. It is specifically stated that the documents furnished to the detenu were readable and legible and the contra allegations are denied. According to the second respondent, the materials available on record show that he is coming within the purview of 'Known Rowdy' as defined in Section 2(p) of the Act and futher details contained in the crime documents substantiated the fact that he was implicated only due to WP(Crl) No.54 of 2008 :-9-: his overt act and his role in the commission of offence and not due to any political vengeance. Thus, according to the respondents, there is no merit in the writ petition and the same is liable to be dismissed. 4. On behalf of the first respondent, a counter affidavit dated 18.3.2008 was filed stating more or less same averments as contained in the counter affidavit filed by the second respondent. It is stated that representation of the petitioner dated 22.12.2007 was rejected and the same was communicated as per Ext.R1 (a) letter. It is also stated that another petition dated 14.1.2008 was received from the petitioner and the same was rejected after due consideration and she was informed the same as per Government Letter No.88676/SSA5/2007/Home dated 1.2.2008. In para 5 of the counter affidavit, it is specifically stated that the Advisory Board has reported that they agree with the view taken by the detaining authority and from the records, it is clear that the detenu is capable of committing grave crimes in daylight and in public places WP(Crl) No.54 of 2008 :-10-: and such crimes will generate fear in the minds of the public. It is also stated that on the basis of the opinion of the Advisory Board, the Government confirmed the detention of the detenu for six months with effect from 8.12.2007 and the confirmation order is produced along with the counter affidavit as Ext.R1(b). 5. We have heard the learned counsel appearing for the petitioner Mr.P.S.Sreedharan Pillai as well as Sri.K.K.Raveendranath, Special Government Pleader and the Liaison Officer. 6. Learned counsel for the petitioner vehemently submits that the detenu will not come within the definition of 'Known Rowdy' as named by the authorities. From the order of detention, nothing discernible to show that the authority has perused the C.D.files with respect to the relevant crime. After inviting our attention to Exts.P5 and P6 which contained respectively in running pages 24 and 29 of the writ petition, the learned counsel submits that column No.7 of the First Information Report shows that the detenu is WP(Crl) No.54 of 2008 :-11-: described as a B.J.P.worker. On the basis of the above fact, the learned counsel submits that the petitioner's husband will not come under the definition of Section 2 (p) of the Act. According to the counsel, the fifth proviso to Section 2(p) will show that any person who had been a member of a recognised political party, by virtue of his involvement merely in his presence, but without any overt act shall not be considered as an accused of the offence mentioned in clause (t) of Section 2. Hence the detenu will not come within the definition of 'known rowdy' and therefore, the detenu is entitled to the benefit of proviso (v) to section 2(p). Hence the detention itself is illegal. It is also argued by the learned counsel that the authorities namely the detaining authority as well as the sponsoring authority and the Government too failed to apply their mind to ascertain whether proviso (v) to Section 2(p) will attract in the case of the detenu. It is also submitted by the learned counsel, inviting our attention to the last sentence of Ext.P4 which contained in para 23 of the writ petition, WP(Crl) No.54 of 2008 :-12-: that such a conclusion was arrived by the authorities without any materials. No documents are cited to have perused for coming to such conclusion. Therefore, it is crystal clear that there is no application of mind. 7. Learned counsel further submits that the order of preventive detention can be issued only as a last resort and before that, the authorities should invoke the generally accepted legal provisions if they are so advised. It is pointed out by the learned counsel that under Section 107 of the Criminal Procedure Code or under Section 144, proceedings can be initiated. Even under Section 15 of the Act itself, there is provision for taking such recourse and the same can be resorted by the authorities. But, without taking any steps under the above provisions, due to political pressure and out of sheer political vengeance, the provisions of Sections 3(1) and (2) of the Act have been invoked against the petitioner's husband. Counsel further submits that unless the authorities are able to show that the activities of the detenu will come under the definition of Section 2 WP(Crl) No.54 of 2008 :-13-: (a), no order of detention can be issued. In support of the above contention, it is further submitted that there is no material to attract the ingredients of Section 2(a). The learned counsel very much relied upon the decision of the Apex Court reported in District Collector v. Laxmanna [2005(2) KLT SN 64 (Case No.76)]. On the strength of the above decision, it is submitted that mere involvement in an abkari offence or any other offence will not be sufficient to invoke the provisions of the Act dealing with preventive detention, unless it is shown that the detenu's such involvement has a social impact. Thus, according to the counsel, nothing brought out on record to show that the activities of the detenu will come under the 'anti-social activity' defined in the Act and the same were detrimental to the interest of society and there is social impact on the society. Another contention advanced by the learned counsel is that the documents supplied to the detenu are illegible and not readable. Therefore, according to the counsel, by providing documents which are illegible and unreadable, in effect, WP(Crl) No.54 of 2008 :-14-: the detenu was denied the opportunity to make representation before the higher authorities and the Advisory Board and thus the fundamental right of the detenu under Article 22(5) has been denied. 8. We have perused the copies of the documents alleged to have come under such category of illegible and not readable which are produced along with the writ petition out of which few documents are not legible, but most of the documents are very clear and readable. The learned Special Government Pleader submits that what they have produced along with the writ petition are not the copies of the documents actually served on the detenu and the same was rendered as unreadable and illegible by the process of copying the same. We have anxiously considered the above submission and asked the learned Special Government Pleader regarding the finding of the Advisory Board on this issue. The learned Special Government Pleader made available to us the copies of the order of the Advisory Board and in para 19 of the order, it is stated that “the detenue would WP(Crl) No.54 of 2008 :-15-: contend that the records supplied to him are not legible and he is disabled from sending a proper representation. This contention is absolutely wrong. The copies of the records produced by the Government and those attached to the representation of the detenu show that they are legible and are readable without strain”. The statutory authority has repelled the contention of the petitioner and there is no contra material to take a different view. 9. Another contention raised by the learned counsel for the petitioner is that out of five cases mentioned in the detention order, one case has already been acquitted. The other is only a summary trial case. The third case is of course under Section 307 of the Indian Penal Code. The learned Special Government Pleader submits that the acquittal of one of the cases relied on by the detaining authority was subsequent to the order of detention and therefore, for that reason, the order cannot be set aside. Relying on the decision reported in Madhu Limaye and another v. Sub WP(Crl) No.54 of 2008 :-16-: Divisional Magistrate, Monghyr and others (AIR 1971 SC 2486), the learned counsel submits that there must be a specific finding as to how public order and public tranquility will affect as a consequence of the detenu's activities. Learned counsel submits that the situation connected with public order and public tranquility is something more than law and order. It is true that public order and public tranquility are not defined in the Act. But there is no reference as to how the public order and public tranquility is being affected due to the activities of the detenu. In support of the above decision, two more decisions namely, State of U.P. v. Hari Shankar Tewari [AIR 1987 SC 998 (para 7)] and Mohinuddin @ Moin Master v. District Magistrate, Beed and others [(1987) 4 SCC 58 (para 3)] are also cited by the learned counsel for the petitioner. 10. Sticking on the counter affidavit and the averments contained thereon, Mr.K.K.Raveendranath, Special Government Pleader and the Liaison Officer WP(Crl) No.54 of 2008 :-17-: submits that none of the grounds raised by the petitioner are sustainable and the materials available on records are sufficient and justifying the action taken by the second respondent in exercise of her powers under Section 3(1) and 3(2) of the Act. He had invited our attention to the decision of the Supreme Court reported in Prabhu Dayal Deorah v. District Magistrate, Kamrup and others [AIR 1974 SC 183 (para 28)] and Nishi Kanta Mondal v. the State of West Bengal [AIR 1972 SC 1497 (para 8)]. 11. The main challenge in this writ petition is against Exts.P1 and P10 orders. Mr.Sreedharan Pillai, learned counsel for the petitioner submits that actually they are challenging Ext.P2, but due to oversight the impugned order is shown as Ext.P1 instead of Ext.P2. Going by the writ petition and the allegations contained therein, we are satisfied that the main challenge is against Ext.P2 detention order passed by the second respondent and Ext.P10 confirmation order issued by the first respondent, Government. Instead of Ext.P2, WP(Crl) No.54 of 2008 :-18-: what shown in the writ petition is Ext.P1 which is a copy of the memo for executing the order of detention dated 6.12.2007 issued by the second respondent. On a perusal of Ext.P2, it is seen, as evidenced in the following lines that “In the circumstances, in the exercise of the powers vested in me u/s. 3(1) and 3(2) of the Act No. 34 of 2007 with a view to prevent him from acting in such a manner as aforesaid, I hereby order that Sri.Ranan @ Ranadeep, be placed under detention with immediate effect for a period of six months at Viyyur Central Jail, Thrissur from the date of detention” (underline supplied). Therefore, Ext.P2 order of detention prescribes the period as six months, which according to us, is not proper and correct. We had occasion to consider the legality and correctness of the order of such nature issued under the very same Act in W.P.(Crl) No.71 of 2008. By our judgment dated 4.4.2008, we held that the detaining authority under Section 3(1) and 3(2) of the Act has no power to fix any period more than three months at the time of initial WP(Crl) No.54 of 2008 :-19-: order of detention. In the above judgment, though we have repelled the contention that Section 12 of the Act is unconstitutional, we held on the basis of the decision of the Apex Court reported in Makhan Singh Tarsikka v. State of Punjab (AIR (39) 1952 SC 27)(C.N.7) that the order of detention passed by the District Collector therein is without jurisdiction. It was also held that a reading of Section 10(4) would show that the Government is the competent authority to fix the period of detention, that too only on the basis of the positive opinion by the Advisory Board and even if the Advisory Board recommended for the continued detention, the authority is vested with the Government to fix the period. It was also held that if the Advisory Board is of opinion that there is no ground for further detention, it is mandatory for the Government to release the detenu forthwith. Further, from Section 3(3), it can be seen that the detaining authority shall forthwith report the fact to the Government and the Director General of Police, Kerala together with a copy of the order and WP(Crl) No.54 of 2008 :-20-: supporting records which, in his opinion, have a bearing on the matter. The very same section further declared that no such orders shall remain in force for more than 12 days, excluding public holidays from the date of detention of such 'known goonda' or 'known rowdy' unless, in the mean time, it has been approved by the Government or by the Secretary, Home Department if generally so authorised in this regard by the Government. Thus, from the wordings used in Section 3 (3) and on a conjoint reading of subsection(4) of section 10, it can be seen that the absolute authority is vested with the Government to fix the period of detention and in view of Section 12 of the Act, only the Government can fix the detention period not exceeding six months from the date of detention. Therefore, the detaining authority in the present case, who has issued Ext.P2, has exceeded her jurisdiction and she has no authority to fix the period of detention as six months. Therefore, Ext.P2 is unsustainable in law and consequently, the confirmation order issued by the Government as per WP(Crl) No.54 of 2008 :-21-: Ext.P10 is also not sustainable and the same is liable to be quashed. 12. Since we have already found that Ext.P2 is not sustainable in law and liable to be quashed, it is not necessary to enter into any finding on merits regarding the other contentions raised by the petitioner and the counter arguments advanced from the side of the respondents. 13. In the result, Exts.P1, P2 and P10 are quashed. Respondents are directed to release the detenu, Sri.Ranan @ Ranadeep,