IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 25TH APRIL 2011 / 5TH VAISAKHA 1933 WP(Crl.).No. 76 of 2011(S) -------------------------------------------- PETITIONER(S): ---------------------- GIRIJA, AGED 48 YEARS, W/O.LATE VIJAYAN, KULAVARAMBU MELE, ERATHU VEEDU, KEEZHOOR, MUTTACAUD, KALLIYOOR, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.S.RAJEEV RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. DISTRICT COLLECTOR & DISTRICT MAGISTRATE COLLECTORATE, THIRUVANANTHAPURAM-695001. 3. DEPUTY COMMISSIONER OF POLICE (LAW & ORDER), THIRUVANANTHAPURAM-695001. 4. CIRCLE INSPECTOR OF POLICE, NEMOM POLICE STATION, THIRUVANANTHAPURAM-695020. 5. THE CHAIRMAN, ADVISORY BOARD, KERALA ANTI SOCIAL ACTIVITIES (PREVENTION)ACT, ELAMAKKARA, KOCHI-682026. BY SR. GOVERNMENT PLEADER SHRI P. RAVINDRA BABU. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 25/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(CRL).NO.76 OF 2011 S PETITIONER'S EXHIBITS: EXT.P1 COPY OF THE ORDER PASSED BY THE DISTRICT MAGISTRATE/DISTRICT COLLECTOR DATED 02.02.2010. EXT.P2 COPY OF THE MODIFIED ORDER PASSED ON 11.11.2010. EXT.P3 COPY OF THE PROCEEDINGS IN CC.NO.1672/2010 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS II, NEYYATINKARA. EXT.P4 COPY OF THE ORDER OF APPROVAL PASSED BY THE ADDL. CHIEF SECRETARY ON 25.11.2010. RESPONDENTS' EXHIBITS: EXT.R3(1) TRUE COPY OF ORDER NO.G.O.(RT). NO.191/2011/HOME DATED 21.01.2011. EXT.R3(2) TRUE COPY OF INDEX DULY ACKNOWLEDGED BY THE DETENU. EXT.R(1)A: TRUE COPY OF THE PETITION SUBMITTED TO THE HONOURABLE MAGISTRATE AND ORDER PASSED THEREON. EXT.R3(3) TRUE COPY OF THE CERTIFICATE ISSUED FROM THE V.P.S.HIGHER SECONDARY SCHOOL FOR BOYS, VENGANOOR. EXT.R3(4) TRUE COPY OF THE ORDER OF CONFIRMATION DATED 21/01/2011 ACKNOWLEDGED BY THE DETENU. EXT.R3(5) TRUE COPY OF THE NOTICE INTIMATING THE ARREST OF THE DETENU AT THE TIME OF DETENTION DATED 14/11/2010. //TRUE COPY// PS TO JUDGE K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. ----------------------------------------- W.P.(CRL).NO. 76 OF 2011 S ------------------------------------------ Dated this the 25th April, 2011 JUDGMENT K.M. Joseph, J. Petitioner is the mother of the detenu who stands detained pursuant to proceedings under the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as the Act). Ext.P1 is the order dated 2.2.2010 passed by the District Magistrate under Section 3 of the Act, ordering the detention of the detenu, proceeding on the basis that the alleged detenu was a known rowdy. However, the detenu was not detained on the basis of Ext.P1 order as such. Ext.P2 is the order dated 11.11.2010 issued by the same District Magistrate who issued Ext.P1. Therein, he has referred to, inter alia, the letter from the Deputy Commissioner of Police to the effect that the alleged detenu and his associates have committed the offence in Crime No.717 of 2010 of Thiruvalla W.P.(CRL).NO.76 OF 2011 S 2 Police Station under Section 294(b), 394 and 427 of the Indian Penal Code on 25.10.2010. The case was that the detenu and his associates entered into the works site where the complainant works with his JCB Excavator and demanded Rs.10,000/= as goonda fee, threatened, manhandled brutally and inflicted serious injuries to him and robbed Rs.2,500/= and broken the wind shield of the JCB Excavator from his pocket. The case is under investigation. It is further stated, inter alia, that he was reported arrested on 02.11.2010 and subsequently remanded to judicial custody. It is stated that it is informed that he has moved to get bail from the court and it has been reported that he will involve in antisocial and violent activities affecting public order, if he is released on bail. Thereafter, the Magistrate issued Ext.P2 addendum to Ext.P1 order. It is feeling aggrieved by the detention pursuant to the same that the petitioner is before us. 2. We heard Shri S. Rajeev, learned counsel for the petitioner and also Shri P. Ravindra Babu, learned Senior W.P.(CRL).NO.76 OF 2011 S 3 Government Pleader. 3. Learned counsel for the petitioner would address before us the following contentions: He would submit that though Ext.P1 order of detention was passed on 02.02.2010, the detenu came to be detained only on 14.11.2010. He would submit that no steps were taken under Section 6 of the Act to secure his presence and execute Ext.P1 order. Thus, Ext.P1 order of detention would fall to the ground. He would further point out Ext.P3 and contend that in connection with one of the cases which is referred to in Ext.P1 order, the detenu had surrendered before the Judicial First Class Magistrate Court, Neyyattinkara on 27.8.2010 and he was remanded in judicial custody till 7.9.2010. Ext.P3 order would show that he was granted bail subject to certain conditions. He would submit that this would itself show that the detenu was not actually absconding and there was clear failure on the part of the Officers in executing Ext.P1 order in time. It is after a lapse of more than six W.P.(CRL).NO.76 OF 2011 S 4 months which is the maximum period of detention provided under Section 3 that on 14.11.2010 the detenu came to be detained. He would complain of non-application of mind by the detaining authority when he passed Ext.P2 order. He would further contend that when Ext.P2 order was passed, actually the detenu was in detention as is clear from a perusal of Ext.P2. He would canvass for the position that it is not even mentioned in Ext.P2 that there is a possibility of the detenu getting bail and the requirement of law is that the detaining authority must come to the conclusion which must be reflected in the order of detention that he is likely to get bail. It is further contended that there is no reference to the Addendum order in the proceedings by which Ext.P1 order came to be approved. It is further contended by the learned counsel for the petitioner that Ext.P2 order was procured by the sponsoring authority as it were by placing incorrect facts before the detaining authority. In this context, he buttresses his argument with reference to the fact that no steps had been taken under Section 6 W.P.(CRL).NO.76 OF 2011 S 5 of the Act. He also submits that Ext.P4 does not establish that the approving authority had in mind Ext.P2 or that it is approved. He submits further that the decision in Babu's case (2010 (1) KLT 132) requires reconsideration. He points out that Section 3(3) of the Act requiring “forthwith” reporting of the detention, inter alia, stood violated. 4. Per contra, learned senior Government Pleader would support the order. He would submit that as far as Ext.P1 order is concerned, it is true that it is not executed. But, the fact remains that the detenu came to be involved allegedly in a fresh crime. This was a new circumstance. He heavily relied on the judgment of this Court in Babu v. State of Kerala (2010 (1) KLT 132). He would contend that, therefore, the fact that Ext.P1 order of detention was not executed, steps were not taken under Section 6 of the Act, was not germane. What is important is whether there was a new circumstance or changed circumstance giving rise to the need for the detaining authority to have a fresh look at the order of W.P.(CRL).NO.76 OF 2011 S 6 detention and such a changed circumstance did indeed exist in the form of the alleged involvement of the detenu in the crime committed on 25.10.201. He would contend that while it is true that the word used in Section 3(3) is “forthwith”, it should be read in the context of the upper time limit being fixed for the grant of approval with reference to the actual date of detention. According to him, not only must there be an order of detention passed validly, but when the Government approves of the detention, the Government must be apprised of the fact that the detaining authority has followed the mandate of Section 7 in the manner of executing the order of detention and, therefore, actually the significance of the word “forthwith” cannot be detracted from the actual purpose behind the employment of the said word and the need of the detaining authority to comply with the requirements of Section 7, which also must be approved by the Government. 5. As far as the question of the detenu being in custody at the time of passing of Ext.P2 order, he would submit that the fact that W.P.(CRL).NO.76 OF 2011 S 7 the detenu was in custody, and that he had moved for bail, was very much present in the mind of the detaining authority. He would submit that the decision of a Bench of this Court in R.P. No.20 of 2010 in W.P.(Crl).No.446 of 2009 for the proposition that when an order of detention is followed by an Addendum, in law, there is only one order of detention and approval is to be given for the original order of detention. He also submits that Ext.P2 reflects application of mind by the detaining authority to the relevant aspects, namely the existence of a new circumstance, and that what is stated in the report of the sponsoring authority, even if he was in error, as regards the question of the detenu absconding, it will not have any fatal effect on the order of detention. 6. We must first consider the question as to what is the effect of Ext.P1 order remaining unexecuted from 2.2.2010 till 15.11.2010. It is true that in Ext.P2 order, it is stated as follows: “Deputy Commissioner of Police (L&O), Thiruvananthapuram City, has reported that, the detention order against Sri. Prakash, S/o. Vijayan was W.P.(CRL).NO.76 OF 2011 S 8 not executed since he was at desertion since the time issuance of the detention order against him.” However, there is no material placed before us to come to the conclusion that the detenu was actually absconding. On the contrary, there are circumstances which suggest the opposite. Ext.P3 would show that in respect of one of the crimes which was the subject matter of Ext.P1 order, the detenu was in judicial custody which was ordered on his surrendering before the Judicial First Class Magistrate Court, Neyyattinkara on 27.8.2010. He continued in judicial custody till 7.9.2010 on which day he was ordered to be released on bail. Thus, there can be no doubt that if Ext.P1 were to stand by itself, the detention on 14.11.2011 would be per se unsustainable. However, the learned senior Government Pleader would rely on the principle enunciated in Babu v. State of Kerala (2010 (1) KLT 132) and contend that proceeding on the basis that the detenu was not absconding, in view of the changed circumstances as reflected in the recital of the alleged involvement W.P.(CRL).NO.76 OF 2011 S 9 of the detenu in a fresh crime on 25.10.2010, a fresh lease of life was breathed into the original order of detention and the original order of detention became legally fit to be executed. In this regard, we must at once advert to the principles enunciated in Babu v. State of Kerala (2010 (1) KLT 132) which read as follows: “14. But, the question is whether case No.6, the incident in which occurred on 1.6.2009 after the passing of Ext.P1 order dt. 19.1.2009 and the application of mind by the detaining authority as revealed from Ext.P2, are sufficient to undo the effect of inaction on the part of the detaining/executing authorities. 16. We note that the observation of the Division Bench in Assia is evidently on the basis of another earlier decision of the Supreme Court in Bhawarlal v. State of Tamil Nadu (AIR 1979 SC 541). We extract below the relevant portion of para.6 of the said judgment: “Para.6..........................We may in appropriate cases assume that the link is `snapped' if there is a long and unexplained delay between the date of t4he order of detention and the arrest of the W.P.(CRL).NO.76 OF 2011 S 10 detenu. In such a case we may strike down an order of detention unless the grounds indicate a fresh application of mind of the detaining authority to the new situation and the changed circumstances. But, where the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the `link' not snapped but strengthened. That, precisely, is the state of affairs before us.” 17. The decision of the Supreme Court in Bhawarlal followed by this Court in Assia clearly and unmistakably suggests that where grounds indicate a fresh application of mind by the detaining authority to the new situation and changed circumstances, the delay between the order of detention and the arrest of the detenu cannot lead to a conclusion of snapping of nexus. 19. The observations of the Supreme Court in Bhawarlal and the Division Bench in Assia clearly show that where there is such a gap of time between the order and execution, the detaining authority is entitled to, nay obliged to, consider the materials afresh by a proper application of mind to decide whether under the new situation and changed circumstances the order of detention deserves to be W.P.(CRL).NO.76 OF 2011 S 11 executed. To us it appears that, that is exactly what has been done by the detaining authority in Ext.P2. What Bhawarlal and Assia mandate has been performed by the detaining authority by passing Ext.P2 order. In these circumstances, we take the view that whatever be the delay/inadequacy in execution of Ext.P1 order, the fact that the detaining authority after adverting to the delay relied on the changed circumstances on the basis of case No.6 and directed execution of the order of detention, is sufficient to cure all such defects arising from the delay in execution.” In the context of this declaration of the law, we would think that the learned senior Government Pleader is right in contending that in view of the subsequent event which allegedly took place on 25.10.2010, the detaining authority was justified in passing the Addendum order and providing for his detention. However, learned counsel for the petitioner would submit before us that Babu v. State of Kerala (2010 (1) KLT 132) itself requires to be reconsidered. He would draw our attention to the facts of the case W.P.(CRL).NO.76 OF 2011 S 12 in Bhawarlal Ganeshmalji v. State of Tamil Nadu and Another (1979 SCC (Crl) 318 - AIR 1979 SC 541). That was a case under the COFEPOSA Act. Though the order of detention was passed on 19.12.1974, it was not executed as the detenu was absconding. A proclamation was made under Section 7 of the Act and in fact the petitioner surrendered on 1.2.1978. Therein, the Court, inter alia, held as follows: “6. It is true that the purpose of detention under the COFEPOSA is not punitive but preventive. The purpose is to prevent organised smuggling activities and to conserve and augment Foreign Exchange. It is true that the maximum period for which a person may be detained under the COFEPOSA is one year. It is further true that there must be a `live and proximate link' between the grounds of detention alleged by the detaining authority and the avowed purpose of detention namely the prevention of smuggling activities. We may in appropriate cases assume that the link is `snapped' if there is a long and unexplained delay between the date of the order of detention and W.P.(CRL).NO.76 OF 2011 S 13 the arrest of the detenu. In such a case we may strike down an order of detention unless the grounds indicate a fresh application of the mind of the detaining authority to the new situation and the changed circumstances. But where the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the `link' not snapped but strengthened. That, precisely, is the state of affairs before us. The order of detention was made on December 19, 1974. The detenu was found to be absconding. Action was taken pursuant to Section 7 of the COFEPOSA and he was proclaimed as a person absconding under Section 82 of the Criminal Procedure Code. The proclamation was published in several leading English and local language daily newspapers. His photograph was exhibited in cinema halls. A reward of Rs.5,000/= was also announced for his apprehension. Despite all this effort he could not be arrested until he surrendered on February 1, 1978. We do not have any hesitation in overruling the submission of Shri Jethmalani based on the delay in the execution of the order of detention.” W.P.(CRL).NO.76 OF 2011 S 14 It is therefore submitted by the learned counsel for the petitioner that, that was a case where the detenu was found to be absconding and action was taken under the relevant provisions to procure his presence and he was proclaimed as an absconder. Photographs were exhibited in cinema halls and reward was also announced. The decision in Bhawarlal's case supra came to be followed by a Bench of this Court in the decision reported in Assia v. State of Kerala (2000 (1) KLT 673). Therein also, there was unusual delay in executing the order of detention. The Court ultimately took the view that the order of detention was vitiated and relief was granted. However, the court referred to Bhawarlal's case and held as follows: “In such circumstances, an order of detention can be struck down unless grounds indicate a fresh application of mind of the detaining authority to the new situation and changed circumstances. But where delay is not only adequately explained but is found to be the result of recalcitrant or refractory conduct of detenu in evading arrest, there is warrant to consider W.P.(CRL).NO.76 OF 2011 S 15 the link not snapped but strengthened.” Therefore, the attempt on the part of the learned counsel for the petitioner is to establish the principle that unless it was found that the detenu was absconding and steps were taken, by mere reference to a new incident which takes place after a considerable period of delay on the part of the Authorities in executing the original order of detention, an addendum order was not contemplated by which the original order is rendered capable of being executed. 7. It is true that in Bhawarlal's case, the Court took note of the fact that there was unusual delay. The effect of delay is that it will snap the link between the detention and the execution. An order of detention under the laws of preventive detention is premised on the imperative need to urgently detain a person in a jurisdiction of suspicion. The object is to prevent the person from committing some undesirable activity as contemplated in the concerned law. As far as the provisions of the Act are concerned, an order of detention must be premised on the existence of an W.P.(CRL).NO.76 OF 2011 S 16 objective satisfaction by which the authority comes to the conclusion that a person is either a known goonda or known rowdy. Further, the detaining authority must also be satisfied on a subjective basis of the need for detention, which is normally not judicially reviewed. It is when such an order which is valid at the time when it was passed, loses its rigour and vigour by reason of the recalcitrant delay on the part of the Officers charged with the duty of executing it and a fresh incident or incidents take place that the law contemplates a revisiting of the whole matter. If a detenu is absconding and steps have been taken, an order of detention in its on right is capable of being executed without reference to any fresh material or new circumstance. It is when an order of detention is not executed and there is breach of the duty on the part of the Officer, resulting in such non-execution that a new circumstance would assume larger significance. The rationale behind a new event giving rise to the power with the detaining authority to consider the question whether the detenu should be W.P.(CRL).NO.76 OF 2011 S 17 detained in pursuance of an earlier order of detention is that the new event will provide a link or a bridge between an earlier order of detention and the actual detention. In other words, when a new crime is alleged of the sort contemplated under the Act, it re- assures the detaining authority and the court that here is a person whose detention is indeed necessary and warranted with reference to his being validly and rightly classified as either a known goonda or known rowdy. It is not as if the detaining authority is reopening the earlier satisfaction arrived at by himself that the detenu was indeed either a known goonda or a known rowdy. What the new incident does is, it resuscitates the earlier order of detention and breathes new life into the otherwise faded order of detention. Hence we are unable to persuade ourselves to accept the plea of Shri Rajeev, learned counsel for the petitioner that Babu's case does not lay down good law or that it requires reconsideration. 8. The discussion we had in the earlier paragraph is sufficient for us to repel the argument of the petitioner that the W.P.(CRL).NO.76 OF 2011 S 18 detention is flawed as steps were not taken under Section 6 of the Act. If steps were taken under Section 6, either the detenu would be apprehended or he may have remained at large. But, the crucial point to be not overlooked is the conduct attributed to the detenu allegedly involving himself in a fresh crime that allows the authorities to invoke the provisions and execute an order of detention against him. 9. The further question to be considered is whether the detention is bad for the reason that the detenu was in jail from 2.11.2010 and he remained so when the addendum order was passed on 11.11.2010. In the order, it is specifically stated that he is in custody from 2.11.2010. This means that the authority was conscious of the fact that the detenu was in custody. Further, it is stated in the order that there is information that he has moved to get bail. It is here that Shri Rajeev, learned counsel for the petitioner would point out that the requirement of law is not satisfied. In this regard, he relied on the Judgment of a Division W.P.(CRL).NO.76 OF 2011 S 19 Bench of this Court in Jameela v. State of Kerala and Others (2008 (1) KHC 5). Therein, the Division Bench referred to the decision of the Apex Court in paragraph 14 which reads as follows: “14. The learned counsel for the petitioner has brought to our notice another decision of the Apex Court reported in Rivadeneyta Ricardo Agustin v. Government of the National Capital Territory of Delhi and Others, 1994 SCC (Crl) 354. For appreciation of the legal position involved in the case on hand, a comparison of factual situation in the above reported case is necessary which contains in para 7 of the above decision which says as follows: “7. In the grounds of detention, the following statement occurs in para 9: “The Administrator of the National Capital Territory of Delhi is aware that you are in judicial custody and had not moved any bail application in the Court(s) after June 9, 1992 but nothing prevents you from moving bail applications and possibility of your release on bail cannot be ruled out in the near future. Keeping in view your modus operandi to smuggle gold into India and frequent visits to India, the Administrator of W.P.(CRL).NO.76 OF 2011 S 20 the National Capital Territory of Delhi is satisfied that unless prevented you will continue to engage yourself in prejudicial activities once you are released.”” In para 8 of the above decision, the Apex Court had held as follows: “8. The above statement merely speaks of a “possibility” of the detenu's release in case he moves a bail petition. It neither says that such release was likely