IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 10TH DECEMBER 2009 / 19TH AGRAHAYANA 1931 WP(Crl.).No. 451 of 2009(S) --------------------------- PETITIONER(S): --------------- BINOY JOSE, AGED 26 YEARS, S/O. JOSE ANTONY, PUTHUPARAMBIL HOUSE PONKUNNAM.P.O., PONKUNNAM. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI SRI.MANU TOM RESPONDENT(S): --------------- 1. THE DISTRICT MAGISTRATE, KOTTAYAM (THE DISTRICT COLLECTOR KOTTAYAM.). 2. THE SUPERNITENDENT OF POLICE, KOTTAYAM. A.D.G.P SRI.K.K.RAVINDRANATH GOVERNMENT PLEADER SRI.P.RAVINDRA BABU THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 10/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * W.P.(Crl).No.451 of 2009 ---------------------------------------- Dated this the 10th day of December 2009 J U D G M E N T Basant,J The petitioner has come to this Court with this petition for issue of a writ of habeas corpus to produce Martin Antony who stands detained by an order of detention passed under Sec.3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 by the 1st respondent and to set him at liberty. 2. The said Martin Antony (hereinafter referred to as `the detenu') is the brother of the petitioner. The 2nd respondent - the Superintendent of Police, Kottayam, by Ext.P3 report dated 1/8/09 sponsored the detenu for detention under Sec.3 of the KAAPA. Ext.P3 was received by the 1st respondent who proceeded to pass the impugned order - Ext.P1 dated 1/10/09. The detenu was arrested on 4/10/09. He continues in detention from that date. The order of approval under Sec.3(3) of the KAAPA has already been passed. The order under Sec.10(4) of the KAAPA has not so far been passed. 3. The detenue is classified as a known rowdy. He is allegedly involved as many as 8 cases. In one of those 8 cases, W.P.Crl No.451/09 2 the incident had taken place in 2009; whereas in all the other cases, the incident had taken place between 4/12/2002 and 8/9/2007. We give below a brief resume of the said 8 cases: Sl.No. Crime No. Date of detention Section of offences Final report whether filed or not Remarks 1 10/2006 06/01/06 323 and 324 Yes 2 67/07 25/2/07 308 and 326 Yes 3 224/07 08/09/07 332 and 353 Yes Suo motu 4 227/07 16/8/07 294(b) and 324 Yes 5 158/05 31/10/05 379 Yes 6 167/05 15/11/05 379 Yes 7 92/09 16/3/09 379 Yes Final report filed on 8/5/09 8 237/02 04/12/02 392 & 34 Yes 4. We have heard the learned senior counsel Advocate Sri.K.Ramakumar and the learned Government Pleader Sri. Raveendra Babu. The learned counsel for the petitioner assails the impugned order on the following grounds: (i) There has been no proper application of mind by the detaining authority. This is convincingly revealed inter alia by the fact that case No.3 referred above which should not have been reckoned to decide whether the detention is a known rowdy or not was taken into reckoning. W.P.Crl No.451/09 3 ii) Live link between the alleged contumacious act and the order of detention does not exist inasmuch as cases referred to are ancient cases which have no bearing on the decision as to whether future detention of the detenu is necessary on the date of the order of detention. iii) Copies of the documents furnished are illegible and unreadable and this has resulted in frustration of the right of the detenu to make a representation before the Government and the Advisory Board. iv) The action of the respondents is vitiated by mala fides. 5. Ground No.1: It is contended that there is no application of mind at all by the detaining authority. Tell tale evidence of this is available from the fact that case No.3 referred above has been taken into reckoning. The learned counsel relies on Section 2(p)(iii) of the KAAPA to contend that a case in which a police official is the complainant cannot be reckoned at all to decide whether a detenu is a known rowdy. We find merit in this contention. The said case is one which was initiated by a police official. The learned Government Pleader accepts that. The learned Government Pleader contends that even excluding that case, the detenu would perfectly fall within the sweep of the expression known rowdy under Section 2(p) of the KAAPA W.P.Crl No.451/09 4 inasmuch as there are seven other cases which are perfectly cognizable to decide whether the detenu is a know rowdy or not. The learned Government Pleader relies on Section 7(4) of the KAAPA to contend that even excluding that one case which has been wrongly taken into consideration, the impugned order cannot be faulted or assailed. We find merit in the contention of the learned Government Pleader. While we are in ready agreement with the learned counsel for the petitioner that the said case No.3 must have been excluded from consideration, the mere fact that the said case was also taken into account by the respondents while sponsoring the detenu for detention and ordering detention of the detenu cannot invalidate the impugned order. 6. The learned counsel for the petitioner contends that though 8 cases have been referred to, there is nothing specific to show that the detention is at present likely to indulge in anti social activities. The learned counsel for the petitioner contends that two satisfactions have to be entertained by the detaining authority. The first is the initial objective satisfaction that the detenu is a known rowdy; but that is only the threshold satisfaction. That satisfaction by itself will not justify an order of detention. In respect of such a person who is a known rowdy or W.P.Crl No.451/09 5 a known goonda under the KAAPA the detaining authority has again has to consider whether his detention is necessary to prevent him from committing anti social activities. The learned counsel for the petitioner contends that mind has not been specifically applied by the detaining authority to this aspect of the matter. 7. We are in total agreement with the learned counsel for the petitioner that the initial threshold satisfaction is not sufficient to order detention the further subjective satisfaction must necessarily be entertained that detention of the detenu is necessary to prevent him from committing anti social activities in future. On that aspect, there can be no quarrel. In eight cases, the detenu is involved even excluding case No.3, there are seven other cases. These cases, we note, relate to offences committed allegedly on 06/01/2006, 25/2/2007, 16/8/2007, 31/10/2005, 15/11/2005, 16/3/2009 and 04/12/2002 as revealed from column 3 above. The requisite subjective satisfaction can be induced from past conduct. The law of preventive detention has often been described as the jurisprudence of suspicion. A person is ordered to be detained not punitively for any culpable conduct committed earlier. The detaining authority has to assess and evaluate past events to predicate or to draw a hypothesis on the W.P.Crl No.451/09 6 probable future conduct. Past incidents by itself would be sufficient in a proper case to induct the requisite subjective satisfaction. In the instant case, the cases referred to clearly reveal that the detenu was allegedly getting involved in criminal offences. In these circumstances, we do not find merit in the contention that after the last of those cases, no subsequent commission of offence is reported or alleged. That circumstance cannot vitiate the order of detention. In Ext.P1 order of detention, we find that the authority had applied his mind to this question and has observed thus in the three penultimate paragraphs. “In all the 8 cases mentioned above, trial is pending before Court. I have evaluated the aforesaid information in the context of the circumstances pertaining to public order, peace and tranquility in Ponkunnam, Pallickathode, Manimala and other areas of this district. The involvement of the aforesaid person in the above mentioned criminal cases shows that he is a hard core criminal causing serious public order problems by indulging in goonda activities in various areas of this district and that his free movement is a threat to the safety and security to the general public. I am convinced that Shri.Martin Antony, age-37, S/o.Antony, Puthupparambil house, Vadakkumbhagam Kara, Chirakkadavu village, Kottayam is a 'known rowdy' under Section 2(p)(iii) r/w section 2(t) of KAA (P)A 2007 and that he would indulge in antisocial activities, which would directly, or indirectly cause threat to the public order, peace and tranquility of people in this district and hence his detention is inevitable for maintaining peace, public order and W.P.Crl No.451/09 7 tranquility in that area. Therefore, in exercise of the powers vested in me under Section 3(1)/3(2) of the Act and with a view to prevent him from causing as aforesaid, I hereby order that Shri.Martin Antony, age-37, S/o.Antony, Puthupparambil house, Vadakkumbhagam kara, Chirakkadavu village, Kottayam is detained in accordance with the provisions of the Kerala Anti- Social Activities (Prevention) Act, 2007 at Central Jail, Thiruvananthapuram. 8. The impugned order reveals that the detaining authority had applied his mind to the question whether based on past alleged incidents, the latter subjective satisfaction under Section 3 can be entertained or not. We may hasten to observe that it is trite that the sufficiency of the material to entertain such satisfaction is not justiciable in judicial review. We do not, in these circumstances, find any merit in the contention that mind has not been applied to the relevant aspects. The challenge on the first ground therefore fails. 9. Ground No.2: The learned counsel for the petitioner contends that the last of the alleged pieces of objectionable conduct in respect of cases 7 referred above took place on 16/3/2009. The impugned order was passed only on 01/10/2009. It is the argument of the learned counsel that snapping of a nexus must be held to have taken place and, at any rate, the live link between the alleged instances of contumaciousness and the W.P.Crl No.451/09 8 impugned order of detention is lost. Therefore, the learned counsel contends that the impugned order and the consequent detention must be invalidated on the ground of snapping of nexus. 10. It has repeatedly been held by courts that the exercise is not one of merely counting the number of days from the last alleged contumacious or culpable act and the order of detention. In the instant case, we find that there are eight previous instances of alleged culpable conduct. They cover a period of 04/12/2002 and 06/03/2009. The last of the crimes was allegedly committed on 16/3/2009. The F.I.R in that case was registered on 17/3/2009. After investigation, the final report was filed on 18/5/2009. The Superintendent of Police, the 2nd respondent submitted the report sponsoring the detenu for detention under Section 3(1) of the KAAPA on 01/08/2009 (Ext.P3). It was thereupon that the impugned order was passed on 01/10/2009. Even though there is a distance of about 6 ½ months between the date of the last offence and the order of detention, we must note that in between investigation was conducted, the police officer entertained the satisfaction that the detenu has committed the offence, submitted the final report and thereafter the sponsoring authority 2nd respondent initiated proceedings W.P.Crl No.451/09 9 and that culminated in the impugned order dated 01/10/2009. We are unable to agree that this sequence of events from 16/3/2009 to 01/10/2009 can lead this court to the conclusion that there has been snapping of the nexus and the loss of live link to justify invalidation of the order of detention. The challenge on ground No.2 also hence fails. 11. Ground No.3: The learned counsel for the petitioner submits that copies of the documents furnished under Section 7 (2) are not readable or legible. The detenu has a right to receie legible and readable copies. Merely because some unreadable and illegible documents are thrust int the possession of the detenu that cannot be reckoned as sufficient compliance of the mandate of Section 7(2) of the KAAPA and Article 22(5) of the Constitution of India inasmuch as the documents are illegible and unreadable, there is vital infraction of the mandate of Section 7(2) of the KAAPA and Article 22(5) of the Constitution of India, contends the learned counsel for the petitioner. 12. On the question of law, we have no quarrel at all. The detenu has the constitutional right to make a representation. He has a right to receive documents to make that constitutional right to make representation effective. This right is recognised in Section 7(2) of the KAAPA whether statutorily recognised or W.P.Crl No.451/09 10 not the constitutional right operates with vigor. It is also settled beyond the trace of controversy that to satisfy Article 22(5) of the Constitution of India and Section 7(2) of the KAAPA, the documents furnished must be readable and legible that is the documents will have to serve the purpose for which they are furnished namely to make an effective representation against the order of detention. The crucial question is whether the documents furnished were legible and readable. Though a sweeping statement is made that copies furnished were readable and legible, such unreadable and illegible copies are not produced along with the petition to substantiate the said contention. Of course, at the Bar, copies furnished have been passed on to us. We have perused the same. We are unable to hold that those documents are so unreadable and illegible as to persuade us to hold that the right under Article 22(5) of the Constitution of India and Section 7(2) of the KAAPA stands frustrated. 13. The learned Government Pleader alertly points out that in the file, there are acknowledgments of the detenu which show unambiguously that he had no grievance that the documents were furnished to him were not readable. In fact, we note that endorsements have been taken from the detenu of all W.P.Crl No.451/09 11 the relevant documents in which he has stated that clear copies have been received ............................................................ In this context the learned Government Pleader relies on the decision of three Judges Bench of the Supreme Court in Union of India v. Mohammed Ahmed Ibrahim [AIR 1992 SC 778] to contend that the question to be considered is not merely whether the documents were absolutely readable or legible the question is whether the inadequacy in the document furnished has resulted in frustration of the right to make a representation. The learned Government Pleader points out in the file in page 203 it can be clearly seen that the detenu himself had made a representation to the Government under Article 22(5) of the Constitution of India and Section 7(2) of the KAAPA. Suffice it to say that we are not persuaded to agree that there has been any such vital or crucial inadequacy in the documents furnished which frustrate the right of the detenu to make a representation. The challenge on this ground also fails. 14. Ground No.4: The learned counsel for the petitioner then contends that the action initiated against the detenu is vitiated by mala fides. He was an activist of the dominant ruling political party - Communist Party of India Marxist. He had later distanced himself from that party. According to the petitioner, W.P.Crl No.451/09 12 action has taken against the detenu only because of such political animosity and difference. The local wing of the party had submitted a list to the authorities and it is based on such list that the authorities had decided to take action against the detenu. The petitioner has a further grievance that such local party functionaries in such list has given other names also which persons are involved in graver cases and more number of cases in having taken action under the KAAPA only against the petitioner and not against him, it is very evident that the motivation of the respondents is not prevention of anti social activities but only settling political rivalries. The learned counsel argues, in these circumstances, that the action must fail because it suffers from the vital vitiating defect of mala fides. This contention is denied by the learned Government Pleader. The learned Government Pleader submits that it is only a figment of imagination of the petitioner that action is initiated on the basis of such a request from the local party wing. The learned Government Pleader further submits that the fact that action has not been taken against any other is definitely not a ground on which the action against the detenu can be challenged. 15. Mala fides vitiates the most solemn of proceedings and if this court were satisfied that the action is vitiated by mala W.P.Crl No.451/09 13 fides powers under judicial review can certainly be invoked; but it must be held that the grievance that action has been vitiated on the basis of complaints of local party functionaries actuated by political reasons remain in the relm of unsubstantiated assertions which have not even rendered probable and possible by the materials on record. We agree with the learned Government Pleader that is no ground that action against some others have not been taken. We are, in these circumstances, satisfied that the 4th ground of challenge must also necessarily fall. 16. No other grounds are raised. The challenge against the impugned order and the consequent detention must, in these circumstances, fail. 17. In the result, this writ petition is dismissed. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr W.P.Crl No.451/09 14 W.P.Crl No.451/09 15 R.BASANT & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 29/07/2009