IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 W.P.(Crl.).No. 464 of 2008 (S) -------------------------------------- PETITIONER: ------------------- P.SHWETHA, W/O. SANTHOSH 6/22 ,4TH CROSS, CHAMARAJPET, AZAD NAGAR, BANGALORE 560 018, KARNATAKA STATE BY ADV. SRI.M.K.DAMODARAN, SENIOR ADVOCATE SRI.O.V.MANIPRASAD RESPONDENTS: ----------------------- 1. STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. THE DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, PALAKKAD. 3. THE SUPERINTENDENT OF POLICE, PALAKKAD 4. THE SUPERINTENDENT, CENTRAL PRISON VIYOOR, THRISSUR. ADDL. D.G.P.SRI.K.K.RAVINDRANATH THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 19/02/2009, ALONG WITH WP(CR) NO. 449 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(CRL)Nos.449 & 464 OF 2008-S - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of February, 2009 JUDGMENT Basheer, J: Two orders of detention issued by the District Magistrate (District Collector), Palakkad (hereinafter referred to as the 'authorised officer') under Section 3(2) of the Kerala Anti Social Activities (Prevention) Act, 2007, are under challenge in these two writ petitions filed by the spouses of the two detenus. 2. Since the two orders of detention emanate from same set of facts and circumstances and since the grounds of challenge in both the petitions are identical, we are disposing of these two cases by this common judgment. 3. Relevant facts which are essential for considering the question of validity, legality and sustainability of the orders of detention may be briefly noticed. 4. In W.P.(Crl).No.449/2008, the authorised officer had issued Ext.P1 order of detention on October 31, 2008 by which it was directed that the detenu namely Sri. Ramesh, S/o Mallik Shetty, be placed under detention with immediate effect since he WP(CRL)449&464/08 :: 2 :: is a “known goonda” as defined under the Act. In the grounds of detention, a copy of which is on record as Ext.P2, it was stated by the authorised officer that the detenu along with the others had hatched a criminal conspiracy for smuggling illicit spirit to Kerala in lorry No.KL 11 Q 1903 by concealing the same under bags of cement and, by misusing brass tokens meant for Malabar Cements Ltd. to transport cement through Green channel at Walayar check post. 5. The lorry was intercepted by the excise authorities on January 24, 2008 at 13.45 hours at Sales Tax Check Post, Walayar. 8540 litres of spirit was recovered from the vehicle. The brass tokens were also recovered. In connection with the above seizure of spirit, the excise department had registered Crime No.3/2008 and it was transferred to the police department for further investigation. The above case is being investigated by Circle Inspector of Police, Kasaba in Crime No.26/2008 for offences punishable under Sections 407, 420, 120-B read with Section 34 I.P.C and under Section 55(a) of the Abkari Act. WP(CRL)449&464/08 :: 3 :: 6. It is further revealed from the grounds of detention that a special investigating unit under the control of Inter State Illicit Spirit Movement Investigation Team (ISISMIT) is in charge of the investigation and that the detenu along with some others had been party to the criminal conspiracy to smuggle spirit into Kerala by misusing brass tokens meant for transportation of cement from Malabar Cements Ltd through green channel at the check post. It is also revealed that the investigating agency had already arrested some of the accomplices of the detenu. Though the investigation is complete, charge sheet could not be laid against the accused since some of them are still at large. The grounds of detention also refer to an earlier episode of a similar crime involving the detenu. The allegation appears to be that the detenu along with some others had smuggled illicit spirit into Kerala in a lorry bearing Registration No.KL 10 L 6047. 7. We do not propose to refer to the details of the above and other crimes which are referred to in Ext.P2 grounds of detention, in view of the order that we propose to pass in these two cases. Suffice it to say that the detenu Sri. WP(CRL)449&464/08 :: 4 :: Ramesh, who is allegedly involved in several cases of smuggling of illicit spirit to Kerala has been ordered to be detained on the basis of the subjective satisfaction arrived at by the authorised officer. 8. In W.P.(Crl.)No.464/2008, Sri. Santhosh, S/o. Natesh, is the detenu. He is also alleged to have indulged in smuggling of illicit spirit to Kerala. The last such episode in which the detenu is allegedly involved is also in relation to seizure of 8500 litres of spirit from vehicle No.KL 11 Q 1903 referred to above. In this case, the order of detention was issued by the authorised officer on November, 20, 2008. In Ext.P2, the authorised officer refers to certain other crimes of similar nature as well, in which the detenu had been allegedly involved. Yet again, we do not deem it necessary to refer to those crimes in view of the order that we propose to pass. 9. Sri. M.K. Damodaran, learned senior counsel appearing for the petitioners assails the two orders of detention primarily on the following grounds: (a) The conclusion arrived at by the authorised officer that the two detenus are “known goondas” as defined under Section 2(o) of the Act is totally WP(CRL)449&464/08 :: 5 :: erroneous and untenable. (b) The order of detention is vitiated by failure of the authorities to furnish copies all the relevant documents especially the bail orders. ( c) The two detenus who admittedly hail from the State of Karnataka know only Kannada. They are not familiar with or well versed in English. They do not know Malayalam at all. Further, most of the vital documents including the order of detention furnished to the detenus are in English. Translated versions of only 6 out of 31 documents have been furnished to the detenu. (d) Non application of mind is writ large on the face of the orders of detention. (e) The order of detention is also vitiated due to non-compliance of the provisions contained in Sections 7(1), 7(3) and also Section 10(3) of the Act. 10. The learned senior counsel however submits that even before he addresses his arguments on the points formulated above, he will first of all raise the question of sustainability of the order in view of serious illegality committed by the Advisory Board while giving its opinion to the Government that there was sufficient reason to continue the detention of the detenus for the maximum period of six months. WP(CRL)449&464/08 :: 6 :: 11. It is pointed out by the learned senior counsel that in their separate representations submitted by the detenus before the Advisory Board, it was specifically requested by them that they may be permitted to engage a counsel to argue their case before the Advisory Board. But, the two detenus were denied the said privilege. He concedes that the detenus were heard by the Advisory Board. But, the detenus being not conversant either in English or Malayalam and the members of the Board not being well versed in Kannada, it was impossible for the two detenus to make their submissions effectively. It is the contention of the learned senior counsel that denial of opportunity to engage a counsel before the Board has resulted in grave prejudice and irreparable injury to the detenus. 12. Per contra, it is contended by Sri. Ravindranath, learned Additional Director General of Prosecutions, that the grievance now aired on behalf of the two detenus is only imaginary and wholly unsustainable. It is contended by Sri. Ravindranath that involvement of the two detenus in the illegal smuggling activities is beyond dispute as revealed WP(CRL)449&464/08 :: 7 :: from the materials collected by the investigating agency. Though it may be correct to say that translated copies of all the documents were not furnished to the detenus, Kannada translation of the relevant and material documents, particularly the grounds of detention was in fact furnished to them to enable them to understand the reason why they were ordered to be detained. It is also pointed out by the learned counsel that translated versions of the confession statements of the accomplices like Sampath, Dhipin, Muthukumar etc indicating involvement of the detenus were also furnished to the detenus. It is further contended by Sri.Ravindranath that non- furnishing of translated version of some other documents will not have any adverse impact at all. It is pointed out by him that the records clearly reveal that both the detenus know English. In fact Sri. Santhosh, the detenu in W.P.(Crl).464/2008, had his school education in an English Medium Convent as admitted by him before the Advisory Board. It is thus contended by Sri. Ravindranath that the contentions to the contrary now raised on behalf of the detenus are only to be repelled. WP(CRL)449&464/08 :: 8 :: 13. As regards the primary contention now raised by the learned senior counsel, namely refusal of the Board to permit the detenus to engage a counsel at the time of hearing, it may at once be noticed that the Board had held hearing of the two cases on December 16, 2008 and January 14, 2009 respectively. The first hearing was held at Central Prison, Viyyur and the second at Trichur. The exact venu where the sitting was held is not discernible from the proceedings of the Advisory Board. But, it is beyond controversy that the detenus were not given the assistance of counsel. 14. It is the specific case of the petitioners that the detenus had in their respective representations, requested for permission to engage a counsel. In fact, it is seen from Ext.P6, copy of the representation submitted before the Board, that it was preferred by their counsel. The detenus requested specifically that their counsel (whose name was indicated) be heard in the matter. 15. Sri. Ravindranath, learned Additional Director General of Prosecution has made available a copy of the report of the Advisory Board before us for our perusal. While dealing with WP(CRL)449&464/08 :: 9 :: the request made by the detenus to allow them to engage a counsel, the Advisory Board in its report has observed thus: “The detenus stated in its written representation that it would be just and proper to hear Sri. O.V. Maniprasad, Advocate, who is his counsel. But neither Sri. Maniprasad nor any other legal practitioner filed any memo of appearance or any petition requesting to permit any such lawyer to appear on behalf of the detenu. When the detenu was heard in person, he did not make any prayer for hearing any Advocate on his behalf. Hence, we did not think it proper to post this case for hearing the counsel for the detenu, if any.” 16. Learned senior counsel submits that the procedure adopted by the Advisory Board is manifestly irregular, improper and illegal. Our attention is invited to a recent decision of their Lordships of the Supreme Court in State of Maharashtra v. Zubair Haji Qasim (2009 (1) SCC (Crl) 477). In the said decision, it has been held by the apex court that “even if the detenu had no right to appear through a legal practitioner in the proceedings before the Advisory Board, he was entitled to WP(CRL)449&464/08 :: 10 :: make a representation for the services of a lawyer to appear before the said Board which was under an obligation to consider the same dispassionately in the facts of the particular case”. 17. The above case arose from a judgment rendered by a Division Bench of the Bombay High Court which quashed the order of detention passed under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The request made by the detenu for permission to engage a legal practitioner was rejected by the Board holding that such prayer could not be considered “ for some obvious reasons”. The Division Bench of the Bombay High Court took exception to the above order and set it aside. While doing so, the Division Bench referred to an earlier decision of the Division Bench of the same High Court in Kekalwa Samuele Kongwa v. Union of India [(1985) 1 Bom. CR 742] in which it was held that a request made by a detenu for being represented by a legal practitioner must be considered on merits and cannot be turned down on the ground (i) that the law does not give such a right to the detenu, or (ii) that it was the WP(CRL)449&464/08 :: 11 :: practice of the Board not to allow representation of a detenu by a legal practitioner”. 18. The above decision of the Bombay High Court was challenged by the State of Maharashtra before the apex court even though the period of detention had already expired. It was contended on behalf of the State that the view taken by the Advisory Board could not be assailed particularly since Section 8(e) of the COFEPOSA Act did not contemplate grant of permission to a detenu to engage a counsel to represent him before the Board. It was also contended that Article 22(3) (b) of the Constitution of India did not enable a detenu to seek assistance of a counsel before the Advisory Board in a case of preventive detention. 19. In this context, it will be profitable to refer to Section 8 (e) of the COFEPOSA Act 1974 which reads thus: “8(e) a person against whom an order of detention has been made under this Act shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of WP(CRL)449&464/08 :: 12 :: the Advisory Board is specified, shall be confidential;” 20. But under Act 34 of 2007, a detenu is in fact given the right to seek assistance of a counsel, albeit with the permission of the Board. The relevant provisions in Section 10 of the Act are extracted hereunder: “10. Procedure of Advisory Board and further action: (1)................ (2) ............... (3) A person against whom an order of detention has been made under this Act shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board, and the proceedings of the Advisory Board and report, except that part of the report in which the opinion of the Advisory Board is specified, shall be confidential: Provided that the Board has power to permit legal practitioners in the cases deemed fit. (emphasis supplied) 21. A perusal of the above provision will undoubtedly show that the Board may at its discretion allow the detenu to seek the assistance of a legal practitioner to represent him before the WP(CRL)449&464/08 :: 13 :: Board. Section 8(e) of COFEPOSA Act is pari materia to sub- section (3) of Section 10 extracted above, except for the absence of the proviso in the former enactment. But incorporation of the proviso under sub-section (3) of Section 10 in Act 34/2007 will indicate that the Legislature intended to give legal assistance to a detenu in appropriate cases. Therefore we have no hesitation to hold that the detenus in this case were justified in requesting the Board to permit them to engage a counsel of their choice. 22. What remains to be considered is whether or not the Board was bound to pass a considered order on such a request made by the detenus in this case. As has been noticed already, the Board is vested with the discretionary power either to allow or disallow the request from a detenu to engage a counsel of his choice. Therefore, it would be only proper if a decision in that regard is communicated to the detenu. In the absence of such an order, the detenu may always have a grievance that the right given to him under the statute has been denied without assigning any reasons. This reasoning is well ingrained in the larger concept governing the principles of natural justice. WP(CRL)449&464/08 :: 14 :: 23. In the case on hand, the Board had not informed the detenus whether or not it was inclined to allow the prayer. The observation of the Board quoted by us earlier will definitely show that the Board declined the prayer, since the counsel named in the representation had not filed a memo of appearance. It was further observed by the Board that the detenus had not made any prayer at the time of hearing to give them the assistance of an Advocate. 24. The above observation clearly indicates that the Board might have been inclined to hear the counsel if he had filed his memo of appearance, or if the detenus had made such a specific request. Obviously the detenus could not take any steps to engage a counsel in the absence of a reply from the Board in response to their request. Resultantly the counsel also could not file his memo of appearance. It is in the above circumstances that we have observed earlier that the Board ought to have taken a decision and communicated the same to the detenus on their request to allow them to engage a counsel. 25. In Smt.Kavitha v. State of Maharashtra and Ors. ((1981)3 SCC 558 which arose under the COFEPOSA Act it was WP(CRL)449&464/08 :: 15 :: held thus: “While Section 8(e) disentitles a detenu from claiming as of right to be represented by a lawyer, it does not disentitle him from making a request for the service of lawyer. Often adequate legal assistance may be essential for the protection of right to procedural fairness, which is a part of the fundamental right guaranteed by Article 21 of the Constitution, as also right to be heard given to the detenu under section 8 (e), COFEPOSA Act Therefore, where a detenu makes a request for legal assistance, his request would have to be considered on its own merit in each individual case. 26. In Nand Lal Bajaj v. State of Punjab & anr. ((1981 4 SCC 327) an order of preventive detention issued under Section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act 1980 was under challenge. The procedure adopted by the Advisory Board in allowing legal assistance to the State and denying such assistance to the detenu was assailed in this case. Their Lordships noticed that under Section 11(4) of the above Act which is in pari materia with Section 8(e) of the COFEPOSA Act, the detenu would not be entitled to get the assistance of a legal practitioner as of right WP(CRL)449&464/08 :: 16 :: before the Advisory Board. But still, there was nothing on record to indicate that the Advisory Board had considered the request made by the detenu to give him legal assistance. The court therefore held that even if under Section 11(4) the detenu had no right to get legal assistance, it did not preclude the Board to allow such assistance to the detenu, especially when it allowed the State to be represented by an array of lawyers. The court proceeded to hold that the Advisory Board was bound to consider the request made by a detenu even if the Act did not entitle him to get legal assistance. The following observation of their Lordships in the above case is apposite: “Arbitrariness is the very antithesis of Article 14. The principle of reasonableness is an essential element of equality and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. The history of personal liberty is largely the history of procedural safeguards. The need for observance of procedural safeguards, particularly in cases of deprivation of life and liberty is, therefore, of prime importance to the body politic. It is increasingly felt that in the context of “deprivation of life and liberty” under Article 21, the “procedure established by WP(CRL)449&464/08 :: 17 :: law” carries with it the inherent right to legal assistance. The right to be heard before the Advisory Board would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.” 27. It is trite that preventive detention is not punitive nor is it an alternative to criminal trial. Any preventive detention is in derogation or deprivation of the fundamental right guaranteed to a citizen under Article 21 of the Constitution. Courts in this country have always been very sensitive when it came to the question of curtailment of personal liberty of a citizen. Courts have always zealously come to the rescue of a detenu who is detained under preventive detention laws. The authority exercising the power of detention must always ensure that it acts with absolute fairness, equity and good conscience. The authority must ensure that there is transparency in its action and the procedure prescribed under the relevant statute is scrupulously followed. 28. It is the settled position of law that “plea of no prejudice” in its abstract sense is anathema to preventive detention. If a statute prescribes certain procedures, the detaining authority has to WP(CRL)449&464/08 :: 18 :: necessarily comply with them. Statutory mandates cannot be watered down or rendered illusory through a specious plea that no prejudice will be caused to the detenu even if any of the statutory safeguards is denied to him. The above larger principles of law would apply to the Advisory Board with greater force, not only because it is a statutory body constituted under Section 8 of Act, but also since Sub Section (3) of Section 10 specifically empowers the Board to give assistance of a legal practitioner to a detenu. 29. In the case on hand, the two detenus had made a specific request to the Board that they may be given assistance of a legally trained person while hearing their cases. It is not in dispute that the said privilege was denied to them. The observation of the Board extracted supra will indicate that the Board was not in fact averse to providing assistance of a counsel to the detenus. In our view, the Board could have, while issuing notice to the detenus, informed them that they could avail of the services of a counsel. If such a notice had been issued, the detenus might have been in a position to engage a counsel of their choice. But for some unknown reasons, the Board did not choose to do so. In the light of the principles laid down in the judicial WP(CRL)449&464/08 :: 19 :: precedents cited above and also on the face of the proviso under sub-clause (3) of Section 10 of Act 34/2007, we have no hesitation to hold that the contention raised by the learned senior counsel is well founded. In that view of the matter, the order passed by the Advisory Board cannot be sustained. Consequently the order passed by the Government confirming Ext.P1 order of detention also cannot be sustained. 30. Having regard to the entire facts and circumstances, we are satisfied that the two orders of detention are vitiated because of the refusal by the Board to allow the detenus to engage their counsel. 31. Therefore, the orders of detention issued by the authorised officer (Ext.P1 in both the cases) are set aside. 32. The detenus namely Santhosh, S/o. Natesh, 6/22, IVth Cross, Chamarajpet, Azad Nagar, Bangalore, Karnataka and Ramesh, Slo. Mallik Shetty, Ambaprasad Apartment, Near Uma Talkies, Samrajpet, Bangalore, Karnataka shall be released from detention forthwith, if their