IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 WP(Crl.).No. 341 of 2009(S) --------------------------- PETITIONER: --------------- SHINY A., W/O.PADMANABHAN, T.C.32/194, MANAKKATTUVILAKOM, KARIKKAKOM MURI, MADHAVAPURAM, KADAKAMPALLY, THIRUVANANTHAPURAM. BY ADV. SRI.SUMAN CHAKRAVARTHY SMT.K.R.RIJA RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE ADDL. CHIEF SECRETARY (SECRETARY, HOME AFFAIRS), SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, THIRUVANANTHAPURAM. 3. THE DEPUTY COMMISSIONER OF POLICE(L&O), THIRUVANANTHAPURAM CITY, OFFICE OF THE COMMISSIONER OF POLICE, THIRUVANANTHAPURAM. 4. THE SUPERINTENDENT, CENTRAL PRISON, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SHRI C.M.KAMMAPPU ADDL.DIR.GENL(PROCN).SHRI K.K.RANINDRANATH THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 16/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: “CR” R.BASANT & M.C.HARI RANI, JJ. -------------------------------------------------- W.P.(Crl.)No.341 OF 2009 ----------------------------------------------------- DATED THIS THE 16th DAY OF OCTOBER, 2009 J U D G M E N T Basant, J. Is the detaining authority justified in reckoning the detenu as a `goonda', when the sponsoring authority had only reported that he is a `rowdy', to pass an order of detention under Sec.3(2) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (for short `the KAAPA')? This question, inter alia, arises for consideration in this writ petition. 2. To the vital facts first: The petitioner is the wife of the detenu by name `Padmanabhan' who has been ordered to be detained under Sec.3 of the KAAPA under Ext.P1 order dated 29/6/09 passed by the 2nd respondent. Such detention was on the basis of a report dated 20/6/09 submitted to the 2nd respondent by the 3rd respondent under Sec.3(1) of the KAAPA. The detenu has been arrested on W.P.(Crl.)No.341/09 - 2- 23/7/09. The order of approval and order of confirmation have already been passed under Secs.3(3) and 10(4) of the KAAPA. The detenu thus continues in custody. 3. The 3rd respondent had sponsored the detention of the detenu on the basis of 5 cases which are given below: Sl. No. Date of occurrence Crime No. Offences (inter alia) Status Remarks 1 15/10/2002 232/02 Secs. 452 & 506(ii) read with Sec.34 IPC Trial pending Nil 2 17/10/2002 233/02 Secs.506(ii) & 427 read with Sec.34 Trial pending Nil 3 06/04/09 172/09 Sec. 308 read with Sec. 149 Investigation pending Nil 4 04/05/09 217/09 Sec.307 read with Sec. 34 Investigation pending Nil 5 06/04/09 170/09 Sec.332 read with Sec.149 Investigation pending Nil 4. In addition to the above 5 cases referred to, there is also the circumstance relied on by the sponsoring authority that the detenu is a registered rowdy of the Valiathura Police Station and history sheet No.37 is currently maintained against him. It is admitted that such history W.P.(Crl.)No.341/09 - 3- sheet has been opened by the police only after the registration of the last crime referred above. 5. The learned counsel for the petitioner and the learned Additional Director General of Prosecutions have advanced arguments before us. The learned counsel for the petitioner assails the detention of the detenu, inter alia, on the following grounds: (i) There has been no proper application of mind by the detaining authority before Ext.P1 order of detention was passed. (ii) The history sheet - Ext.P5, has been opened with the transparent intention of subjecting the detenu to harassment under the KAAPA and the same is hence liable to be ignored. 6. Grounds 1 and 2: Various grounds have been urged under the head of “non-application of mind” by the detaining authority. It may not be necessary to advert to all W.P.(Crl.)No.341/09 - 4- the contentions advanced under this broad head in detail. We shall advert only to the contentions which we think are most relevant. 7. It is by now trite that an order of detention under Sec.3 can be passed by the detaining authority only after he entertains both the satisfactions insisted by Sec.3 of the KAAPA. The initial threshold satisfaction must be entertained that the detenu is either a known goonda or a known rowdy. This is an objective satisfaction. There is nothing subjective in this former part of the satisfaction. On the materials placed before the detaining authority, the detaining authority must entertain the satisfaction that the detenu is a `known goonda' as defined under Sec.2(o) of the KAAPA or a `known rowdy' as defined under Sec.2(p) of the KAAPA. Unless this initial satisfaction is validly entertained by the detaining authority, there can be no possibility of a valid order of detention being passed. W.P.(Crl.)No.341/09 - 5- 8. It will be apposite straightaway to note that the requirements to bring a person within the sweep of the expression `known goonda' in Sec.2(o) and `known rowdy' under Sec.2(p) of the KAAPA are totally different and distinct. A `goonda' is defined under Sec.2(j) and a `known goonda' is defined under Sec.2(o) of the KAAPA. A `rowdy' is defined under Sec.2(t) and a `known rowdy' is defined under Sec.2(p) of the KAAPA. At the outset we only note that the circumstances to be established to bring a person within the sweep of `known goonda' and `known rowdy' are different and distinct. 9. We now refer to the latter satisfaction under Sec.3. After entertaining the requisite former objective threshold satisfaction, the detaining authority must be satisfied that such known goonda or known rowdy (whichever he be) deserves to be detained in order to prevent him from indulging in anti-social activity. This latter satisfaction is W.P.(Crl.)No.341/09 - 6- subjective and all relevant circumstances have to be considered by the detaining authority before he proceeds to entertain such subjective latter satisfaction. The initial objective satisfaction is justiciable; whereas the latter objective satisfaction is not justiciable. 10. Having said so, we will advert to the first contention that the 5th case referred above is not one which can be taken into consideration to bring a person within the sweep of either a known goonda or a known rowdy. The learned Additional Director General of Prosecutions fairly accepts this contention and submits that the 5th case can safely be excluded while considering whether the detenu is a known goonda or a known rowdy. Sec.2(o)(ii) as well as Sec.2(p)(iii) show that crimes registered suo motu by the police will have to be excluded while considering whether a person is a known goonda or a known rowdy. 11. The 6th circumstance (in addition to cases 1 to 5 W.P.(Crl.)No.341/09 - 7- shown in the tabular column above) relied on by the sponsoring authority and detaining authority is the opening of a history sheet against the detenu and registering him as a rowdy. This has been done only on the basis of the five cases referred above. In these circumstances, we are satisfied that the said 6th circumstance cannot at all be taken into consideration while considering the inclusion of the detenu as a known rowdy or known goonda. The same cannot also be taken into reckoning while considering the latter subjective satisfaction, as the mere opening of a rowdy sheet will be irrelevant for that purpose also. In these circumstances, the said 6th circumstance can also be ignored. The second ground of challenge consequently becomes irrelevant. The 6th circumstance can have no bearing or impact on the impugned order of detention. We shall not hence go into that ground of challenge in this Writ Petition. The option of the detenu to challenge Exhibit P4 W.P.(Crl.)No.341/09 - 8- order by initiating appropriate proceedings shall remain unfettered. 12. We take the view, in these circumstances that the 5th case and the 6th circumstance can be eschewed while considering the validity of the detention. 13. We now come to the main contention raised by the learned counsel for the petitioner. The learned counsel contends that the detenu has been sponsored for preventive detention by the sponsoring authority, the 3rd respondent on the only ground that he is a known rowdy. He has not been sponsored for detention by the sponsoring authority on the ground that he is a known goonda. But the impugned order of detention Exhibit P1 passed by the detaining authority describes the detenu as a known goonda and it is on that basis that the order of detention is passed. The crux of the contention of the learned counsel for the petitioner is that due, proper and alert application of mind W.P.(Crl.)No.341/09 - 9- has not preceded before the detaining authority chose to pass the order of detention assuming and reckoning the detenu to be a known goonda. This, contends the learned counsel for the petitioner, seriously affects and vitiates the order of detention. It also affects the right of the detenu to make appropriate representation before the Government and the Advisory Board. In short, the learned counsel contends that in the absence of application of mind on this crucial aspect as to whether the detenu must be treated as a known rowdy as stated by the sponsoring authority or as a known goonda as reckoned by the detaining authority, the impugned order is vitiated. 14. To appreciate this argument clearly, one must first of all proceed to the definition of 'rowdy' and 'goonda' under Section 2(t) and 2(j) of the KAAPA. We extract Section 2(t) below. “2(t) “rowdy” means and includes a person who either by himself or as a member of a gang commits or attempts to commit, or abets the commission of W.P.(Crl.)No.341/09 - 10- any offences under Sections 153A and 153B of Chapter VIII and Chapters XV, XVI, XVII & XXII of the Indian Penal Code, 1860(Central Act 45 of 1860), or any offences under the provision of the Arms Act, 1959 (Central Act 54 of 1959), or the Explosive Substances Act, 1908 (Central Act 6 of 1908), (i) punishable with five or more years of imprisonment of any type, or; (ii) with less than five years of imprisonment of any type, except those punishable with less than one year of imprisonment; or (iii) such offences under any other law for the time being in force, coming under item (i) or (ii), as may be notified by the Government, from time to time.” 15. A reading of Section 2(t) shows that any person who either by himself or as a member of a gang commits or attempts to commit, or abets the commission of any of the specified offences under the Indian Penal Code or the Arms Act or the Explosive Substances Act will fall within the sweep of the expression 'rowdy'. What is crucial to note is that the definition of 'rowdy' under Section 2(t) does not at all refer to anti-social activity referred to in Section 2(a). Though objects and reasons suggest that KAAPA has been enacted to effectively prevent organised crimes, there is W.P.(Crl.)No.341/09 - 11- nothing in Section 2(t) which indicates that the offences referred to in Section 2(t) must relate to organised criminal activity or anti-social activity. The commission of any of the offences referred to in Section 2(t) or attempt or abetment of such crime will bring a person within the sweep of the definition 'rowdy' in Section 2(t). 16. The learned counsel for the petitioner contends that the allegation against the petitioner raised in the report of the sponsoring authority (the report of the 3rd respondent has been placed before us by the learned Additional Director General of Prosecutions) does not at all show that the detenu was anything other than a rowdy. There is no specific allegation of any involvement in an organised crime or anti social activity in respect of the five cases referred above. The learned counsel contends that the detenu has been described to be a rowdy by the sponsoring authority only for the reason that he was involved in 5 crimes referred W.P.(Crl.)No.341/09 - 12- above which fall within the sweep of the crimes referred to in Section 2(t). The learned counsel particularly points out that there is no specific allegation that any of such crimes relate to organised criminal activity or anti social activity as defined in Section 2(a). 17. It is in this context that we have to refer to the definition of goonda in Section 2(j). We extract the same below. “goonda” means a person who indulges in any anti-social activity or promotes or abets any illegal activity which are harmful for the maintenance of the public order directly or indirectly and includes a bootlegger, a counterfeiter, a depredator of environment, a digital data and copy right pirate, a drug offender, an hawala racketeer, an hired ruffian, rowdy, an immoral traffic offender, a loan shark or a property grabber.” 18. A reading of the definition of goonda in Section 2 (j) shows that the definition has two parts. Any person who indulges in any anti social activity or promotes or abets illegal activities which are harmful for the maintenance of the public order directly or indirectly would fall within the W.P.(Crl.)No.341/09 - 13- expression goonda by the operation of the former first part of the definition. Not satisfied with that former part, the latter part of the definition, by a deeming fiction as it appears included the following, ie. 1. a bootlegger, 2. a counterfeiter, 3.a depredator of environment, 4.a digital data and copy right pirate, 5.a drug offender, 6.an hawala racketeer, 7.a hired ruffian, 8. a rowdy, 9.an immoral traffic offender, 10.a loan shark or 11.a property grabber also within the sweep of the definition ‘goonda’. All these expressions are defined in Section 2 of the KAAPA . The learned counsel contends, and we find it easy to accept that contention, that so far as these specified persons in the latter half of the definition of goonda under Section 2(j) are concerned, they get included in the definition of goonda , W.P.(Crl.)No.341/09 - 14- even when they do not satisfy the former part. They are fictionally assumed to be goondas under the inclusive latter limb of the definition. 19. The learned counsel hence argues that the sponsoring authority has chosen to include him as a rowdy on the basis that the cases against him would fall within the offences specified under Section 2(t) and not because he indulges in any anti-social activity or promotes or abets illegal activities which are harmful for the maintenance of the public order. The learned counsel argues that going by the report of the sponsoring authority, he is only a rowdy. 20. It will be apposite in this context to refer to the definition of known rowdy under Section 2(p) . We extract the same below. “2(p). “known rowdy” means any person, who had been, by reason of acts done within the previous seven years as calculated from the date of the order imposing any restriction or detention under this Act,- (i) made guilty, by a competent Court at least once for an offence of the nature W.P.(Crl.)No.341/09 - 15- under item (i) of clause (t) of Section 2 or any offence notified as such under the said clause; or (ii) made guilty, by a competent Court at least twice for any offence of the nature mentioned under item (ii) of clause (t) of Section 2 or any offence notified as such under the said clause; or (iii) found, on investigation or enquiry by a competent police officer or other authority, on complaints initiated by persons other than police officers,in three separate instances not forming part of the same transaction to have committed any offence mentioned in clause (t) of Section 2: Provided that any offence committed by a person, - (i) by virtue of his involvement as a member of the family or a close relative of the family, in an incident which took place by reason of a family dispute or quarrel involving family members of close relatives on either side; or (ii) by virtue of his involvement as a neighbour or as a close relative of the neighbour in an incident which occurred due to a dispute between immediate neighbours; or (iii) by virtue of his involvement as an employee of any establishment in an incident which occurred in connection with a dispute between himself and the establishment with regard to the conditions of service; or (iv)as a member of the student community in a recognised educational institution, by virtue of his involvement, merely by his presence but without any overt act constituting the offence mentioned in clause (t) of Section 2 without being involved in any criminal conspiracy W.P.(Crl.)No.341/09 - 16- facilitating the same, in an incident which occurred due to the general involvement of students of the institution in that particular incident; or (v) as a member of a recognised political party, by virtue of his involvement merely by his presence, but without any overt act constituting the offence mentioned in clause (t) of Section 2 without being involved in any criminal conspiracy facilitating the same, in an incident which occurred due to the general involvement of the workers of that party in an agitation or protest or programme organised by the party with prior information given to the police officer or Magistrate having jurisdiction; or (vi)by virtue of his involvement in a criminal act committed by him before he had attained the age of eighteen years, shall be omitted from the computation of the number of offences taken into account for deciding whether a person is a known rowdy.” 21. For a rowdy to fall within the sweep of the definition known rowdy, under clause (iii) of Section 2(p) there must be three cases against him. We are not referring to Section 2p(i) or (ii), because there is no contention that they would at any rate be answered by the detenu herein. In respect of rowdy who has not already been convicted in any case, he may come within the sweep W.P.(Crl.)No.341/09 - 17- of the definition of known rowdy under clause (iii) of Section 2(p)only if there are three such cases against him. 22. The learned counsel relies on this to point out the distinction between the definition of ‘known goonda’ under Section 2(o) and the definition of ‘known rowdy’ under Section 2(p). For the sake of easy reference, we extract Section 2(o) immediately. “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 W.P.(Crl.)No.341/09 - 18- articles violating copy right, 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.” 23. The counsel draws our attention to Section 2(o) (ii) and Section 2(p)(iii) to point out that two such cases are sufficient to bring a person within the sweep of the expression ‘known goonda’ under Section 2(o)(ii) whereas three such cases are necessary to bring him within the sweep of the expression ’known rowdy’ under Section 2(p) (iii). The learned counsel further contends that the provisos (i) to (vi) of Section 2(p) are not there under Section 2(o). In these circumstances, the basis on which the order of detention is passed against a person under Section 3 – whether treating him as a known goonda under Section 2(o) or a known rowdy under Section 2(p), is of seminal importance for a detenu. Three cases are necessary under Section 2(p) (iii) and he is entitled to the protection of the provisos to Section 2(p) whereas only two cases are W.P.(Crl.)No.341/09 - 19- necessary under Section 2(o) (ii) and the protection of the six provisos shall not be available for a person proceeded against as known goonda. 24. The crux of the contention of the learned counsel for the petitioner is that the course adopted by the detaining authority - of treating him as a known goonda contrary to the recommendation of the sponsoring authority that he is a known rowdy, is a matter of great consequence so far as the detenu is concerned. Lightly or casually, a person who is sponsored for detention as a known rowdy cannot, all on a sudden, be treated as a known goonda by the detaining authority as the scope of the defences that can be raised and the nature of the representations that can be made to the Government and the Advisory Board will be significantly different in so far as a known goonda and known rowdy are concerned. 25. The learned counsel in these circumstances W.P.(Crl.)No.341/09 - 20- contends that even assuming that the detaining authority can disagree with the sponsoring authority and treat a known rowdy sponsored so by the sponsoring authority as a known goonda for the purpose of detention, the detaining authority must properly, correctly and fully apply his mind to that aspect. Such consideration must be reflected in the order of detention. The learned counsel in these circumstances contends that significantly and vitally, the impugned order of detention does not at all reveal why the detenu sponsored for detention by the sponsoring authority as a known rowdy is treated as a known goonda by the detaining authority. Such need to convert a known rowdy into a known goonda contrary to the report of the sponsoring authority must be explained by sufficient reasons by the detaining authority. Alert, anxious and pointed application of mind must precede such alteration and transformation of the basis of detention. Such consideration W.P.(Crl.)No.341/09 - 21- and explanation must be clearly reflected in the order of detention. The failure to rivet the pointed attention of the detaining authority to that aspect deprives the detenu of a lot of rights which he has. His right to contend that three cases required under Section 2(p)(iii) are not there against him and his contention that he is entitled to the protection of the provisos (i) to (vi) of Section 2(p) are denied to him by such transformation of his status from a known rowdy to known goonda. This cannot be done without proper and pointed application of mind. The want of such application of mind and consideration vitiates the order of detention, contends the learned counsel for the petitioner. 26. Prima facie, the contention appears to be impressive to us. To appreciate the importance of this contention in the present fact scenario, we shall now visit the facts again. The learned counsel contends that there are only two cases in which final reports have been filed against him, i.e., cases 1 and 2 above. In respect of cases W.P.(Crl.)No.341/09 - 22- 3 and 4, no final reports have, so far been filed. Of course, the dictum Elizebath George v. State of Kerala (2008 (4) KLT 425), indicates that filing of the final report is not a condition precedent and the cases in which final report has not been filed can also be taken into account while considering the play of Section 2(p)(iii) and 2(o)(ii). We have already referred that question to the Full Bench as per our decision in the order of reference dated 9.9.2009 in W.P.(C)No.20606/2009. We have already agreed that case No.5 and the rowdy list shown as the 6th circumstance cannot be taken into account. In that event, the counsel contends, that if cases 3 and 4 can be excluded, he would not have fall within Section 2(p)(iii) as there will be only two and not three cases against him. 27.