IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 6TH OCTOBER 2009 / 14TH ASWINA 1931 WP(Crl.).No. 323 of 2009(S) --------------------------- PETITIONER: --------------- SHRUTHI P., W/O.RAVI.K., BEEUMANADKA HOUSE, NEERCHAL, KASARAGOD. BY ADV. SRI.BECHU KURIAN THOMAS SRI.PAUL JACOB (P) SRI.ROSHEN.D.ALEXANDER SMT.INDU SUSAN JACOB SMT.NISHA JOHN RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF HOME AFFAIRS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT MAGISTRATE (DISTRICT COLLECTOR), KASARAGOD. 3. SUPERINTENDENT, CENTRAL PRISON, KANNUR. ADDL.DIR.GENL(PROSCN). SRI.K.K.RAVINDRANATH GOVERNMENT PLEADER SRI.C.M.KAMAPPU FOR R1 TO 3 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 06/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ W.P(Crl.) No.323 of 2009 ------------------------------------- Dated this the 6th day of October, 2009 JUDGMENT BASANT, J. What is the nature and quality of consideration which a representation made by a detenu under Article 22(5) of the Constitution of India and Section 7(2) of the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred to as the `KAAPA') must receive at the hands of the Government? Does the failure to give a real and proper consideration by the Government vitiate continued detention? These questions arise mainly for consideration in this Writ Petition. (2) In this application for issue of a writ of habeas corpus filed under Article 226 of the Constitution of India, the petitioner, the wife of the detenu, assails Ext.P1 order of detention passed under Section 3(1) of the KAAPA against the detenu. 2. The petitioner is the wife of K.Ravi, the detenu. The detenu was involved in as many as 5 cases; the details of which are given below: W.P(Crl.) No.323 of 2009 2 Sl. No Case No. Date of offence Offences alleged Status of the case Final report filed by the police Relevant document 1 C.C.953/06 between 26.02.2006 and 03.03.2006 454,380,461 I.P.C acquitted 11/11/08 Ext.P6 2 C.C.255/08 03/02/08 341, 323, 324 r/w 34 I.P.C pending trial on 02.07.09 (but compounded on 28.07.09) Ext.R2(k) Ext.P7 3 C.C.509/08 02/05/08 341, 323, 294 (b) r/w 34 I.P.C pending trial Ext.R2(j) Nil 4 C.P.237/08 07/09/08 427, 506(i) & 308 I.P.C pending trial Ext.R2(h) Nil 5 S.T.C.758 of 2008 11/07/08 160 I.P.C Pleaded guilty on 18.11.2008. Rs.100/- imposed Nil Nil 3. The Superintendent of Police, Kasargod, by his report under Section 3(1) of the KAAPA dated 23.01.09 [copy produced as Ext.R2(g)], submitted a proposal to the 2nd respondent (District Magistrate) to invoke the powers under Section 3(i) of the KAAPA to detain the detenu. Accepting the report of the sponsoring authority, Ext.P1 order of detention was passed on 16.02.2009. The order could not be executed W.P(Crl.) No.323 of 2009 3 for some time. Finally in execution of Ext.P1 order, the detenu was arrested and detained on 02.07.2009. Copies of the order and grounds were furnished to the detenu in due time and the detenu submitted Ext.R2(m) representation dated 08.07.09 to the Government. That representation submitted through the prison authorities was received by the prison authorities on 08.07.09 and it was forwarded to the Government. The Government allegedly received the same on 13.07.09. In the meantime, Ext.P5 order of approval dated 10.07.09 was passed by the Government under Section 3(3) of the KAAPA. After receipt of Ext.R2(m) representation, the Government, by Ext.P8 order dated 17.07.09, rejected the said representation. In accordance with the provisions of the KAAPA, the Advisory Board considered the matter and opined to the Government that there was sufficient reason to justify detention. Accordingly Ext.R1(a) order dated 26.08.09 was passed by the Government confirming the order of detention under Section 10(4) of the KAAPA. Accordingly the detenu will have to remain in custody for a period of 6 months from 02.07.09. It is at this juncture that we are called upon to consider the W.P(Crl.) No.323 of 2009 4 request of the petitioner, the wife of the detenu to set aside the order of detention and to set the detenu at liberty. 4. We have heard the learned counsel for the petitioner and the learned Additional Director General of Prosecution. The learned counsel for the petitioner assails the impugned order and the continued detention on the following: GROUNDS I) 2 of the 5 cases referred above should not at all have been reckoned as relevant to decide whether the detenu is a known goonda or a known rowdy. II) The remaining 3 cases also do not bring the detenu within the sweep of the expression “known goonda/known rowdy” inasmuch as there is no allegation therein of the detenu having been involved in any organised crime affecting public order. III) The alleged contumacious acts even if true could not have instilled the latter subjective satisfaction under Section 3 of the KAAPA in the mind of the authorities that there was any threat to public order. W.P(Crl.) No.323 of 2009 5 IV) There has been no proper application of mind by the sponsoring authority or the detaining authority before passing Ext.P1 order. V) The Government before passing the order of approval under Section 3(3) had not applied its mind properly and correctly. VI) The valuable right of the detenu under Article 22(5) of the Constitution of India and Section 7(2) of the KAAPA to get his representation Ext.R2(m) considered properly by the Government has been violated by the Government in passing Ext.P8 order. Ground No.I 5. The objection is raised regarding case No.1 and Case No.5 shown in the tabular column given above. The order of detention Ext.P1 was dated 16.02.2009. The report of the sponsoring authority Ext.R2(g) was submitted on 23.01.09. Case No.1 had ended in acquittal on merits as early as on 11.11.08. Case No.5 had also come to an end on 18.11.2008 on which day plea of guilty of the detenu was accepted and a fine of Rs.100/- was imposed on him. Both these cases were not current and live on the dates of Ext.R2(g) and Ext.P1. The W.P(Crl.) No.323 of 2009 6 sponsoring authority erred grossly in assuming that these cases are pending. The detaining authority also erred in accepting the sponsoring authority's report that these 2 cases are pending. For the reason that these 2 cases were not pending on the dates of Ext.R2(g) and Ext.P1, the action of the sponsoring authority and the detaining authority is vitiated. Moreover it is submitted that the 5th case in which allegation is raised only under Section 160 I.P.C is not a case which can bring an offender within the sweep of the definition of a `known goonda or known rowdy' under Section 2(o) or 2(p) of the KAAPA. 6. We are in ready agreement with the learned counsel for the petitioner. Cases 1 and 5 having been disposed of long prior to Ext.R2(g) and Ext.P1, those should not have been taken into reckoning while considering whether the detenu is a known goonda or known rowdy on 16.02.09, the date of the order of detention. Further, the counsel is well founded in his contention that a prosecution under Section 160 I.P.C cannot bring a person within the sweep of a rowdy, goonda, known goonda or known rowdy under Sections 2(j), 2(t), 2(o) or 2(p) of the KAAPA. W.P(Crl.) No.323 of 2009 7 7. Though we agree with the contention of the learned counsel for the petitioner on this first ground, we are afraid that the detenu cannot claim any benefit on the basis of the said finding as cases 2 to 4, three in number, all of which were pending on the dates of Ext.R2(g) and Ext.P1, would certainly bring the detenu within the sweep of the expression `rowdy' in Section 2(t), `goonda' in Section 2(j) and `known goonda' in Section 2(o) of the KAAPA subject of course to our finding under Ground No.II. The prayer to invalidate the order of detention and the consequent detention on ground No.1 must, in these circumstances, fail. Grounds II and III 8. For the sake of convenience, we are considering the challenge on grounds II and III together. Under ground II it is contended that the remaining 3 cases should not have been taken into consideration and they could not have brought the detenu within the sweep of the expression `known goonda'. The crux of the contention is that the said 3 offences are not offences which reveal commission of any organised crime. 9. Under Ground No.III it is contended that inasmuch as reference is made to case Nos.II to IV, to justify W.P(Crl.) No.323 of 2009 8 entertainment of the latter subjective satisfaction, the order is vitiated because these 3 cases do not reveal any threat to public order and at worst what is revealed is only a threat to law and order. 10. The learned counsel for the petitioner places reliance on the statement of objects and reasons which prompted the legislature to pass the KAAPA. Reliance is placed particularly on paragraphs 1 and 2 of the statement of objects and reasons, which are extracted below: “Organised criminal activity has become a threat to both the economic and physical security of the State and Citizen. These activities thrive by pre- planned organisation, criminal networking and the profits generated from unlawful activities. These type of criminal activities create a feeling of insecurity in the society by intimidating or attacking law abiding citizens who oppose or give evidence against them. These organised criminals foil successful investigation and successful prosecution by exploiting the safeguards provided in general law to protect the average citizens against misuse of authority by official functionaries. (2) The existing laws are inadequate in preventing and controlling the organised criminal activity. Hence it became imperative to enact a legislation to prevent and control the organised anti- social activities in the State.” 11. The counsel further contends that the definition of a `goonda' in Section 2(j) as also the definition of `antisocial W.P(Crl.) No.323 of 2009 9 activity' in Section 2(a) and the definition of rowdy in Section 2 (t) must assume importance and significance in this context. We extract below Section 2(a), 2(j) and 2(t) of the KAAPA. Section 2(a): `Anti Social Activity' means acting in such manner as to cause or likely to cause, directly or indirectly, any feeling of insecurity, danger or fear among the general public or any section thereof, or any danger to safety of individuals, safety of public, public health or the ecological system or any loss or damage to public exchequer or to any public or private property or indulges in any activities referred in clauses (c), (e), (g), (h), (i), (l), (m), (n), (q), and (s) of this section. Section 2(j): `Goonda' means a 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 and includes a bootlegger, a counterfeiter, a depredator or 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.” Section 2(t): “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 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; W.P(Crl.) No.323 of 2009 10 (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. (emphasis supplied) 12. The learned counsel for the petitioner points out that the KAAPA is enacted by the Kerala legislature in exercise of its legislative competence as per Entry 3 of List III of Schedule 7 of the Constitution of India, which we extract below: “Preventive detention for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community; persons subjected to such detention.” (emphasis supplied) `Maintenance of public order' is the only ground on which the legislative competence to order detention of the detenue on the basis of 3 cases - cases 2 to 4 referred above, can be justified. The counsel contends that inasmuch as the said cases 2 to 4 do not reveal any organised criminal activity, they cannot be reckoned as sufficient to bring the alleged activity within the sweep of Section 2(a) and consequently to bring the detenu within the sweep of the expression 2(j) of the KAAPA. W.P(Crl.) No.323 of 2009 11 13. The counsel in this context places reliance on the decision of a Division Bench of this Court in Nisha Salim v. State of Kerala [2009(3) KLT 22]. In particular reliance is placed on para.8 and 8(a) of the said decision, which we extract below. “Para.8: It is undoubtedly true that personal liberty of a person cannot be trifled with by the Police or the executive authority at their whims and fancies. The power of detention has to be exercised by an authority authorised under law with utmost diligence and caution. The order of detention has to satisfy the test of reasonableness and fair play. The detaining authority has to arrive at the subjective satisfaction about the imperative need to detain a person after due application of mind. All the inputs gathered by the detaining authority must lead to the irresistible conclusion that the freedom of movement enjoyed by the detenu may be misused by him to create havoc or breach of peace in the society, thereby putting the peaceful life of the people in peril. It would be a shame if the law enforcing authorities throw up their arms in desperation saying that a particular individual in a given area or locality cannot be controlled by the Police force. The Indian Penal Code and other relevant enactments should, under normal circumstances, take care of situations which may have a propensity to disturb the peaceful life of the local people. The Magisterial powers given under the Code of Criminal Procedure are also sufficient to tackle any untoward situations. The Police authorities are given wide powers under the Police Act and other allied enactments to see that “law and order” and public order are maintained. If an individual creates any law and order problem, he can be dealt with by the Police using the powers vested in them. W.P(Crl.) No.323 of 2009 12 8A. It is true that preventive detention can become a draconian power if it is wielded by the executive or the Police at the drop of a hat. The threat to the society from the proposed detenue should be such that his activities cannot be controlled, or curtailed by using the ordinary means of prevention. It is trite that no citizen can be put behind the bars on the specious ground that he is likely to cause breach of peace in the locality or he may commit some crime in future, if he is allowed to move about freely. As contended by the learned counsel involvement of a person in “several cases” may not as such be a ground to use the power of preventive detention, particularly when the crimes allegedly registered against him are still under investigation.” 14. According to the learned counsel inasmuch as the allegations raised in cases 2 to 4 do not reveal the commission of any organised crime, they cannot be reckoned at all as relevant to decide whether the detenu is a rowdy and consequently a goonda and a known goonda. 15. The learned counsel for the petitioner contends that the distinction between threat to law and order and threat to public order must be alertly borne in mind by this Court while considering the challenge raised on the basis of these two grounds. The allegations raised against the detenu in cases 2 to 4, even if accepted in toto, do not reveal any organised criminal activity or threat to maintenance of public order and consequently those 3 cases should not have been taken into W.P(Crl.) No.323 of 2009 13 consideration to entertain the initial threshold objective satisfaction - as to whether the detenu is a known goonda or a known rowdy. They should not, at any rate, have been taken into consideration for entertaining the latter subjective satisfaction - as to whether the detenue deserves to be detained to prevent him from indulging in antisocial activities, contends counsel. 16. It will only be apposite straight away to consider the precedents relied on by the learned counsel for the petitioner. The counsel first of all relies on the observations of the Supreme Court in Arun Ghosh v. State of W.B [(1970) 1 SCC 98] (para.15) which are stated with approval in the later decision Ajay Dixit v. State of U.P [(1984) 4 SCC 400. We extract the same below: “It means therefore that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. The French distinguish law and order and public order by designating the latter as order publique. The latter expression has been recognised as meaning something more than ordinary maintenance of law and order. Justice Ramaswami in Writ Petition 179 of 1968 drew a line of demarcation between the serious and aggravated forms of breaches of public order which affect the community or endanger the public interest at large W.P(Crl.) No.323 of 2009 14 from minor breaches of peace which do not affect the public at large. He drew an analogy between public and private crimes. The analogy is useful but not to be pushed too far. A large number of acts directed against persons or inividuals may total up into a breach of public order. In Dr.Ram Manohar Lohia case 1 examples were given by Sarkar, and Hidayatullah, JJ. They show how similar acts in different contexts affect differently law and order on the one hand and public order on the other. It is always a question of degree of the harm and its effect upon the community. The question to ask is : Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely and individual leaving the tranquility of the society undisturbed ? This question has to be faced in every case on facts. There is no formula by which one case can be distinguished from another.” 17. The counsel then relies on the following observations in para.12 and 13 in Angoori Devi v. Union of India [(1989) 1 SCC 385] to highlight the distinction between threat to law and order from a threat to maintenance of public order. “Para.12: The impact on “public order” and “law and order” depends upon the nature of the act, the place where it is committed and motive force behind it. If the act is confined to an individual without directly or indirectly affecting the tempo of the life of the community, it may be a matter of law and order only. But where the gravity of the act is otherwise and likely to endanger the public tranquility, it may fall within the orbit of the public order. This is precisely the distinguishing feature between the two concepts. Sometimes, as observed by W.P(Crl.) No.323 of 2009 15 Venkatachaliah, J. in Ayya alias Ayub v. State of U.P: “What might be an otherwise simple `law and order' situation might assume the gravity and mischief of a `public order' problem by reason alone of the manner or circumstances in which or the place at which it is carried out.”. Necessarily, much depends upon the nature of the act, the place where it is committed and the sinister significance attached to it. Para.13: As for example dare-devil repeated criminal acts, open shoot out, throwing bomb at public places, committing serious offences in public transport, armed persons going on plundering public properties or terrorising people may create a sense of insecurity in the public mind and may have an impact on “public order”. Even certain murder committed by persons in lonely places with the definite object of promoting the cause of the party to which they belong may also affect the maintenance of `public order'.” 18. It is now trite that before a valid order of detention is passed under Section 3 of the KAAPA, the detaining authority must first entertain the requisite twin satisfactions. Firstly the initial objective satisfaction must be entertained that the detenu is a known goonda or known rowdy. Then the authority must entertain the latter subjective satisfaction that detention of the detenu is necessary to prevent such detenu from indulging in antisocial activity. Only when both satisfactions are validly entertained on the basis of the W.P(Crl.) No.323 of 2009 16 materials available before him, can the detaining authority pass a valid order of detention under Section 3 of the KAAPA. 19. We are certainly of the opinion that while considering the entertainment of the latter subjective satisfaction, every detaining authority is bound to consider whether the acts complained of against the detenu do really pose a threat to maintenance of public order. When the acts alleged are such that they threaten only the law and order and not public order, they cannot be reckoned as sufficient to justify an order of preventive detention. 20. But we are unable to agree with the learned counsel for the petitioner in the challenge raised by him on ground No.II that even while considering whether a person is a rowdy under section 2(t) or whether he is consequently a goonda under section 2(j) and known goonda or known rowdy under sections 2(o) and 2(p) , the acts alleged must reveal organised criminal activity and must threaten public order and not merely law and order. 21. The scheme of the Act must be borne in mind. Undoubtedly to constitute antisocial activity under section 2(a) and to come within the purview of the descriptive former part W.P(Crl.) No.323 of 2009 17 of the definition of goonda in Section 2(j), the acts alleged must threaten maintenance of public order. But the language of Section 2(t) which we have extracted above does not at all import the requirement that the offences specified therein must also threaten maintenance of public order and not merely law and order. The language does not at all insist that the offences under Section 2(t) must be offences committed by a person as part of organised criminal activity. The plain language of Section 2(t) does not permit us to insist on such a requirement. Consequently a `rowdy' who gets include in the definition of `goonda' in 2(j) by operation of the latter inclusive (deeming) part of the definition cannot insist that he is not a `rowdy' or `goonda' for the reason that any or all the offences alleged against him referred to in Section 2(t) do not refer to organised criminal activity or do not threaten maintenance of public order. A detenu - either a known goonda or known rowdy cannot validly urge that he is not a known goonda or known rowdy for the reason that the cases relied on against him under Section 2(t), 2(p) or 2(o) are cases which do not reveal commission of organised crime and they do not pose any threat to public order. That does not appear to be the scheme W.P(Crl.) No.323 of 2009 18