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 20TH AUGUST 2010 / 29TH SRAVANA 1932 WP(Crl.).No. 121 of 2010(S) --------------------------- PETITIONER(S): --------------- UMA K., W/O.RAMESH, NO.3, FLAT-C1, CHARTERED APARTMENT, BULL TEMPLE ROAD, CHAMARAJPET, BANGALORE-6=560018. BY ADV. SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.ANIL K.MOHAMMED SRI.SUJESH MENON V.B. SRI.JOSEPH P.ALEX SRI.SHYAM ARAVIND SRI.T.ANIL KUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE ADDITIONAL, CHIEF SECRETARY TO GOVERNMENT, THIRUVANANTHAPURAM. 2. THE DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, PALAKKAD. 3. THE SUPERINTENDENT OF POLICE, PALAKKAD. 4. THE SUPERINTENDENT, CENTRAL PRISON, VIYOOR, THRISSUR. BY D.G.P. SRI. K.K. RAVINDRANATH G.P. SRI. P. RAVINDRA BABU FOR R3 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 20/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- W.P.(Cri) No. 121 of 2010-S ------------------------------------------------- Dated this the 20th day of August, 2010 JUDGMENT Basant,J. This petition is filed by the petitioner for a writ of habeas corpus to direct release of her husband, Ramesh(hereinafter referred to as the detenu) who is detained as per an order dated 20/2/2010 passed by the second respondent under Section 3 of the Kerala Anti Social Activities (Prevention) Act (hereinafter referred to as the KAAPA). 2. The impugned order of detention(Ext.P1) was passed by the second respondent on the basis of a report (Ext.P4) submitted by the third respondent to the second respondent under Section 3(1) of the KAAPA. The second respondent in turn had received Ext.P5 report from his subordinate requesting him to initiate action under the KAAPA against the detenu. In W.P.(Cri) No. 121 of 2010 -: 2 :- execution of Ext.P1 order, the detenu was arrested on 22/2/2010. Order of approval (Ext.P6) under Section 3(3) of the KAPPA and the order of confirmation (Ext.P9) under Section 10(4) of the KAAPA have already been passed. The detenu thus continues in custody from 22/2/2010 and the period of detention authorised under Ext.P9 obliges him to continue in custody till 22/8/2010. 3. The detenu is proceeded against on the allegation that he is a known goonda. He is allegedly an abkari offender – a boot-legger. Reliance is placed, inter alia, on six crimes by the sponsoring and detaining authority. Tabular column given below gives the details of all the six cases which, inter alia, have been registered against the detenu. Sl.No. Police station and crime no. Date of Regn. seizure Date of final report 1 Cr.No.382/2009 – Town south Police Station, Palakkad u/s.55(a) of the Abkari Act, Ramesh included in the array of accused on 10.12.099 and report submitted to JFMC, Palakkad. 30/07/2009 14 cans of spirit 35 litres each (about 490 litres worth Rs.98,000/-- concealed in the vehicle. Case charge sheeted on 18.01.10 before JFMC III, Palakkad (Ramesh arrested on 05/01/2010) 2 Cr.No.491/09 – Town North P.S.Palakkad u/s.55 (a) of Abkari Act. 20/10/2009 25 cans of illicit spirit containing 32 litres each concealed in vehicle. Ramesh arrested on 31/1/2010 3 Cr.No.181/06 – Walayar P.S.Palakkad - Abkari Act during the course of investigation Sections 61, 63 of Abkari Act and Section 120B of I.P.C. added) 30/7/2006 350 cans of spirit 35 litres each (total 12250 litres) Charge sheeted on 8/1/2010 (Ramesh formally arrested on 6/8/2008) 4 Cr..No.263/06 – u/s. 55(a) of Abkari Act 01/10/06 340 cans of spirit, 35 litres each (total 11900 ) Charge sheeted on 28/10/2008. Formally arrested on 31/7/2008. W.P.(Cri) No. 121 of 2010 -: 3 :- Sl.No. Police station and crime no. Date of Regn. seizure Date of final report 5 i) Cr.No.3/08 of Excise Dept.u/s. 55(a) of abkari Act in connection with the same incident. (ii) Cr.No.26/08 u/s. 407, 420, 120-B r.w. 34 IPC on the complaint of Assist. Sales Manager, Malabar Cements. (during the course of investigation S.55 (a) of the Abkari Act added) (Both investigated by C.I.of police under supervision of S.P.Palakkad- members of Special Investigating Unit under direct control of Illicit Spirit Movement Investigation Team (ISISMIT) (Ramesh included in the array of accused on 25/4/2008 24/1/2008 8540 litres of spirit Charge sheeted on 18/2/2010 Ramesh arrested on 16/7/2010 6 Cr.No.663/07 u/s.8(1)(2) r/w. S.55(a) of Abkari Act (Ramesh included in the array of accused on 5/6/2008. 19/9/2007 8925 litres of spirit kept in 255 cans each containing 35 litres concealed under cement bags in lorry. Charge sheeted on 18/2/2010 Formally arrested on 30/7/2008 4. It will be appropriate and apposite straight away to refer to the prior history of the proceedings against the detenu. Earlier, an order of detention dated 31/10/2008 was passed by the second respondent directing the preventive detention of the detenu under Section 3 of the KAAPA. It is submitted that in execution of the said order of detention dated 31/10/2008, the detenu was actually taken into custody on the same day, i.e. 31/10/2008. The detenu continued in custody and the petitioner came before this Court with W.P.(Crl)No.449/2008 to challenge the order of detention and the continued detention of the detenu. W.P.(Cri) No. 121 of 2010 -: 4 :- By Ext.P8 judgment dated 19/2/2009 (a copy is produced as Ext.P8) another Division Bench of this Court had set aside the continued detention of the detenu on the ground that there was failure/omission to give an opportunity to the detenu to be represented by a lawyer before the Advisory Board. We may straight away refer to paragraph 33 of the said judgment which reads as follows: “33. However, we make it clear that it will be open to the Government or the competent authority to issue fresh orders of detention if so warranted, in accordance with law. We also hasten to add that we have not considered any of the other contentions raised by the petitioners as regards the validity and legality of the two orders of detention in these two cases.” (emphasis supplied) It was a common judgment under which 2 petitions relating to preventive detention of 2 detenus were disposed of. 5. On the strength of Ext.P8 judgment, the detenu was released on 19/2/2009, it is submitted and accepted. 6. Thereafter, the detenu was allegedly involved in two more crimes which are referred to as Sl.Nos.1 and 2 in the W.P.(Cri) No. 121 of 2010 -: 5 :- tabular column given above. In Crime No.382/2009 of Town South Police Station, Palakkad, the alleged incident – of illegal transportation of 490 litres of spirit worth Rs.98,000/- concealed in a vehicle, took place on 30/7/2009. In the F.I.R. registered, complicity of the detenu was not revealed. He was brought on the array of accused on 10/12/2009. He was arrested on 5/1/2010. The final report in that case was filed on 18/1/2010. The detenu was ordered to be released on bail on 29/1/2010. 7. The next crime No.491/2009 was registered at the Town North Police Station, Palakkad. The allegation in the said F.I.R. registered on 20/10/2009 is that 25 cans of illicit spirit each containing 32 litres were transported illegally in a vehicle. In that crime also, in the F.I.R. registered, the detenu is not shown to have any complicity. He was brought on the array of accused in the course of investigation on 5/1/2010. He was arrested on 31/1/2010. The final report in that case had not been submitted on the date of the impugned order of detention, Ext.P1. By order dated 23/2/2010, the detenu was ordered to be released on bail in that crime. Before that, the impugned order of detention dated 20/2/2010 was passed and the detenu was arrested and detained on 22/2/2010. While the detenu was in custody as an accused, Ext.P5 report was submitted to the third respondent by W.P.(Cri) No. 121 of 2010 -: 6 :- his subordinate and Ext.P4 report dated 18/2/2010 under Section 3(1) was submitted to the second respondent by the third respondent. 8. Detailed arguments have been advanced before us by the learned counsel for the petitioner and the learned Director General of Prosecutions. The learned counsel for the petitioner contends that the impugned order of detention and the continued detention of the detenu is legally not justified and is liable to be set aside. Various grounds are urged. Grounds of challenge can be summarised as follows: 1) The sponsoring and detaining authorities erred grossly in placing reliance on events prior to the earlier order of detention dated 31/10/2008 which was set aside by Ext.P8 judgment of this Court. 2) The former objective satisfaction as well as the latter subjective satisfaction could not have been validly entertained by the detaining authority in the facts and circumstances of this case. 9. Ground No.1. The learned counsel for the petitioner Sri.R.Anil strenuously contends that the sponsoring and W.P.(Cri) No. 121 of 2010 -: 7 :- detaining authorities erred grossly and misdirected themselves in law in choosing to place reliance on the events and incidents which took place prior to the earlier order of detention dated 31/10/2008. Counsel argues that in the light of the well settled principles of law, the detaining authority did not have the legal competence to take cognisance of events prior to 31/10/2008 on the basis of which the earlier order of detention was passed. The learned counsel for the petitioner in this context places reliance on the decision of the three Judge Bench of the Supreme Court in Ibrahim Bachu Bafan v. State of Gujarat, (A.I.R.1985 S.C.697). The counsel also relies on the decision in C.B. Kahar v. N.L. Kalna (A.I.R. 1989 S.C.1234) in which Ibrahim (supra) has been followed. The counsel further relies on the decision in Praseetha v. State of Kerala (2009(4)K.H.C. 382 (DB)) in which both earlier precedents of the Supreme Court have been referred to and followed. 10. The counsel places particular reliance on paragraph-12 of the decision in C.B. Kahar v. N.L. Kalna (AIR 1989 SC 1234) which we extract below: “It emerges from the above authoritative judicial pronouncements that even if the order of detention comes to an end either by revocation or by expiry of the W.P.(Cri) No. 121 of 2010 -: 8 :- period of detention there must be fresh facts for passing a subsequent order. A fortiori when a detention order is quashed by the Court issuing a high prerogative writ like habeas corpus or certiorari the grounds of the said order should not be taken into consideration either as a whole or in part even along with the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the Court strikes down an earlier order by issuing rule it nullifies the entire order.” (emphasis supplied) The learned counsel for the petitioner submits that in view of the binding dictum in the said decisions, it is impermissible for the detaining authority to place reliance on pre 31/10/08 incidents on the basis of which the earlier order of detention was passed which order of detention was set aside in Ext.P8 judgment. 11. The learned counsel for the petitioner in order to further support this contention points out that even if all the allegations raised in the earlier order of detention dated 31/10/08 were held to be correct, the obligation of the detenu W.P.(Cri) No. 121 of 2010 -: 9 :- would have been to undergo preventive detention only for a period of six months from 31/10/08. That period could not have, at any rate, exceeded six months. He had actually undergone detention from 31/10/08 to 19/2/09. If because of Ext.P8 judgment, the earlier order of detention and all the reasons which were pressed into service to support such order of detention were to be ignored, the detenu will now have to suffer a fresh period of preventive detention for a further period of six months notwithstanding the fact that he has already undergone detention for a period of about 4 months from 31/10/08 to 19/2/09. This would work out injustice unintended by the statute and the constitutional provisions. This circumstance is additionally relied on by the learned counsel for the petitioner to request this Court to take the view which has already been taken in Ibrahim Bachu Bafan v. State of Gujarat (AIR 1985 SC 697), C.B Kahar v. N.L. Kalna (AIR 1989 SC 1234) and Praseetha v. State of Kerala (2009 (4) KHC 382 [DB]). 12. These submissions of the learned counsel for the petitioner do appear to us to be impressive. The learned Director General of Prosecutions does not dispute the propositions of law; but contends that in the light of paragraph- 33 of Ext.P8 judgment which we have already extracted above, W.P.(Cri) No. 121 of 2010 -: 10 :- the option of the authorities to pass a fresh order of detention on the earlier grounds is not in any way fettered. The learned D.G.P. points out that the sole rationale of Ext.P8 judgment was the omission/failure/refusal to make the services of a lawyer available to the detenu when his case came up for consideration before the Advisory Board. On merits, the matter was not considered at all by this Court in Ext.P8. The observations in paragraph-33 of Ext.P8 must make the crucial distinction in this case and even if the detaining authority had relied on pre 31/10/08 incidents/circumstances, they cannot be held to vitiate the present order of detention, contends the learned counsel. 13. We are bound by the dictum in Ibrahim Bachu Bafan, C.B Kahar and Praseetha (supra). When once a constitutional court in exercise of its powers to issue high prerogative writs sets aside an order of detention it is indisputable that the events/incidents which instilled the subjective satisfaction cannot be relied upon afresh to pass a fresh order of detention. We find absolutely no doubt on that proposition of law. We take note of the supplementary argument advanced by the learned counsel for the petitioner to support the very same conclusion. If this Court were to choose to accept the arguments of the learned D.G.P., it would lead to the ridiculous consequence that for W.P.(Cri) No. 121 of 2010 -: 11 :- having succeeded in Ext.P8 proceedings the detenu will have to undergo detention for a further period of six months in addition to the detention for a period of about 4 months already undergone earlier. If he had not chosen to challenge the order, his woes would have ended with detention for a period of 6 months. For having succeeded in the challenge he will be exposed to the further misfortune of detention afresh for a further period of 6 months afresh. That obviously cannot be the law. We are persuaded to accept that contention. 14. The only questions then is whether the observations in paragraph-33 would lift the fetter placed on the detaining authority by the three decisions referred above. It is for this purpose that we have extracted the entire paragraph-33 earlier. We have carefully gone through the said paragraph-33. We are unable to agree that the learned Judges of the Division Bench intended or anticipated that fresh orders of detention not justified by Ibrahim Bachu Bafan, C.B Kahar and Praseetha referred above, can be passed on the strength of the said observations in paragraph-33. Having found that such a fresh order on the same grounds is not justifiable on the strength of the precedential authority referred above, we are unable to agree that the observations in paragraph-33 can come to the W.P.(Cri) No. 121 of 2010 -: 12 :- rescue of the respondents. Paragraph-33 clearly saves such action only if the same is in accordance with law. The challenge on the first ground therefore succeeds. 15. Ground No.2: The learned D.G.P. contends that even if all the grounds relied on in the order of detention dated 31/10/08 were ignored and eschewed, still the order of detention can be amply supported. The learned D.G.P. submits that to decide the question whether the detenu is a known-rowdy or known goonda on the date of the fresh order of detention, the earlier incidents can also be relied on. According to the learned D.G.P., only the grounds for entertaining the subjective satisfaction relied on in the previous order of detention cannot be relied on in the subsequent order of detention. Paragraph-12 of C.B Kahar (supra) makes the position crystal clear. In clear distinction from other pieces of legislation regarding preventive detention, the KAAPA contemplates two satisfactions, commonly referred to as the initial/threshold/objective satisfaction and the latter subjective satisfaction. In order to pass a valid order of preventive detention under Sec.3 of the KAAPA both satisfactions must be entertained by the detaining authority. The former objective satisfaction is whether the proposed detenu is a known goonda or a known rowdy. To decide whether a W.P.(Cri) No. 121 of 2010 -: 13 :- detenu is a known goonda or a known rowdy - that is to entertain the requisite former objective satisfaction, the antecedents of a detenu can be considered and while considering that, all the cases which may bring him within the sweep of the expression 'known goonda/known rowdy' can also be considered. The fetters placed by the precedents above can apply only to the latter subjective satisfaction and not the initial/threshold/objective satisfaction, contends the learned D.G.P. 16. We find merit in this contention. The precedents referred above refer to the subjective satisfaction to be entertained by the detaining authority. The detention on the basis of such subjective satisfaction entertained already having been set aside by a constitutional court by issuing a high prerogative writ those grounds which earlier instilled the subjective satisfaction in the mind of the detaining authority cannot be relied on afresh. But that is not to say that those cases cannot be considered for entertaining the former objective satisfaction - as to whether the detenu is a known goonda or a known rowdy. The learned D.G.P. submits, even if the earlier grounds cannot be relied on, that to entertain the subjective satisfaction, there can be no fetter on ascertaining the factual W.P.(Cri) No. 121 of 2010 -: 14 :- position as to whether the proposed detenu is a known goonda or a known rowdy. Even Ibrahim Bachu Bafan and C.B Kahar (supra) are no authority for the proposition that the earlier events cannot be taken into consideration to entertain the former objective satisfaction, contends the learned D.G.P. 17. The learned D.G.P. in this context draws our attention to the analogy available in Sec.13 of the KAAPA which makes it clear that even when an order of detention is revoked by the Government under Sec.13 of the KAAPA or lapses by expiry of the period of detention, a further order of detention under Sec.3 of the KAAPA can be passed if the detenu continues to be a known rowdy or known goonda and a fresh incident has taken place subsequent to release by such revocation or expiry of the period of detention. We feel that the said rationale can safely be imported while considering the consequences of setting aside of an earlier order of detention by issue of high prerogative writ by a constitutional court. 18. The learned D.G.P. hence argues that, at any rate, the previous crimes can be taken into consideration by the detaining authority to decide whether the detenu is a known goonda or a known rowdy. The subsequent events after the previous order of detention can certainly be taken into consideration to decide W.P.(Cri) No. 121 of 2010 -: 15 :- whether the latter subjective satisfaction can be entertained. The learned D.G.P. submits that in this case on the basis of the events that had taken place subsequent to the earlier order of detention dated 31/10/08, the impugned order of detention can be attempted to be justified. We agree. 19. The learned D.G.P. points out that Crime Nos.382/09 and 491/09 (Sl.Nos.1 and 2 above) do themselves bring the detenu within the sweep of the expression 'known goonda' under Sec. 2(o) of the KAAPA. In the first case, final report has been filed. The nature of the offence is such that in both cases the offender/ detenu would fall within the sweep of the expression 'goonda' in Sec.2(j) of the KAAPA. In the case Sl.No.2 final report has not been filed; but relying on the decision in Elizebath George v. State of Kerala (2008 (4) KLT 425) which still remains in force and is binding on this Court, the said case Sl.No.2 can also be taken into account notwithstanding the fact that the final report has not been filed. The learned D.G.P. hence argues that whether Sl.Nos.3 to 6 are taken into account or not, Sl.Nos.1 and 2 crimes shown above in the tabular column would themselves bring the detenu within the sweep of the expression 'known goonda' under Sec.2(o) of the KAAPA. 20. We find the said contention to be acceptable. In W.P.(Cri) No. 121 of 2010 -: 16 :- Elizebath George (supra) the expression 'found on investigation' in Sec.2(o)(ii) was considered by a Division Bench and it was held that the fact that the final report had not been filed is no reason to eschew such a case under Sec. 2(o)(ii) of the KAAPA. It is true that this Bench has expressed reservations about the acceptability of the dictum in Elizebath George (supra) in two cases i.e, Sathi v. State of Kerala (2009 (2) KLD 377 [DB]) and Ranjini v. State of Kerala (2009 (3) KLT 500) and has made a reference to the Full Bench of that question in a later decision. But the fact remains that we are at the moment bound by the dictum in Elizebath George (supra). 21. In the light of the dictum in Elizebath George (supra), Crime No.491/09 can also be taken into reckoning to decide whether the detenu is a 'known goonda' under Sec.2(o)(ii) of the KAAPA. Crime No.382/09 in which final report has already been filed which is subsequent to the earlier order of detention on 31/10/08 can certainly be taken into account without any dispute. Taking Sl.Nos.1 and 2 into consideration, the detenu falls within the sweep of the expression 'known goonda' in Sec.2 (o) of the KAAPA. The view which we have taken earlier also leads us to the conclusion that even cases Nos.3 to 6 which relate to incidents that had taken place prior to 31/10/08 can W.P.(Cri) No. 121 of 2010 -: 17 :- also be taken into account to decide whether the detenu is a known goonda. 22. Lest there be any confusion, we may mention that in Crime No.491/09 (Sl.No.2) a report to array the detenu as an accused had already been submitted on 5/1/10 and after the Investigating Officer satisfied himself that the detenu has committed the offence, the detenu was arrested on 31/1/10. Thus, it is evident that the Investigating Officer had found the detenu to be guilty of the offence alleged in Crime No.491/09 bringing the case squarely within Sec.2(o)(ii) of the KAAPA. 23. The contention that the final report has not been filed in Sl.No.2 cannot, in these circumstances, be of any help to the detenu in the light of the dictum in Elizebath George (supra). 24. The above discussions lead us to the conclusion that whether Sl.Nos.3 to 6 crimes are taken into account or not the detenu was a known goonda on 20/2/10 - the date of the impugned order of detention, on the strength of cases Sl.Nos. 1 and 2. We further hold that cases 3 to 6 can also be taken into account and hence cases 1 to 6 together undoubtedly and certainly brings the detenu within the sweep of the expression 'known goonda' under Sec.2(o) of the KAAPA. We do not, in W.P.(Cri) No. 121 of 2010 -: 18 :- these circumstances, find any merit in the first contention raised under Ground No.2 that the former objective satisfaction was not validly entertained by the detaining authority before passing the impugned order of detention. 25. We now come to the latter subjective satisfaction. The learned Director General of Prosecutions had initially attempted to justify the latter subjective satisfaction on the basis of