IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 4TH JANUARY 2010 / 14TH POUSHA 1931 WP(Crl.).No. 429 of 2009(S) --------------------------- PETITIONER: --------------- SAILAJA,W/O.BHASKARAN,AGED 54 YEARS, VILAYIL VEEDU,CHIRAYINKEEZHU,ATTINGAL, THIRUVANANTHAPURAM. BY ADV. SRI.M.RAJAGOPALAN NAIR SRI.G.BIJU SRI.S.JAYAPRAKASH (MADAVOOR) RESPONDENTS: --------------- 1. STATE OF KERALA,REP.BY ADDL.CHIEF SECRETARY TO GOVERNMENT,HOME DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE,COLLECTORATE,THIRUVANANTHAPURAM. 3. DEPUTY COMMISSIONER OF POLICE(L&O), THIRUVANANTHAPURAM CITY,OFFICE OF THE COMMISSIONER OF POLICE,THIRUVANANTHAPURAM. ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.K.K.RAVINDRANATH GOVERNMENT PLEADER SRI.P.RAVINDRA BABU FOR R1-3 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 04/01/2010 ALONG WITH WP(Crl) Nos.456 AND 462 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. -------------------------------------------------------- W.P.(Cri) Nos.429, 456 & 462 of 2009 -------------------------------------------------------- Dated this the 4th day of January, 2010 JUDGMENT Basant,J. We commence by making reference to the celebrated observations of Justice Frankfurter in the dissenting judgment in U.S. v. Rabinowitz (339 U.S. 56 [1950]) that: “it is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people”. We also draw inspiration from the observations of the U.S. Court of Appeals in Kopf v. Skyrm (993 F2d 374) that the defender of constitutional liberty “must share his foxhole with scoundrels of every sort, but to abandon the post W.P(Crl.) Nos.429, 456 & 462 of 2009 2 because of the poor company is to sell freedom cheaply”. We remind ourselves of the words of Justice Chandrachud in Rattan Singh v. State of Punjab and others ([1981] 4 SCC 481) also that the tribe of the detenu may deserve “no sympathy since its activities have paralysed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set- up, it is essential that at least those safeguards are not denied to the detenu.” 2. These observations of the illustrious Judges have been of great help and assistance to us to assuage our feelings of discomfort and uneasiness while discharging our duties in this sensitive jurisdiction of preventive detention. We have tried to console ourselves that though we are concerned mostly with known criminals, goondas, rowdies and anti-social elements, we must deal with their cases in the context of what are great themes of freedom, personal liberty and right to live. 3. Has mind been applied properly before passing the impugned orders of preventive detention under Sec.3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (for short W.P(Crl.) Nos.429, 456 & 462 of 2009 3 `the KAAPA')? Do Sec.2(t) offences (alone) justify the classification of a `rowdy' as a `known goonda' under Sec.2(o) of the KAAPA? Is it essential that there must at least be one `non 2(t) offence' also, alleged or proved before a `rowdy' is reckoned as a `known goonda' and his preventive detention ordered under Sec.3 of the KAAPA? How are the words “can also be taken into consideration as an instance along with the other cases” in the Explanation to Sec.2(o) of the KAAPA to be understood and interpreted? 4. These interesting questions arise for determination in these three writ petitions which are taken up for consideration together. We have heard the learned counsel Sri. Rajagopalan Nair and Sri. Dileep P. Pillai appearing for the petitioners in these cases as also Sri. K.K. Ravindranath, the learned Additional Director General of Prosecutions. We are proceeding to dispose of these cases by this common judgment. 5. The identical crucial fact vitally relevant in all these three cases is that the detenus on whose behalf these petitions have been filed by the petitioners - their close relatives, to quash the orders of preventive detention passed under Sec.3 of the KAAPA, face allegations in more than two cases in pending prosecutions before courts - of having committed offences falling W.P(Crl.) Nos.429, 456 & 462 of 2009 4 within the sweep of Sec.2(t) of the KAAPA. They are reckoned as `known goondas' by the detaining authority. Significantly, there is no allegation whatsoever against them of their having committed any offence other than the offences falling within the sweep of Sec.2(t) of the KAAPA. The tabular column given below carries the vital details: Sl. No. WP (Cri) No. Total No. of cases No. of cases charge sheeted No. of cases pending investiga tion No. of cases involving 2(t) offences only No. of cases involving non 2(t) offences Classifi- cation by the sponsori ng authority lassifica- tion by the detaining authority 1 429/09 6 5 1 6 Nil Known goonda Known goonda 2 456/09 11 8 3 11 Nil Known goonda Known goonda 3 462/09 5 4 1 5 Nil Known rowdy Known goonda 6. The learned counsel for the petitioners contend that inasmuch as the detenus are not alleged to have committed any non 2(t) offence, they cannot be classified as `known goondas' under Sec.2(o) of the KAAPA and consequently their detention under Sec.3 of the KAAPA classifying them as `known goondas' is legally unsustainable. Non-application of the mind to the question whether the detenus can validly be classified as `known W.P(Crl.) Nos.429, 456 & 462 of 2009 5 goondas' vitiates the impugned orders, contend the learned counsel. Inasmuch as they have been wrongly and unjustifiably classified as `known goondas', their right to make an effective representation under Art.22(5) of the Constitution and Sec.7(2) of the KAAPA are affected to their prejudice. They are hence entitled to be released, contend the learned counsel. 7. The learned Additional Director General of Prosecutions, on the contrary, contends that a `rowdy' under Sec.2(t) is by definition a goonda under Sec.2(j). A `goonda' under Sec.2(j) can be classified as a `known goonda' under Sec.2(o)(ii) if on investigation by a competent police officer he has been found guilty of “any act within the meaning of the term `goonda' as defined in clause (j) of Sec.2”. An act of rowdyism - commission of an offence under Sec.2(t), can hence be taken into consideration to classify a person as a `known goonda' under Sec.2(o)(ii) of the KAAPA, contends the learned ADGP. The learned ADGP further contends that even assuming that the classification ought to have been as a `known rowdy' and not a `known goonda', that deficit or inadequacy does not in any way affect the validity of the impugned orders of detention. 8. To resolve the controversy, we are of the opinion that the tools of the statute - the definitions, the legislative scheme W.P(Crl.) Nos.429, 456 & 462 of 2009 6 and the statutory methodology have to be carefully analysed and understood. We shall undertake that exercise initially. When it comes to a question of preventive detention under the KAAPA, it is Sec.3 that is of crucial significance. We extract Sec.3(1) of the KAAPA which confers powers of preventive detention on the Government and its delegates: 3. Power to make orders detaining Known Goondas and Known Rowdies.-- The Government or an officer authorised under sub-section (2) may, if satisfied on information received from a police officer not below the rank of a Superintendent of Police with regard to the activities of any Known Goonda or Known Rowdy, that with a view to preventing such person from committing any anti-social activity within the State of Kerala in any manner, it is necessary so to do, make an order directing that such person or detained.” (rest of the Section omitted as not vitally relevant in this context) 9. First of all, it has to be ascertained whether the detenu is a known goonda or known rowdy. Only if that satisfaction - W.P(Crl.) Nos.429, 456 & 462 of 2009 7 referred to usually by us as the initial, threshold and objective satisfaction, is entertained by the detaining authority, can a valid order of detention be passed. An order of detention can be passed only against a known goonda or a known rowdy. After entertaining the initial threshold satisfaction that the detenu is a known goonda or a known rowdy, the detaining authority will have to further consider the materials and entertain the latter subjective satisfaction that the detention of such detenu is necessary with a view to prevent such detenu from committing any anti-social activity. We repeat that after entertaining the initial objective satisfaction that the detenu is either a known goonda or a known rowdy, it will further have to be considered whether the detention of such known goonda or known rowdy is necessary to prevent him from committing any anti-social activity. 10. The expressions `known rowdy' and `known goonda' in this context become very significant. The KAAPA defines a `goonda' and a `rowdy' in Sec.2(j) and Sec.2(t) respectively. A goonda or a rowdy will have to satisfy the definition of `known goonda' or `known rowdy' later. We will first examine the definition of `goonda' under Sec.2(j). We extract Sec.2(j) below: W.P(Crl.) Nos.429, 456 & 462 of 2009 8 “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 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.” (emphasis supplied) 11. The definition of `goonda' has two parts. A person who indulges in any anti-social activity or promotes or abets illegal activities which are harmful to the maintenance of the public order directly or indirectly is a goonda. This is the former part of Sec.2(j). The latter part of Sec.2(j) includes the following within the sweep of the expression `goonda'. They are: (1) a `bootlegger' as defined under Sec.2(c). (2) a `counterfeiter' as defined under Sec.2(e). (3) a `depredator of environment' as defined under Sec.2 (g). W.P(Crl.) Nos.429, 456 & 462 of 2009 9 (4) a `digital data & copyright pirate' as defined under Sec.2(h). (5) a `drug-offender' as defined under Sec.2(i). (6) a `hawala racketeer' as defined under Sec.2(l). (7) a `hired ruffian' as defined under Sec.2(m). (8) a `rowdy' as defined under Sec.2(t). (9) an `immoral traffic offender' as defined under Sec.2(n). (10) a `loan shark' as defined under Sec.2(q) and (11) a `property grabber' as defined under Sec.2(s) of the KAAPA. 12. A person can be classified as a goonda if he satisfactorily answers the former half of Sec.2(j) or if he falls within any of the categories referred to in the latter half of the inclusive definition of `goonda' in Sec.2(j). 13. We now come to the definition of `rowdy' in Sec.2(t). It reads thus: `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 W.P(Crl.) Nos.429, 456 & 462 of 2009 10 the Indian Penal Code, 1860 (Central Act 45 of 1860), or any offences under the provisions 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, excluding those punishable with less than one year of imprisonment; or 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.” A person who either by himself or as a member of the gang commits, attempts to commits or abets the commission of any offences specified under Sec.2(t) (hereinafter referred to as `2(t) offences') falls within the definition of `rowdy' under Sec.2(t). 14. It is relevant to note that a rowdy under Sec.2(t) will, by the operation of the inclusive latter half of the definition of `goonda' in Sec.2(j), be a goonda ipso facto. Though different W.P(Crl.) Nos.429, 456 & 462 of 2009 11 definitions are given for the expression `goonda' in Sec.2(j) and `rowdy' in Sec.2(t), it is interesting to note that a rowdy ipso facto becomes a goonda under Sec.2(j). Why this inclusion of rowdy is made in the definition of `goonda' in Sec.2(j) passes our comprehension. We must say that satisfactory explanation thereof has not been offered to us by the learned ADGP on behalf of the State. Be that as it may, we need now take note only of the fact that a rowdy under Sec.2(t) will ipso facto be a goonda under Sec.2(j) whatever may be the purpose of such inclusion of the rowdy within the sweep of the expression `goonda' in Sec.2 (j). 15. To justify an order of detention under Sec.3 of the KAAPA it is not enough if a person is a goonda or a rowdy. He must be a known goonnda as defined under Sdec.2(o) or a known rowdy as defined under Sec.2(p). Only a goonda or a rowdy who answers the definition of `known goonda' or `known rowdy' can be visited with a valid order of detention under Sec.3. It therefore assumes significance that a person who falls within the sweep of the expression `goonda' or `rowdy' alone can be classified as a `known goonda' or a `known rowdy' under Sec.2 (o) and Sec.2(p) of the KAAPA. Only if they fall within the sweep of Secs.2(o) and 2(p) can they be ordered to be preventively W.P(Crl.) Nos.429, 456 & 462 of 2009 12 detained under Sec.3. 16. We extract the definition of `known goonda' and `known rowdy' below: 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 person 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 W.P(Crl.) Nos.429, 456 & 462 of 2009 13 alcohol, spirit, counterfeit notes, sand, forest produce, articles violating copyright, narcotic drugs, psychotropic substances, or currency involved in hawala racketeering may be included for consideration through the report had resulted from an action initiated by a police officer. Explanation.- An instance of an offence involving a person, which satisfies the conditions specified in the definition of known rowdy referred to in clause (p) of Section 2 can also be taken into consideration as an instance, along with other cases, for deciding whether the person is a known goonda or not.” 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 under item (i) of clause (t) of Section 2 or any offence notified as such under the said clause; or W.P(Crl.) Nos.429, 456 & 462 of 2009 14 (ii) made guilty, by a competent Court at least twice for any of the nature 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 a reason of a family dispute 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 W.P(Crl.) Nos.429, 456 & 462 of 2009 15 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 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 W.P(Crl.) Nos.429, 456 & 462 of 2009 16 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 committee 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;” 17. The definition `known goonda' in Sec.2(o) suggests that only a goonda can be a `known goonda'. But such a strict insistence is not seen made in Sec.2(p) which defines the expression `known rowdy' to mean any person who satisfies the requirements of Sec.2(p) What we note is that there is no specific insistence in the definition of Sec.2(p) that a known rowdy must be a rowdy. But that is of no crucial significance as any person to satisfy the ingredients of (i), (ii) and (iii) of Sec. 2(p) must definitely be a rowdy under Sec.2(t). In these W.P(Crl.) Nos.429, 456 & 462 of 2009 17 circumstances, the fact that in the definition of a `known rowdy', there is no semantic insistence that he must be a rowdy is of no relevance as any person who answers the requirements of (i), (ii) and (iii) must definitely be a rowdy under Sec.2(t). 18. We must now note the distinctions between the definition of the expressions `known goonda' and `known rowdy' in Secs.2(o) and 2(p). Conviction at least in one case for an offence within the meaning of the term `goonda' as defined under Sec.2(j) would make a `goonda' a `known goonda' under Sec.2(o)(i). Similarly, conviction for one or two offences of the variety mentioned in Sec.2(p)(i) and Sec.2(p)(ii) respectively would bring a rowdy within the sweep of the expression `known rowdy' under Sec.2(p). In this context, we find that the expression `found guilty' has been used in Sec.2(o)(i); whereas the expression `made guilty' has been employed in Sec.2(p)(i) and Sec.2(p)(ii) of the KAAPA. The unidentical and different expressions used on this aspect in the two definitions, we note, is of no crucial significance. 19. We are here crucially concerned with the distinction between the definitions in Sec.2(o)(ii) and Sec.2(p)(iii). Finding by a competent police officer on investigation that the person has committed two offences/acts within the meaning of the term W.P(Crl.) Nos.429, 456 & 462 of 2009 18 `goonda' in Sec.2(j) would bring such person within the sweep of the expression `known goonda' under Sec.2(o)(ii); but to bring him within the sweep of the expression `known rowdy' under Sec.2(p)(iii), there must be not two but three instances of such commission of offences under Sec.2(t). The difference between the expressions “to have committed any act within the meaning of the term `goonda' in Sec.2(j)” in Sec.2(o)(ii) and “to have committed any offence mentioned in Sec.2(t)” in Sec.2(p)(iii) is also of no crucial importance in the given facts scenario. We intend only to observe that, whatever be the reasons, different expressions have been employed in the definition of `known goonda' and `known rowdy' in Sec.2(o) and Sec.2(p) of the KAAPA. For us, what is crucially relevant is that three 2(t) offences at least must have been committed to bring a person within the play of Sec.2(p)(iii); whereas commission of two offences would bring him within the sweep of `known goonda' under Sec.2(o)(ii). 20. It must also be noted alertly that a proviso similar to the proviso to Sec.2(o)(ii) is significantly absent when it comes to the definition of `known rowdy' in Sec.2(p). Initiation of proceedings consequent to seizure of arms and explosives under the Arms Act and the Explosive Substances Act made by police W.P(Crl.) Nos.429, 456 & 462 of 2009 19 officials cannot under any circumstances be counted to bring a rowdy within the sweep of the expression of `known rowdy' in Sec.2(p); whereas seizure of alcohol, spirit, counterfeit notes, sand etc., under certain circumstances can bring a person within the sweep of the expression `known goonda' under Sec.2(o)(ii). Provisos (i) to (vi) are there in the definition of `known rowdy' in Sec.2(p); but such provisos are significantly not available in the definition of `known goonda' under Sec.2(o) of the KAAPA. 21. What we are attempting to note is that the scheme of the Act is totally different when it comes to the definition of a `known goonda' under Sec.2(o) as distinguished from the definition of `known rowdy' in Sec.2(p) of the KAAPA. 22. Alert application of mind to all the relevant circumstances is necessary and essential before passing an order of detention under Section 3 of the KAAPA. If there be no alert application of mind to all the relevant circumstances, the impugned order of detention and the consequent detention are liable to be invalidated. The minimum that a detenu preventively detained can insist and demand is that no order of detention should be passed against him without and before alert application of mind by the detaining authority to all relevant aspects. W.P(Crl.) Nos.429, 456 & 462 of 2009 20 23. We have already noted that it is important whether a detenu is classified as a known goonda or a known rowdy before an order of detention is passed against him. To satisfy the Court that the mind of the detaining authority has been applied alertly, such consideration is necessary. There is another dimension to this requirement. The nature of representation which the detenu can make would be totally different depending on the question whether he is classified as a known rowdy or known goonda. The defences available to him would be significantly different. For him to make an effective representation, it is hence important that mind must have been applied alertly and a decision must have been taken on the question whether he is being ordered to be detained reckoning him as a known goonda or a known rowdy. The absence/failure to apply mind pointedly on this aspect would not only vitiate the order of detention on the ground of inadequate application of mind, it will also vitiate the order of detention and the consequent detention on the ground that it deprives the detenu of an effective opportunity to make a representation under Article 22(5) of the Constitution