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 15TH JUNE 2010 / 25TH JYAISTHA 1932 WP(Crl.).No. 182 of 2010(S) --------------------------- PETITIONER: --------------- BHASKARAN NAIR , AGED 65, S/O.RAMAKRISHNA PILLAI, SWAPNALAYAM, KEEZHAPILLA VEEDU, MELAMCODE, UBANNIYOOR DESOM, NEMOM, THIRUVANANTHAPURAM. BY ADV. SRI.R.NARENDRAN NAIR SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENTS: --------------- 1. STATE OF KERALA REPRESENTD BY CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT,THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, DISTRICT MAGISTRATEC OLLECTORATE,THIRUVANANTHAPURAM. 3. DEPUTY COMMISSIONER OF POLICE (LAW & ORDER) THIRUVANANTHAPURAM CITY. GOVERNMENT PLEADER SRI.K.J.MOHAMMED ANZAR FOR R1,2&3 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 15/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ********************** W.P(Crl.) No.182 of 2010 ********************* Dated this the 15th day of June, 2010 ORDER BASANT, J. Petitioner in this Writ Petition assails Ext.P2 order of detention and the consequent detention of his son Prasanth @ Kannan, aged 29 years, under Section 3 of the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred to as “the KAAPA”). 2. The order of detention Ext.P2 is passed by the 2nd respondent. That order of detention is passed by him under Section 3 of the KAAPA. It is on the basis of Ext.P1 report of the 3rd respondent/sponsoring authority that Ext.P2 order of detention was passed by the 2nd respondent. Ext.P1 is the report dated 30.11.2009 submitted under Section 3(1) of the KAAPA by the 3rd respondent, a Superintendent of Police to the 2nd respondent. The petitioner's son Prasanth @ Kannan (hereinafter referred to as `the detenu') is categorised as a `known rowdy' and it is accordingly that the 2nd respondent has proceeded to pass Ext.P2 order of detention. W.P(Crl.) No.182 of 2010 2 3. 5 cases are enumerated in the order of detention Ext.P2 as also Ext.P1 report submitted by the 3rd respondent to the 2nd respondent. `Known rowdy' is defined under Section 2(p) of the KAAPA and there is no contention before us that the 5 cases referred to in Exts.P1 and P2 will not bring the detenu within the sweep of the expression `known rowdy' in Sec.2(p) of the KAAPA. In these circumstances, we deem it unnecessary to refer in detail to the 5 cases referred to in Exts.P1 and P2. Suffice it to say that the detenu comes within the sweep of `known rowdy' under Section 2(p) of the KAAPA. 4. The order of detention Ext.P2 was passed on 09.02.2010. The same was executed and the detenu was arrested only on 01.03.2010. He continues in custody from that date. Order of approval under Section 3(3) of the KAAPA has already been passed. On the basis of the report of the Advisory Board, the order of detention has been confirmed under Section 10(4) of the KAAPA. 5. Before us the learned counsel for the petitioner and the learned Government Pleader have advanced their arguments. The learned counsel for the petitioner assails the impugned order on the following grounds: W.P(Crl.) No.182 of 2010 3 i) There has been infraction of the provisions of Section 7(2) of the KAAPA and Article 22(5) of the Constitution inasmuch as no documents other than Exts.P1 and P2 have been furnished to the detenu; ii) All the 5 cases referred to in Exts.P1 and P2 except one, had taken place during the years 2007 and 2008 and hence there is a snapping of nexus between the alleged overt acts and the order of detention; iii) There has been no proper application of mind by the detaining authority before passing Ext.P1 order of detention. 6. The first contention is about non furnishing of the relevant documents. A specific plea that any particular document which ought to have been furnished has not been furnished is not seen raised in the Writ Petition. What is the document which has not been furnished to the detenu to satisfy the requirements of Section 7(2) of the KAAPA and Article 22(5) of the Constitution? The learned counsel for the petitioner only submits that except Ext.P1 report of the 3rd respondent to the 2nd respondent and Ext.P2 order of detention, no other documents have been furnished. W.P(Crl.) No.182 of 2010 4 7. The learned Government Pleader reputes this contention. The learned G.P points out that as a matter of fact copies of all relevant documents have been furnished to the detenu. The learned G.P has placed the file before us to point out that at the bottom of Ext.P2 order of detention, grounds of detention which accompanied the order of detention, Ext.P1 report of the 3rd respondent as also at the bottom of the index enumerating the details of 21 documents relied upon by the detaining authority, the detenu has acknowledged receipt and has clearly stated that he has got readable copies of all those documents furnished to him. 8. We note that the contention of failure/omission to supply the documents has not been specifically raised. The learned G.P by reference to records has convinced us that the copies of all the documents referred above have been furnished to the detenu and receipt of the same has been acknowledged by the detenu. In these circumstances, we find absolutely no merit in the contention presently raised that copies of relevant documents have not been furnished to the detenu in accordance with the mandate of Section 7(2) of the KAAPA and Article 22 of W.P(Crl.) No.182 of 2010 5 the Constitution. The challenge on the first ground must, in these circumstances, fail. 9. The learned counsel for the petitioner next contends that all the 5 cases are cases in which the incident had taken place on 05.09.2006, 07.01.2007, 08.12.2007, 22.06.2008 and 30.10.2009. The counsel builds up an argument that all the 4 cases, except the fifth, had taken place during the years 2006 to 2008. The order of detention was passed only on 09.02.2010. The long gap of time between the alleged incidents in 5 cases and the order of detention is too wide and yawning that the latter subjective satisfaction entertained by the detaining authority must be held to be vitiated, contends the learned counsel for the petitioner. 10. It is trite that before passing an order of detention under Section 3 of the KAAPA, the detaining authority must entertain the twin satisfactions simultaneously. The authority must be satisfied that the detenu is a known rowdy/goonda. That threshold satisfaction must first of all be entertained. After entertaining the requisite initial threshold satisfaction, the detaining authority must proceed to consider whether the latter subjective satisfaction - that “with a view to preventing the W.P(Crl.) No.182 of 2010 6 detenu from committing any anti social activity within the State of Kerala in any manner, it is necessary to make an order directing the detention for such person”, can be entertained. 11. In the instant case, the former satisfaction is clearly entertained. All the 5 cases are cases which relate to incidents which fall within the expression `rowdy' under Section 2(t) and `known rowdy' under Section 2(p) of the KAAPA. It is pointed out that in one case, ie. case No.4 relating to the incident which took place on 22.06.2008, there is a judgment of acquittal dated 18.02.2010 subsequent to the passing of the order of detention on 09.02.2010. On the date of the detention order, all the 5 cases could have been taken into consideration to decide whether the detenu is a known rowdy or not. The subsequent acquittal does not, at any rate, vitiate the initial threshold objective satisfaction that the detenu is a known rowdy. Even eschewing the said case, the detenu clearly answers the definition of `known rowdy' under Section 2(p) of the KAAPA. 12. It is not the law that the incidents which are relied on to bring a detenu within the sweep of `known rowdy' under Section 2(p) of the KAAPA cannot be made use of by the detaining authority while considering the question whether the W.P(Crl.) No.182 of 2010 7 latter subjective satisfaction can be entertained or not. The latter subjective satisfaction, it is very well settled now, is not justiciable and this Court exercising the power of judicial review cannot go into the question of adequacy of materials to induce the requisite latter subjective satisfaction. If there are no relevant materials whatsoever, interference in judicial review is permissible, but where there are materials, the sufficiency of the same is certainly not justiciable in judicial review. This Court in judicial review does not sit in appeal over the subjective satisfaction entertained by the detaining authority. 13. In this background, we have attempted to consider the 5 cases on which reliance is placed. We are excluding the case which ended in acquittal, ie. S.C.No.90 of 2009, considering the subsequent event of acquittal. But all the other 4 cases which have taken place as stated earlier on 05.09.2006, 07.01.2007, 08.11.2007 and 30.10.2009 are inherently and intrinsically culpable acts which threaten public order in society. There can be no doubt on that aspect at all. It is the cumulative effect of all these cases that has induced the latter subjective satisfaction in the mind of the detaining authority that the detention of the detenu is necessary. Considering the nature of the crimes W.P(Crl.) No.182 of 2010 8 allegedly committed by the detenu, we find no merit whatsoever in the contention that the subjective satisfaction entertained by the detaining authority is vitiated in any manner. 14. The argument that only the incident in the fifth case had taken place in 2009 and the incidents in the other 3 cases had taken place in 2006, 2007 and 2009 is, according to us, no reason to assail the subjective satisfaction entertained by the detaining authority. It is crucial to note that the last of such cases took place on 30.10.2009 and Ext.P1 report was submitted by the 3rd respondent to the 2nd respondent on 30.11.2009 followed by the impugned order of detention on 09.02.2010. There is no such gap of time between the last of the offences alleged and the order of detention as to persuade us to conclude that there is a snapping of the nexus between the last of the alleged acts and the order of detention directing preventive detention. The said challenge must also, in these circumstances, fail. 15. Thirdly and lastly it is contended that the detaining authority had not applied its mind properly to the facts scenario. We fail to understand this contention. On both aspects - the threshold initial objective satisfaction as also the latter W.P(Crl.) No.182 of 2010 9 subjective satisfaction, we find that there has been application of mind by the detaining authority. Objective satisfaction was clearly entertained validly on the basis of the 5 cases referred to earlier. Even eschewing the subsequently acquitted case, the detenu was squarely within the 4 walls of the definition of `known rowdy' in Section 2(p) of the KAAPA. Regarding the latter subjective satisfaction also, we are satisfied that the nature of the offences alleged in the 4 cases referred to in Exts.P1 and P2 (even after excluding the incident alleged in S.C.No.90 of 2009 which has ended in acquittal), we find that there has been proper application of mind and the subjective satisfaction is validly entertained. The challenge raised on the third ground must also, in these circumstances, fail. 16. It is pointed out that the detenu was on bail in all the cases. The mere fact that he was on bail, it is evident from the sequence of events, was not sufficient to prevent him from committing the other crimes. The fifth crime, it must be seen, was committed notwithstanding the fact that there were 4 earlier cases and he was on bail in all the 4 cases earlier. The mere fact that the detenu was on bail in all the 5 cases on the date when the order of detention was passed is certainly not a sufficient W.P(Crl.) No.182 of 2010 10 reason to challenge the latter subjective satisfaction or to challenge the impugned order on the ground that mind had not been applied to all the relevant circumstances.. 17. No other contentions are raised. We are, in these circumstances, satisfied that this Writ Petition only deserves to be dismissed. 18. This Writ Petition is, in these circumstances, dismissed. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/