IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 15TH OCTOBER 2010 / 23RD ASWINA 1932 WP(Crl.).No. 355 of 2010(S) --------------------------- PETITIONER(S): --------------- GEORGE S/O. YESUDASAN, STANTLY VILASAM, PADAPPAKKARA, PERAYAM CHERRY, MULAVANA VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.C.RAJENDRAN SMT.R.S.SREEVIDYA RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE,KOLLAM. 3. THE DISTRICT SUPERINTENDENT OF POLICE KOLLAM. 4. THE CIRCLE INSEPCTOR OF POLICE, KUNDARA, KOLLAM. 5. THE SUB INSEPCTOR OF POLICE, KUNDARA POLICE STATION, KOLLAM. 6. THE SUPERINTENDENT OF CENTRAL PRISON, THIRUVANANTHAPURAM. SR. GOVT. PLEADER SRI. K.J. MOHAMMED ANZAR & GOVERNMENT PLEADER SRI. C. KAMAPPU FOR R1-6 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 15/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.L. JOSEPH FRANCIS, JJ. ------------------------------------------------- W.P.(Cri) No. 355 of 2010-S ------------------------------------------------- Dated this the 15th day of October, 2010 JUDGMENT Basant,J. Can the activities of a person prior to his acquisition of status as a `known rowdy' under Section 2(p) of the Kerala Anti- Social Activities (Prevention) Act, 2007 (hereinafter referred to as `the KAAPA') be taken into consideration by the detaining authority for entertaining the latter subjective satisfaction under Section 3 of the KAAPA? Inter alia, this interesting question comes up for our decision in this Writ Petition. 2. The petitioner has come to this Court with this petition for issue of a writ of habeas corpus to direct the production of his brother, Shinto, S/o. Yesudasan (hereinafter referred to as `the detenu`), who stands detained as per Ext.P1 order of detention dated 19.3.2010 passed by the second respondent, District Magistrate, Kollam, under Section 3 of the KAAPA. 3. Proceedings were initiated against the detenu on the basis of Ext.P3 report dated 15.3.2010 submitted by the third W.P.(Cri) No. 355 of 2010 -: 2 :- respondent to the second respondent under Section 3(1) of KAAPA. In execution of the said order (Ext.P1), the detenu was arrested/taken into custody on 3.6.2010. The order of detention was approved by the Government by order dated 16.6.2010 under Section 3(3) of KAAPA. Later, the order of detention was confirmed by the Government under Section 10(4) of KAAPA by order dated 3.8.2010. 4. The alleged detenu is classified as a 'known rowdy'. Reliance is placed on the following cases by the sponsoring and detaining authorities to classify the detenu as 'known rowdy': Sl.No. Crime No. & Police Station Date of occurrence Offences alleged State of Investigation 1 2 3 4 5 1 105/09, of Kundara Police Station 31/1/09 Ss.143, 147, 148, 323, 326, 427, 452 r/w. Sec.149 IPC Investigation completed. Charge sheet submitted before the JFMC-I, Kollam. 2 529/09 of Kundara Police Station 28/5/09 Ss.332, 323 IPC` Investigation completed. Pending as CC No.672/09 before the JFMC-II, Kollam. 3 1325/09 of Kundara Police Station 05/12/09 Ss.452, 506(ii), 354 IPC Investigation completed. Submitted final report before the JFMC-I, Kollam. W.P.(Cri) No. 355 of 2010 -: 3 :- As per the order passed under Sec.10(4) of the KAAPA, the detenu will have to continue in custody till 3/12/10. 5. We have heard Sri.C. Rajendran, the learned counsel for the petitioner and Sri.K.J. Mohammed Anzar, the learned Senior Government Pleader. The learned counsel for the petitioner assails the impugned order of detention and the continued detention of the detenu on the following grounds: (i) There was no allegation even that the detenu had indulged in any anti-social activities after the incident in the last of the three cases which brought him within the sweep of the definition of `known rowdy' in Sec.2(p) of the KAAPA. (ii) The live link and the nexus between the need to detain and the actual arrest was snapped because of the long gap of time from 19/3/10 to 3/6/10 and the impugned order of detention is hence bad for that reason. (iii) The right of the detenu under Art.22(5) of the Constitution to have his representation Ext.P13 considered properly and expeditiously is infringed and frustrated because of the delay and the improper consideration of the said representation. W.P.(Cri) No. 355 of 2010 -: 4 :- (iv) At any rate, an order under Sec.15 of the KAAPA would have served the purpose and it was not necessary to pass any order of detention under Sec.3 of the KAAPA. 6. Ground No.(i): The learned counsel for the petitioner Sri.C. Rajendran raises an ingenious contention that to attract an order of detention under Sec.3 of the KAAPA, it must be shown that the detenu, after he acquires the status as a `known rowdy' under Sec.2(p) of the KAAPA, must have committed some contumacious act thereafter. In the absence of a specific allegation of any such contumacious conduct, after the date on which he became a known rowdy under Sec.2(p) of the KAAPA, the order of detention is not justified, contends counsel. 7. To appreciate this contention, we extract below Sec.3(1) of the KAAPA: “3. Power to make orders for detaining Known Goondas and Known Rowdies.-- (1) 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 W.P.(Cri) No. 355 of 2010 -: 5 :- 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 be detained.” (emphasis supplied) The interesting contention advanced by the learned counsel is that the activities of the detenu, after he acquires the status as a known rowdy under Sec.2(p) of the KAAPA, alone can be made use of to entertain the latter subjective satisfaction under Sec.3 of the KAAPA. The counsel argues that in this case only cases - Sl.Nos.1 to 3 have been relied on by the detaining authority to classify the detenu as a known-rowdy. Subsequent to the last of those three cases i.e., Crime No.1325/09 the incident in which took place on 5/12/09, going by the version of the respondents, no crime has allegedly been committed by the detenu. According to the counsel, therefore the order of detention in this case is bad because there is no report of the 2nd respondent “with regard to the activities of any known goonda or known rowdy.” 8. The counsel concedes that there is reference in the impugned order Ext.P1 to a 4th case - Crime No.1302/09 the incident in which took place on 3/12/09. For obscure reasons W.P.(Cri) No. 355 of 2010 -: 6 :- this crime was not taken into account by the detaining authority to decide whether the detenu is a known rowdy or not. The final report in that crime has not been filed so far, it is submitted. Since that crime has not been taken into consideration for the purpose of deciding whether the detenu is a known rowdy, the detenu becomes a known rowdy only after Crime No.1325/09 was allegedly committed on 5/12/09 and the crime on 3/12/09 is one committed even admittedly prior to the date on which the detenu can be said to have acquired the status of known rowdy under Sec.2(p) of the KAAPA. 9. The argument proceeds on the assumption that the latter subjective satisfaction cannot be entertained on the basis of the cases/contumacious acts which were committed prior to the date on which the detenu acquires the status of known known rowdy under Sec.2(p) of the KAAPA. This argument, according to us, is fallacious and cannot be accepted considering the language of Sec.3(1) of the KAAPA. When Sec.3(1) refers to “with regard to the activities of any known goonda or known rowdy”, it cannot be assumed that the activities of the person prior to his acquisition of status as a known goonda or known rowdy cannot be taken into consideration for entertainment of W.P.(Cri) No. 355 of 2010 -: 7 :- the latter subjective satisfaction under Sec.3 of the KAAPA. Such prior activities obviously are not to be ignored or eschewed. The very cases which bring the detenu within the sweep of the expression `known rowdy' under Sec.2(p) of the KAAPA can themselves be taken into account by a detaining authority in an appropriate case to entertain both the former objective threshold satisfaction as also the latter subjective satisfaction. We entertain no doubt on that aspect. There is nothing in the language of Sec.3(1) which can persuade this Court to take the view that activities of the known goonda or known rowdy, after he becomes a known goonda or known rowdy, can alone be taken into consideration for the purpose of entertaining the latter subjective satisfaction. It is impermissible to jump to such a conclusions from the semantics employed in Sec.3(1) of the KAAPA. The very cases which bring a detenu within the sweep of the expression `known goonda' or `known rowdy' can themselves be made use of to entertain the latter subjective satisfaction also, we hold. Going by the purpose of the Statute, the objective which has to attain and the language of Sec.3(1) such a restricted construction as claimed by the learned counsel cannot be accepted. The contention though interesting W.P.(Cri) No. 355 of 2010 -: 8 :- has to be turned down and rejected. The challenge on the first ground therefore fails. 10. Ground No.(ii): The learned counsel contends that though the order of detention was passed on 19/3/10 the detenu was actually arrested only on 3/6/10. The gap of time between 19/3/10 and 3/6/10 is so yawning that the live link and the nexus between the order of detention and the actual detention must be held to be snapped. The subjective satisfaction must hence be held to be vitiated, contends the learned counsel. According to the petitioner, the detenu was available for arrest in the locality during the period from 19/3/10 to 3/6/10. The detenu goes to the extent of urging that he was actually appearing before the police during this period as per the bail conditions in some crimes. The respondents, on the other hand, contend that the detenu was not available and in spite of the best efforts he could not be traced and apprehended. He was absconding, it is contended. 11. Absolutely no material is placed before Court to indicate that the detenu was actually available in the locality. Reliance was placed on the decision in Soja Beegum v. Additional Chief Secretary to Government (2009 (4) KLT W.P.(Cri) No. 355 of 2010 -: 9 :- 550). But it is crucial to note that there is absolutely no material placed before Court to even remotely indicate that the detenu was available in the locality or was actually appearing before the Investigating Officer or the court in any pending matter on the basis of conditions imposed in any bail order. In Soja Beegum (supra) this Court took note of the undisputed circumstance that the detenu was actually appearing before Court during the interregnum. Such material is not placed before the court in this case. In these circumstances, we find absolutely no merit in the contention that the detenu was actually available for arrest and it was the lethargy or inaction on the part of the police that led to the non-apprehension of the detenu till 3/6/10. The detenu has not made available before Court any material to indicate that he was actually present and available for arrest in the locality during the interregnum. In these circumstances, the conclusion is inevitable that the live link or nexus between the order of detention and the actual detention is not snapped. The detenu cannot claim any benefit on the basis of that circumstance. The challenge on Ground No. (ii) also therefore fails. W.P.(Cri) No. 355 of 2010 -: 10 :- 12. Ground No.(iii): The learned counsel for the petitioner argues that the very valuable and cherished fundamental right of a detenu under preventive detention to have his representation before the Government considered expeditiously has been infringed in this case. It is by now trite, and it is not necessary to advert to precedents for that purpose, that every person detained preventively has a right to make an earliest representation before the authorities. This right is recognized under Art.22(5) of the Constitution as a fundamental right and as a statutory right under Sec.7(2) of the KAAPA. It is also trite by now that this right to opportunity to make a representation at the earliest point of time brings with it a concomitant right to have such representation considered expeditiously. Reliance is placed on number of precedents to contend that a particular number of days delay would be fatal. Here again, it is unnecessary to refer to precedents. It is not a mere exercise of counting the number of days between the date of the representation and the date of the order disposing of the representation. Counsel relies on various precedents including the decision in Sulaiman v. State of Kerala (2010 (3) KLT 790) to contend that the delay in this case is fatal. W.P.(Cri) No. 355 of 2010 -: 11 :- 13. Ext.P13 is the representation. The copy produced as Ext.P13 shows the date of the representation as 18/8/10. The original representation available with the Government shows the date as 26/8/10. It was received by the Government through prison authorities on 28/8/10. Evidently, Ext.P13 is prepared by a counsel/a qualified person outside the prison and sent to the detenu for signature and submission to the Government. The date appearing in the copy produced as Ext.P13 cannot, in these circumstances, be held to be of any great significance or relevance. The original of Ext.P13 representation shows that it was signed by the detenu on 26/8/10 and it had reached the hands of the Government on 28/8/10. The file has been placed before us. It is seen that the order was passed on that representation by the Additional Chief Secretary on 20/9/10. The same was served on the detenu on 25/9/10. This writ petition was filed on 8/9/10. 14. The crucial question that arises for consideration is whether the gap of time between 28/8/10 to 20/9/10 is such that it can validly be held that such gap of time before Annexure-I order (the order dated 20/9/10 is produced as Annexure-I) was passed amounts to frustration of the right under Art.22(5) of the W.P.(Cri) No. 355 of 2010 -: 12 :- Constitution and/or under Sec.7(2) of the KAAPA. 15. The learned Government Pleader argues that all the relevant aspects must be taken into consideration before the court holds the gap of any specified number of days to be vital and crucial as to jump to the conclusion that the rights under Art.22(5) of the Constitution/Sec.7(2) of the KAAPA have been frustrated. In this context, the learned Government Pleader submits that the detention was on 3/6/10 as per an order dated 10/3/10. The order was approved on 16/6/10 under Sec.3(3) of the KAAPA and confirmed under Sec.10(4) of the KAAPA on 3/8/10. Ext.P13 representation was signed by the detenu on 26/8/10 and reached the Government only on 28/8/10. By then, the Advisory Board had considered the case of the detenu and had given an opinion in favour of his continued detention. The Government had considered the opinion of the Advisory Board and all other relevant circumstances and had passed the order under Sec.10(4) of the KAAPA on 3/8/10. It is thereafter that the detenu chose to file Ext.P13 representation dated 26/8/10. When complaint of delay in consideration comes up for evaluation of the court, all the relevant circumstances will have to be taken into consideration including the fact that the detenu W.P.(Cri) No. 355 of 2010 -: 13 :- who had not chosen to make any representation before the Advisory Board gave its opinion and Sec.10(4) order was passed by the Government on 3/8/2010 and had chosen to make the representation only on 26/8/10. This is crucial and has got to be borne in mind. While evaluating the significance of the delay in consideration of the representation, the point of time, the sequence and the juncture at which the representation was made is certainly of relevance. We agree with the learned counsel for the petitioner that notwithstanding the disposal of earlier applications if any and notwithstanding the opinion rendered by the Advisory Board and further notwithstanding the order passed under Sec.10(4) of the KAAPA, the detenu has a right to make a representation which representation the Government is bound to consider. We are only on the question whether the gap of time can be held to be so crucial as to invalidate the continued detention of the detenu. In that context we hold that the gap of time is not such in this case as to warrant invocation of our extraordinary constitutional jurisdiction under Art.226 of the Constitution to interfere with the order of detention or the continued detention. In these circumstances we hold that the fundamental right of the detenu under Act. 22(5) of the W.P.(Cri) No. 355 of 2010 -: 14 :- Constitution to have his representation considered expeditiously is not, in any way, frustrated by the delay in considering the same on 20.9.2010 after the same was received on 28.8.2010. 16. The learned counsel then raises a contention that Edxt.P13 representation has not received, the real and proper consideration which it is entitled to. The learned counsel relies on the decisions in Shruthi v. State of Kerala (2009 (4) KLT 893) and Babu v. State of Kerala (2010 (1) KLT 230). Annexure-I is the order under which Ext.P13 has been rejected. Before us, the relevant Government file has also been placed by the learned Government Pleader. We are unable to agree, considering the manner and the nature of the consideration which Ext.P13 received in Annexure-I order and on perusal of the file that there has been any such want of real and proper consideration as to conclude that the fundamental right under Art.22(5) of the Constitution has been frustrated. The learned counsel for the petitioner particularly contends that Ground No. (i) raised in this writ petition, though raised in Ext.P13, has not been considered or referred at all in Annexure-I. Considering the nature of the said contention and the manner in which it is urged in Ext.P13, we are unable to agree that there is want of W.P.(Cri) No. 355 of 2010 -: 15 :- real and proper consideration of the said contention also. The challenge raised on this ground must also, in these circumstances, fail. 17. Ground No.(iv): Finally the learned counsel for the petitioner contends that it was not necessary at all to pass any order of detention under Sec.3 of the KAAPA and it was sufficient to invoke the jurisdiction under Sec.15 of the KAAPA. It is trite that if there are sufficient materials to support an order under Sec.3 of the KAAPA, the discretion exercised by the detaining authority about the need to pass an order of detention under Sec.3 is not justiciable. The constitutional court, in exercise of its powers to issue high prerogative writs like the writ of habeas corpus in this case, is not to sit in judgment over the subjective satisfaction entertained by the detaining authority. If no material whatsoever are there, then certainly the powers of judicial review can be invoked. On the materials available if the detaining authority takes the decision to proceed under Sec.3 of the KAAPA in preference to the possible invocation of the powers under Sec.15 that certainly is not justiciable. This Court cannot sit in appeal and take the view that it would have been better not to invoke the jurisdiction under Sec.3 of the KAAPA and it would W.P.(Cri) No. 355 of 2010 -: 16 :- have been sufficient to invoke the jurisdiction under Sec.15 of the KAAPA. The challenge on the 4th ground must also, in these circumstances, fail. 18. No other contentions are raised at the stage of arguments. We are, in these circumstances, satisfied that the impugned order of detention - Ext.P1 and the continued detention of the detenu as per Ext.P1 do not warrant interference. 19. This writ petition is, in these circumstances, dismissed. R. BASANT (Judge) M.L. JOSEPH FRANCIS (Judge) Nan/