IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 5TH OCTOBER 2010 / 13TH ASWINA 1932 WP(Crl.).No. 329 of 2010(S) --------------------------- PETITIONER(S): --------------- JASILA NISSAM, W/O.NISSAM, C.P.HOUSE, KURAKODE, PALLIPURAM P.O., PALLIPURAM. BY ADV. SRI.M.DINESH RESPONDENT(S): --------------- 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. GOVERNMENT PLEADER SRI. C. KAMAPPU. FOR R1-3 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 05/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.L. JOSEPH FRANCIS, JJ. ------------------------------------------------- W.P.(Cri) No.329 of 2010-S ------------------------------------------------- Dated this the 5th day of October, 2010 JUDGMENT Basant,J. The petitioner has filed this writ petition under Art.226 of the Constitution for issue of a writ of habeas corpus to direct the production of her husband Nissam @ Vaidyan Nissam, who is under preventive detention as per Ext.P1 order dated 23/6/10 passed by the 2nd respondent - District Magistrate, under Sec.3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as `the KAAPA'). The detenu was arrested on the basis of Ext.P1 order on 4/7/10 and he continues in custody from that date. Order of approval under Sec.3(3) of the KAAPA and order of confirmation under Sec.10(4) of the KAAPA have already been passed, it is submitted. The detenu will have to remain in preventive detention till 4/1/11 as per the W.P.(Cri) No.329 of 2010 -: 2 :- order passed under Sec.10(4) of the KAAPA. 2. The detenu is classified as a `known rowdy' under Sec.2 (p) of the KAAPA. The impugned order of detention - Ext.P1, is passed on the basis of a report dated 18/6/10 submitted by the 3rd respondent - Superintendent of Police, to the 2nd respondent - District Magistrate. In that report Ext.P3 the Superintendent of Police had relied on 8 cases enumerated as Case Nos.1 to 8 in Ext.P1 order; whereas the 2nd respondent - District Magistrate, had passed the impugned order of preventive detention placing reliance on Case Nos.1 to 6 and 8 i.e., 7 out of the said 8 cases alone. No reliance was placed on the 7th case i.e., Crime No.103/10 of Vattappara Police Station. 3. Before us, the learned counsel for the petitioner and the learned Government Pleader have advanced their arguments. Though various contentions are seen raised in the writ petition, in the course of arguments before us, the learned counsel for the petitioner Sri.M. Dinesh raises only the following contentions to assail the impugned order of detention and the continued detention of the detenu. (i) The 3rd respondent erred grossly in sponsoring the detenu for detention under Sec.3(1) of the KAAPA with the help of Case Nos.4, 5 and 6 referred to in Ext.P1 which were all W.P.(Cri) No.329 of 2010 -: 3 :- registered at Police Stations outside his territorial jurisdiction. (ii) Irrelevant documents were furnished to the detenu; thereby causing confusion and virtually denying his right to make an effective representation under Art.22 of the Constitution. (iii) There was fatal infraction of the provisions of Sec.7(2) of the KAAPA inasmuch as the rowdy history sheet was not furnished to the detenu along with copies of other documents. 4. Ground No.(i): The learned counsel for the petitioner submits that the 2nd respondent had passed Ext.P1 order of preventive detention on the basis of the report under Sec.3(1) of the KAAPA submitted by the 3rd respondent. The submission appears to be a factual inaccuracy. Ext.P1 shows that that order was passed on the basis of a report under Sec.3(1) of the KAAPA received not from the 3rd respondent (Deputy Commissioner of Police (L&O), Trivandrum), but the Superintendent of Police, Trivandrum Rural. We note that it is actually the mis- description of the 3rd respondent and the petitioner had really intended to array the Superintendent of Police, Trivandrum Rural who submitted the report under Sec.3(1) as the 3rd respondent.` 5. Now coming to the contention. The contention is that W.P.(Cri) No.329 of 2010 -: 4 :- the Superintendent of Police, Trivandrum Rural had submitted the report dated 18/6/10 under Sec.3(1) of the KAAPA in respect of 8 cases and 3 of those 8 cases (Case Nos.4, 5 and 6) relate to cases registered at the Valiyathura Police Station. Valiyathura Police Station is not a Police Station falling within the territorial jurisdiction of the Superintendent of Police, Trivandrum Rural. The learned counsel for the petitioner hence argues that the Superintendent of Police, Trivandrum Rural erred in submitting Sec.3(1) report relying on 3 crimes registered at the Valiyathura Police Station which is not within his territorial jurisdiction. It is further submitted that Ext.P3 report shows that the Superintendent of Police, Trivandrum Rural had initiated proceedings on the basis of a report submitted by the Circle Inspector of Police, Venjaramoodu and the Deputy Superintendent of Police, Attingal. The other limb of the contention is that the Deputy Superintendent of Police, Attingal or the Circle Inspector of Police, Venjaramoodu also do not have territorial jurisdiction over the Valiyathura Police Station where Case Nos.4, 5 and 6 were registered. 6. We have considered this contention very carefully. It will be apposite to refer to Sec.3 of the KAAPA first of all. We extract Sec.3(1) below: W.P.(Cri) No.329 of 2010 -: 5 :- “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 prevent 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) 7. What Sec.3(1) of the KAAPA stipulates is that the Government or the District Magistrate must entertain the requisite satisfaction 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. The satisfaction which the District Magistrate must entertain is that it is necessary to detain such known rowdy or known goonda to prevent him from committing any anti-social activity W.P.(Cri) No.329 of 2010 -: 6 :- within the State of Kerala. 8. What primarily impresses us is the fact that there is no stipulation in Sec.3(1) of the KAAPA that the report of the Superintendent of Police must be with reference to the activities of the known goonda or known rowdy within his territorial limits alone. Significantly such a stipulation even impliedly is not there in Sec.3(1) of the KAAPA. The activities of the known goonda or known rowdy may be at any place, but the perception of the propensity to commit anti-social activities must be perceived by the Superintendent of Police and such Superintendent of Police must sponsor the known rowdy/known goonda for detention under Sec.3 of the KAAPA to the District Magistrate/ Government. We are unable to read into Sec.3 any mandate that the Superintendent of Police can furnish information only about the activities of the known rowdy/known goonda that have taken place within his territorial jurisdiction. Moreover, Sec.3(1) of the KAAPA makes it very clear that the propensity to commit anti-social activity within the State of Kerala is to be perceived and not necessarily the propensity to commit such activity within the respective jurisdiction of the Superintendents of Police who make the report under Sec.3(1) of the KAAPA. Either way therefore we are unable to accept the W.P.(Cri) No.329 of 2010 -: 7 :- contention that the report submitted by the Superintendent of Police, Trivandrum Rural on the basis of which the 2nd respondent proceeded to pass the order of detention is, in any way, defective or can be faulted for that reason. The report under Sec.3(1) referred substantially to the activities of the detenu within the jurisdiction of the Superintendent of Police. It also referred to the activities of the detenu outside the jurisdiction of the officers. We are unable to agree that that reference vitiates the sponsoring done by the Superintendent of Police, Trivandrum Rural. 9. We further note that all the 8 crimes referred to in Ext.P3 report and all the 7 crimes relied on by the 2nd respondent in Ext.P1 order relate to crimes registered within the jurisdiction of the 2nd respondent. In any view of the matter, we find no merit in the attempt to avail the report under Sec.3(1) on the ground that 3 of the 8 crimes referred to in Ext.P3 have not been committed within the jurisdiction of the Superintendent of Police, Trivandrum Rural who had submitted Ext.P3 report to the 2nd respondent. The challenge on ground No.(i) must, in these circumstances, fail. 10. Ground No.(ii): It is next contended that irrelevant documents were furnished to the detenu which resulted in W.P.(Cri) No.329 of 2010 -: 8 :- confusion about the relevancy of documents virtually denying the right of the detenu to make an effective representation under Art.22 of the Constitution. The relevant file has been placed before us. There is nothing to show that any document other than the documents referred to by the sponsoring authority in his report under Sec.3(1) of the KAAPA or the detaining authority in Ext.P1 were actually furnished to the detenu. The irrelevant documents allegedly furnished have not been made available before the court. The relevant file has been placed before us and we note that the acknowledgment given by the detenu refers only to the 8 crimes. As per the acknowledgment FIR, charge sheet etc., in those 8 crimes alone were furnished to the detenu. The argument of the learned counsel for the petitioner is that in addition to the documents relating to these 8 crimes several documents relating to other crimes were also furnished to the detenu. We are left in the dark about the identity of such allegedly irrelevant documents furnished. The acknowledgment available in the file of the detenu clearly shows that except the documents relating to the 8 crimes documents relating to no other crimes were furnished to the detenu. 11. The question whether furnishing of documents which are not referred to in the report of the sponsoring authority or W.P.(Cri) No.329 of 2010 -: 9 :- the order of detention passed by the detaining authority would amount to frustration of rights under Art.22 of the Constitution need not be gone into by us in any greater detail in this judgment as there is nothing to show that any such irrelevant documents were actually furnished to the detenu. We will reserve that consideration for a case where there is specific material to satisfy us that irrelevant documents were actually furnished resulting in possible confusion in the mind of the detenu and consequent frustration of his right to make a representation under Art.22(5) of the Constitution. The challenge on ground No.(ii) also does, in these circumstances, fail. 12. Ground No.(iii): The learned counsel for the petitioner submits that both in Ext.P3 report of the sponsoring authority and Ext.P1 order of the detaining authority (as also in the grounds of detention - Ext.P2) there is reference to a rowdy history sheet maintained against the detenu in Vattappara Police Station. A copy of the said rowdy history sheet has not been furnished to the detenu. It is contended that the omission to furnish the said rowdy history sheet referred to in Exts.P1, P2 and P3 amounts to infraction of the valuable right of the detenu under Sec.7(2) of the KAAPA which we extract below: W.P.(Cri) No.329 of 2010 -: 10 :- “7. Grounds of order of detention to be disclosed.-- (1) x x x x x x x x x (2) The grounds of detention, specifying the instances of offences, with copies of relevant documents, as far as practicable, on the basis of which he is considered as a “known goonda” or “known rowdy” and giving such materials- relating to his activities on the basis of which his detention has been found necessary, shall be furnished to him as soon as possible, nevertheless, in any case, within five days of detention and he shall also be informed in writing, under acknowledgment, of his right to represent to the Government and before the Advisory Board against his detention: Provided that nothing in this section shall require any authority to disclose to the detained person any fact, the disclosure of which will reveal the identity of any confidential source or the disclosure of which will be against the interests of internal security or national security.” (emphasis supplied) 13. The learned counsel argues that this omission to furnish copy of the rowdy history sheet has, in turn, affected the W.P.(Cri) No.329 of 2010 -: 11 :- very valuable right of the detenu to make a representation under Art.22(5) of the Constitution which right is again recognised under Sec.7(2) of the KAAPA. We have carefully considered this contention. It is true that there is a reference to a rowdy history sheet being maintained against the detenu; but significantly no reliance has been placed in Ext.P1 order on such rowdy history sheet maintained or the entries in such history sheet. There is a reference to a rowdy history sheet being opened against the detenu. But, according to us, significantly it is not relied upon for any purpose by the detaining authority. The right to be furnished with documents to the detenu under the preventive detention has a laudable purpose to achieve i.e., to enable the detenu to understand why he is detained and to make a proper representation before the authorities which is recognised as a fundamental right under Art.22(5) of the Constitution. The omission to furnish the rowdy history sheet, according to us, has not resulted in any infraction of the right under Art.22(5) and Sec.7(2) of the KAAPA. The right to make a representation is not, in any way, affected by the omission to furnish copy of the rowdy history sheet or its contents which have not been relied upon at all by the detaining authority. The challenge on this third ground must also, in these circumstances, fail. W.P.(Cri) No.329 of 2010 -: 12 :- 14. No other contentions are raised. 15. We are, in these circumstances, satisfied that the impugned order of detention - Ext.P1, and the continued detention of the detenu do not call for interference by invoking our extraordinary constitutional jurisdiction under Art.226 of the Constitution. 16. This writ petition is, in these circumstances, dismissed. R. BASANT (Judge) M.L. JOSEPH FRANCIS (Judge) Nan/ W.P.(Cri) No.329 of 2010 -: 13 :-