IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 WP(Crl.).No. 372 of 2008(S) --------------------------- PETITIONER(S): --------------- SADASIVAN, S/O. ARJUNAN ACHARI AGED 55 YEARS, MELEKIZHAKKATHIL VEEDU, T.B. JUNCTION, KOZHENCHERRY, PATHANAMTHITTA DISTRICT. BY ADV. SRI.M.RAJAGOPALAN NAIR SRI.G.BIJU RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR AND DISRICT MAGISTRATE, PATHANAMTHITTA, OFFICE OF THE DISTRICT COLLECTOR, PATHANAMTHITTA. 3. SUPERINTENDENT OF POLICE, PATHANAMTHITTA, OFFICE OF THE SUPERIATANDENT OF POLICE, PATHANAMTHITTA. 4. THE STATION HOUSE OFFICER, ARANMULA POLICE STATION, ARANMULA. ADDL.DIRECTOR GENERAL OF PROSECUTIO SHRI K.K.RAVINDRANATH THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 15/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 PHOTOCOPY OF THE ORDER DATED 30.4.2008 PASSED BY THE SECOND RESPONDENT EXT.P2 PHOTOCOPY OF THE GROUNDS OF DETENTION DATED 30.4.2008 EXT.P3 PHOTOCOPY OF THE ORDER DATED 10.5.2006 IN CC NO.7/2004 EXT.P4 PHOTOCOPY OF THE REPRESENTATION DATED 17.9.2008 //TRUE COPY// A.K.BASHEER & THOMAS P. JOSEPH, JJ. -------------------------------------- W.P.(Criminal) No.372 of 2008 S -------------------------------------- Dated this the 15th day of January, 2009. JUDGMENT Basheer, J. Is the order of detention of Shri M.S.Prakash Kumar, S/o.Sadasivan, Melekizhakkathil Veedu, T.B.Junction, Kozhencherry Village, Pathanamthitta issued by the Authorised Officer under Section 3(2) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (for short, 'the Act') legally valid and sustainable?. 2. The above question has come up for consideration before us in the following facts and circumstances: Petitioner's son Prakash Kumar was arrested and detained in Central Prison , Thiruvananthapuram on August 20, 2008 pursuant to Ext.P1 order dated April 30, 2008 issued by the Authorised Officer/District Magistrate, Pathanamthitta. Ext.P1 reveals that the Authorised Officer after having considered the information received from the Station House Officer of Aranmula Police Station vide FIR No.320/2007 dated 21.6.2007 through the Superintendent of Police, Pathanamthitta, was satisfied that Shri M.S.Prakash Kumar was “a nuisance and danger to the public”, that he had been carrying dangerous weapons to intimidate the public and also that if he was allowed to go free he was likely to involve in more crimes which would endanger WP(Crl)No.372/2008 2 the life and properties of the public. The Authorised Officer further took the view that if Shri Prakash Kumar was allowed “to remain at large he would indulge in antisocial activities which would directly or indirectly cause harm, danger or alarm or a feeling of insecurity among the general public or residents of the area or result in grave or widespread danger to life/public health in that area.” 3. It is not in dispute that the grounds of detention, a copy of which is on record as Ext.P2, was served on the detenu. The Authorised Officer has referred to seven crimes registered against the detenu between 2002 and 2007 by Aranmula Police and Koipuram Police in Ext.P1. We will refer to the details of the above crimes a little later. 4. It is contended by the petitioner that order of detention is ex pace illegal and vitiated as non-application of mind is writ large on the face of the said order. It is pointed out by the learned counsel that Crime No.182 of 2002, Crime No.222 of 2002 and Crime No.386 of 2003 all of which were registered by Aranmula Police against the detenu, were no longer pending, as those cases were disposed of by the jurisdictional Magistrate in 2004-05. The above three crimes are shown as serial numbers 1 to 3 in Ext.P2. Significantly the Authorised Officer has stated in the grounds of detention that all the above three WP(Crl)No.372/2008 3 cases are pending trial before the Judicial Magistrate of First Class-I, Pathanamthitta. He has also referred to certain numbers of Calender Cases in respect of those crimes in Ext.P2. The contention of the petitioner is that the Calender Case arising out of Crime No.182 of 2002 was disposed of on June 17, 2004 whereas the case in relation to Crime No.222 of 2002 was disposed of on March 30, 2005. Similarly the case arising out of Crime No.386 of 2003 had been disposed of by the court on May 10, 2005. While conceding that serial numbers 4 to 7 are pending against the detenu, it is contended by the learned counsel that Exts.P1 and P2 will clearly indicate that there was total absence of application of mind. He contends that the sponsoring authority and the Authorised Officer could not have pleaded ignorance about the status of those three cases. 5. In response to the above contention, it is contended by Shri Ravindranath, learned Additional Director General of Prosecution that even assuming that the Authorised Officer had failed to indicate in Ext.P2 that the above three cases had been disposed of already, the fact that four other crimes are still pending against the detenu is good enough to sustain the order of detention. He further contends that an order of detention issued under Section 3 (2) shall not be deemed to be invalid merely because one or more of the facts WP(Crl)No.372/2008 4 cited among the grounds are vague or non-existent for any reason whatsoever. Learned Additional Director General further contends that the order of detention shall be deemed to have been made by the Government or Authorised Officer after having been satisfied about the need for issuing such an order, having regard to the remaining facts and circumstances. He lays heavy emphasis on the subjective satisfaction that has to be arrived at by the Authorised Officer keepig in view “the need of detention with reference to the remaining facts and circumstances”. 6. It is true that the above contention raised by Shri Ravindranath is supported by the provisions contained in Section 3 of the Act. But it has to be remembered that subjective satisfaction of the detaining authority is of paramount importance. The power vested with either the Government or the Authorised Officer to detain a citizen in preventive custody can be used only with utmost care and caution and that too only adhering to the strict parameters laid down under the statute. 7. We need not refer the various provisions contained in the Act at this juncture to elaborate the settled position. We may only refer to the decision of their Lordships of the Supreme Court in Dharamdas Shamlal Agarwal v. WP(Crl)No.372/2008 5 Police Commissioner [(1989) 2SCC 370] in this context. In the above case an order of detention passed under Sections 3(2) and 6 of the Gujarat Prevention of Anti-Social Activities Act, 1985 was challenged on the ground that the detention of the detenu was necessary to prevent him from acting in any manner prejudicial to public order in the area of Ahmedabad City. While referring to Section 6 of the above Act which is in pari materia to Section 7(4) of the Act, the Apex Court noticed that the detaining authority had failed to refer to the acquittal of the detenu in two cases which were taken as grounds of detention of the detenu in that case. After referring to a number of earlier decisions their Lordships observed thus - “From the above decisions it emerges that the requisite subjective satisfaction, the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influenced his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order. It is clear to our WP(Crl)No.372/2008 6 mind that in the case on hand, at the time when the detaining authority passed the detention order this vital fact namely, the acquittals of the detenu in case numbers mentioned at serial Nos. 2 and 3 have not been brought to his notice and on the other hand they were withheld and the detaining authority was given to understand that the trial of those cases were pending.” It may at once be noticed that in the case on hand the factual position is almost identical. As mentioned earlier in three of the cases referred to in Ext.P2, grounds of detention, the admitted position is that the detenu had been acquitted way back in the year 2004-05. But still, in Ext.P2 the Authorised Officer stated that those three cases were pending trial before the jurisdictional Magistrate. Learned Additional Director General tried to salvage the situation by saying that even ignoring those three cases, there were sufficient materials on record, namely, pendency of four other cases, that would be sufficient enough to arrive at a subjective satisfaction by the detaining authority to order detention. In this context learned Additional Director General also relies on WP(Crl)No.372/2008 7 the severability of the grounds of cases pending against the detenu. But we are afraid, the above contention is totally unsustainable particularly in view of the decision of the Apex Court cited supra. 8. The next contention raised by the petitioner is that the Authorised Officer had primarily relied on the report of a Station House Officer rather than that of the Superintendent of Police as mandated under Section 3(1) of the Act. The opening words of Ext.P1 justifies the above contention. But it is contended by Shri Ravindranath that the Authorised Officer had perused and considered the preliminary report dated January 11,2008 forwarded by the Superintendent of Police, Pathanamthitta as is revealed from Ext.P2, grounds of detention. But there is no clue as to whether the Authorised Officer had relied on this report while passing Ext.P1 because what is referred to in Ext.P1 order of detention is only the so-called “credible information” received from the Station House Officer of Aranmula Police Station in FIR No.320/2007 dated June 21,2007. In that view of the matter we are not persuaded to accept the contention raised by the learned Additional Director General that the Authorised Officer had issued Ext.P1 based on the so-called “preliminary report” of the Superintendent of Police. In our view the order of detention is vitiated since the Authorised Officer WP(Crl)No.372/2008 8 could not have, going by the provisions contained in Section 3(1) of the Act, relied on the information received from a Station House Officer albeit , such information was routed through the Superintendent of Police concerned. 9. Third contention raised by the petitioner is that there was unexplained delay in executing the order of detention. As mentioned earlier, Ext.P1, order of detention was issued on April 30,2008. But, admittedly the said order was executed by arresting the detenu only on August 20, 2008. In this context learned counsel has invited our attention to the decision of their Lordships of the Supreme Court in K.P.M.Basheer v. State of Karnataka [(1992) 2 SCC 295]. In the above decision, the order of preventive detention issued under the COFEPOSA Act was executed after a lapse of five months. After considering the explanation offered for the so-called delay by the detaining authority, the Apex Court held thus - “...............the order of detention cannot be sustained since the 'live and proximate link' between the grounds of detention and the purpose of detention is snapped on account of the undue and unreasonable delay in securing the appellant/detenu and detaining him. ..............”. WP(Crl)No.372/2008 9 It is seen from the above decision that the order of detention of the detenu in that case was set aside on that sole ground. 10. The last contention raised by the petitioner is that there is violation of Sub-section (3) of Section 3 of the Act. It is contended by Shri Rajagopalan Nair, learned counsel for the petitioner, that the Authorised Officer ought to have reported about the issuance of the detention order forthwith to the Government as well as the Director General of Police, Kerala together with a copy of the order and supporting records which, in his opinion, have a bearing on the matter. A perusal of Sub-section (3) of Section 3 of the Act clearly indicates that there is considerable force in the above contention. 11. It is revealed from the counter affidavit of respondent No.1 that the Government had received the report of issuance of the detention order only after it had been executed. Therefore, we are satisfied that Ext.P1 order cannot be sustained. Having regard to the entire facts and circumstances and also for the forgoing reasons, we are satisfied that Ext.P1 order is illegal and unsustainable and is therefore, liable to be quashed. We do so. The detenu shall be released from custody forthwith if his further detention is not necessary in connection with WP(Crl)No.372/2008 10 any other case. We make it clear that this order will not stand in the way of the competent authority to pass appropriate orders under the Act in accordance with law. A.K.BASHEER, Judge. THOMAS P.JOSEPH, Judge. cks