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2010 DIGILAW 42 (KER)

Beevi v. State Of Kerala

2010-01-14

K.M.JOSEPH, P.Q.BARKATH ALI

body2010
Judgment : Joseph, J. The petitioner seeks the following reliefs: "i. Call for the records leading to issuance of Ext.P1 from the 3rd respondent and quash the same by issuing a writ of certiorari, or any other appropriate writ, order of direction. ii) Call for the records leading to issuance of Ext.P7 and quash the same by issuing a writ of certiorari and release the detenu K.K. Razack @ Abdul Razack from the prison forthwith. iii) Declare that 7th respondent have no right to register a crime against the detenu under Section 3 (1) of the Act for detaining him in Jail." 2. The case of the petitioner in brief is as follows: The petitioner is the mother of K.K.Razack @ Abdul Razack who is detained by an order passed under Kerala Anti-Social Activities (Prevention) Act 2007 (herein after referred to as the Act). The order of detention is dated 31-08-09 (Ext.P1). The petitioner produced the grounds of detention as Ext.P2. The allegation against the detenu essentially is that the detenu is a 'Known Goonda". The basis for objective satisfaction in this regard is sought to be derived from two crimes registered under Section 21(a) of The Narcotic Drugs and Psychotropic Substances Act, 1985. It is alleged that on 8/8/2007 at 16.20 hrs. The Sub Inspector of Police arrested the detenu with 3 gms. Of brown sugar from Moonnamthode junction, Thamarassery chungam. A charge sheet has been filed before the Judicial First Class Magistrate I, Thamarassery on 22-01-2008 as C.C. No. 50/2008 and the case is pending trial. Again on 9/8/2008 at 9.40 hrs. The detenu came to be arrested with 1gm and 510 m.g. of brown sugar from Thamarassery Chungam and FIR was registered under Section 21(a) of NDPS Act on 9/8/2008. A charge sheet has been filed before the JFCM, Thamarassery on 5/2/2009 and the case is pending as C.C.No.139/99. It is further stated by the District Magistrate in Ext.P1, the order of WPC.No.32572/09 Page numbers detention, that he has evaluated the information received from the Superintendent of Police and that he is satisfied that the detenu is a 'Known Goonda" and if he happens to be released, he would indulge in anti social activities detrimental to the maintenance of public safety order and peace in the locality. 3. We heard the learned counsel for the petitioner. 3. We heard the learned counsel for the petitioner. Learned counsel for the petitioner would essentially make the following submissions before us : There is non-application of mind by the detaining authority. It is pointed out that there are only two cases. The first case was in the year 2007. Thereafter the second crime was registered on 9-8-2008. There is inordinate delay in passing the detention order and that it is passed only on 31-08-2009. It is pointed out that there is no other instances. It is submitted that the link between the incident and the need for detention did not exist at the time when the order of detention was passed. It is further contended that the offences are said to be committed under Section 21(a) of NDPS Act and the maximum punishment in respect of the offence alleged would be six months. It is submitted that the offences are minor offences. Reference is made to the quantity of the substances which have been seized. It is submitted that detenu has been in detention for four months and one week. It is further contended that under Section 2(t) of the Act which defines the word "Known rowdy", only if he is found guilty in one offence which bears punishment of more than five years or he commits three offences where the sentence should not be less than one year can a person be characterised or deemed as a "known rowdy". It is pointed out that the maximum punishment in both the crimes registered against the detenu is only six months each. Reference is made to Nisha Salim v. State of Kerala and others (2009(2) KHC 1014(DB) to contend that this is not a case where the authorities were justified in ordering detention. It is further contended that it is a case where there is violation of Sections 7 (1), 7(2) and 7(3) of the Act. It is the case of the petitioner that in breach of the mandate of Section 7(1), the order of detention was neither read out to nor served on the detenu. Instead, it was served on detenu's relative. There is also transgression of the dictate of Section 7 (2), it is contended, in so far as the materials were not made available to the detenu. Instead, it was served on detenu's relative. There is also transgression of the dictate of Section 7 (2), it is contended, in so far as the materials were not made available to the detenu. It is further contended that Section 7(3) stood breached by the reason of the fact that the detenu could not represent properly and there is no opportunity for legal consultation made available. It is further submitted that the detenu could not file any representation as he is an illiterate person and he was not served with the order of detention or the materials in breach of Sections 7(1) and 7(2) of the Act. Exts.P4 and P5 representations were filed by the petitioner before the Government and the Advisory Board respectively and it is submitted that the representation has been disposed of by the government vide Ext.P6. There is no consideration as required in law. It is again contended by the learned counsel for the petitioner that the order approving the original order of detention under Section 3(3) was communicated to the detenu only in English. Lastly it is contended that there is violation of Section 20 of the Act in so far as though Section 20 mandates that the orders issued by the government under the Act should bear the seal and the signature of the officer, Ext. P7 order approving the order of detention does not bear the seal and signature of the officer and it is instead issued authenticated by the Section Officer. 4. Learned Government Pleader would contend that there is no merit in the writ petition. He would point out that the offences are serious as they relate to sale of brown sugar. He would submit that having regard to the nature of the trade, this court need not be feel persuaded by the quantity involved in judging the seriousness of the issues . He would further contend that there is some time taken for investigation and filing charge sheet in the second incident. The charge sheet was filed, it is contended, on 5-2-2009 in respect of the alleged offence committed on 9-8-2008. It is further stated that necessarily procedures have to be complied with and in the facts of this case there is no delay. The charge sheet was filed, it is contended, on 5-2-2009 in respect of the alleged offence committed on 9-8-2008. It is further stated that necessarily procedures have to be complied with and in the facts of this case there is no delay. It is submitted that the Sub Inspector of Police has filed a report and it is considered by the Circle Inspector of Police and it is placed before the Superintendent of Police and later the matter was placed before the detaining authority and the order is passed within a reasonable time. Having regard to the nature of the offences also, the link has not been snapped. . It is pointed out that it is note worthy that the second incident was committed by the detenu while he was on bail in connection with the earlier offence and this has been stated in the counter affidavit. It is further submitted that there is no merit in relying on Section 2(t) in a case where the allegation is that the detenu is a "Known Goonda" and it is irrelevant. It is further submitted that all the formalities have been complied with in this case. The order of detention is served on the detenu and acknowledgment is received. The materials were also served on the detenu. It is pointed out that there is no question of opportunity being afforded to the detenu by way of legal consultation, if the detenu does not make any demand and the right to legal consultation is essentially enshrined in the context of the right to make representation before the Government and the Advisory Board which is essentially the right which is enshrined under Article 22(5) of the Constitution also. It is contended by the learned Government Pleader that no grounds have been made out in the representation filed by the petitioner. The representation was considered and Ext.P6 order was passed. It is further stated that the law does not require communication of the order approving the order of detention which means that the fact that the order of approval was communicated to the detenu in English is irrelevant and cannot advance the case of the petitioner. It is lastly contended that there is no merit in the contention based on Section 20 of the Act. 5. Whether the order of detention is illegal by the reason of the fact that it is passed on 31-08-2009? It is lastly contended that there is no merit in the contention based on Section 20 of the Act. 5. Whether the order of detention is illegal by the reason of the fact that it is passed on 31-08-2009? The detenu is detained under Ext.P1 order on the basis that he is a "Known Goonda". For arriving at this objective satisfaction, reference is made to two cases. Both the cases are under the NDPS Act. The detenu has been charge sheeted in two separate instances not forming part of the same transaction for having committed the acts within the meaning of the term "goonda". There is no dispute that the two offences alleged against the detenu can be treated as acts within the meaning of the term goonda. Neither the detaining authority or government, nor this court is ordinarily concerned with as to whether the said offenec is committed and it is a matter to be considered by the criminal courts. For the purpose of this case that it can be safely said that the detenu satisfies the objective criteria to be classified as a known goonda. We are not inclined to render the order of detention vulnerable on the plea of the learned counsel for the petitioner that the case against the detenu, in particular the second offence is fabricated. There is absolutely no plea of malafides even warranting an investigation into that question. 6. We notice that while it is true that the second incident took place on 9-8-2008 and the detention order was passed on 31-08-2009. But we cannot over look the fact that there had to be investigation and filing of a final report and charge sheet was filed in respect of an offence which was allegedly committed on 9-8-2008 on 5-2-2009. Thereafter we find on a perusal of the files that the Sub Inspector of Police initiated the proceedings for filing a report before the Superintendent of Police in June 2009. No doubt when the report of the police was placed before the District Magistrate, he directed the registration of crime under Section 3 of the Act. Whatever that be, within a period of two months of the sponsoring of the case, an order of detention has been passed by the detaining authority. No doubt when the report of the police was placed before the District Magistrate, he directed the registration of crime under Section 3 of the Act. Whatever that be, within a period of two months of the sponsoring of the case, an order of detention has been passed by the detaining authority. Necessarily the authorities must apply their mind as to whether resort must be made to the grave powers which are available under the Act as it would involve deprivation of liberty of a person. We also cannot overlook the fact that the second offence namely the offence on 9-8-2008 was allegedly committed by the detenu while he was on bail. The earlier offence was committed nearly one year back. Therefore it cannot be said that in the facts of this case, there is snap of the link or that there is no nexus available to pass the order of detention on 31-8-2009. The order was executed immediately without any delay and the detenu was admittedly arrested on 6-9-2009. 7. There is compliant by the learned counsel for the petitioner that under Section 2(t) of the Act unless there is an offence which bears the maximum punishment which is not .less than one year, it cannot be taken into consideration, where as the offence committed by the detenu allegedly is one where the maximum sentence is less than one year. We are afraid that there is no merit in the contention. There is no challenge to the vires of the Act. The order of detention is premised on the detenu being a "known goonda". We are only to consider whether the detenu satisfies the objective criteria to be proceeded against as a "known goonda". We have already held that the detenu satisfies the criteria to be proceeded against as a "known goonda". We are not sit in judgment over the wisdom, legality and propriety of legislature providing different criteria for persons to be classified as "known Goonda" on the one hand and "known rowdy" on the other. It is a matter which is clearly beyond the pleadings and the reliefs in the writ petition. 8. Learned counsel for the petitioner pointed out that in Ext.P1 there is reference to the report by the police authorities that petitioner is continuing with his activities and there is no basis for that. It is a matter which is clearly beyond the pleadings and the reliefs in the writ petition. 8. Learned counsel for the petitioner pointed out that in Ext.P1 there is reference to the report by the police authorities that petitioner is continuing with his activities and there is no basis for that. When an order of detention is passed, undoubtedly, there must be subjective satisfaction. Subjective satisfaction is essentially a prognosis of what a person may do in the future based on his activities in the past. The Act in fact contemplates the fulfillment of objective criteria on the basis of certain events which are predicated in the Act. Learned Government pleader justified the report of the Superintendent of Police that the detenu was active. We cannot overlook the line of criminal activity that the detenu is alleged to be engaged in this regard also. 9. We are also not convinced that the petitioner can derive any assistance from 2009(2) KHC 1014. There is a distinction between the public order, disorder or law and order. They are all well known concepts. We should not be oblivious of the facts of this case. The offences which are alleged against the detenu are, in our view, serious, as they relate to the sale of brown sugar and are concerned with aspects of safety and health of members of society. In fact there is reference in the counter affidavit to the effect of sale of such substances on the health of the young members of the society and if the detaining authority as also the government felt that the detenue is to be detained so as to prevent him from committing offences for which apparently there is material and matter in the form of charge sheets filed in respect of two offences committed under the said Act one in 2007 and another in 2008, we do not think it is for this court to sit in judgment in judicial review over the subjective satisfaction of the authorities in this regard. 10. Whether there is violation of Sections 7(1), 7(2) and 7(3) of the Act? The allegation that there is violation of Sections 7(1) and 7 (2) have been denied in the counter affidavit. It is stated that the order of detention and the records were in fact served on the detenu under proper acknowledgment. The learned Government Pleader made available the files. The allegation that there is violation of Sections 7(1) and 7 (2) have been denied in the counter affidavit. It is stated that the order of detention and the records were in fact served on the detenu under proper acknowledgment. The learned Government Pleader made available the files. A perusal of the files would also clearly probabilise the case of the respondents that the detenu acknowledged the receipt of the order of detention on the date of detention itself. Therefore we cannot lay much store in the case of the petitioner that the detenu was not served the order of detention. The acknowledgment would show that the order of detention was indeed read out to him. There is also no basis for the complaint under Section 7(2). The files would reveal that the records were made available to him. 11. The next question is whether there is violation of Section 7(3). Section 7(3) of the Act reads as follows : ."The Superintendent of the Jail where such person is detained shall afford him reasonable opportunity to consult a lawyer and reasonable assistance in making a representation against the detention order to the government or to the Advisory Board." 12. We also bear in mind Article 22(5) which reads as follows: .“When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.” 13. A perusal of Section 7(2) would show that the materials, the grounds of detention and other documents are to be served on the detenu. It further provides that he must be specifically told that he has a right to make a representation to the government and to the Advisory Board. It is in the context of this right to make a representation that Section 7(3) provides that the Superintendent of Jail shall make available opportunity for legal consultation and to assist him in the making of representation. There can be no doubt that in view of the compliance with Section 7(2) it must be held that the detenu was aware of his legal right and constitutional right to make a representation to the government and to the Advisory Board. There can be no doubt that in view of the compliance with Section 7(2) it must be held that the detenu was aware of his legal right and constitutional right to make a representation to the government and to the Advisory Board. The order would also show that the detenu was informed that he has a legal right to make representation to the government and to the Advisory Board. The detenu may or may not exercise the right to make a representation. Neither the constitution nor any law compels a person detained to make a representation. It is a right which is available to him which he may or may not exercise. What Section 7(3) of the Act contemplates in our view is that if the detenu upon being informed of his right to make a representation under Section 7(2) desires to make a representation, the Superintendent of Jail is legally obliged to assist him in the making of representation and also in this direction to afford a reasonable opportunity to consult a lawyer. We would think that the consultation with a lawyer under Section 7(3) is essentially for the purpose of making representation. The law of preventive detention does not contemplate grant of bail. 14. In the context of the provisions, we cannot hold that there is a duty on the part of the Superintendent of Jail to inform the detenu that he has a right to consult a lawyer even if the detenu does not seek it. We find merit in the contention of the learned Government Pleader that where the legislature intended that the right should be made known to the detenu, it has been specifically incorporated. A case in point is the mandate of Section 7 (2) that the detenu must be informed of his right to make a representation to the government and to the Advisory Board. There is no such right which is incorporated in the Act to make known to the right of the detenue for consultation with a lawyer. Essentially if the detenu seeks any such consultation, it cannot be denied to him by the Superintendent of Jail and the Superintendent of Jail is bound to make available opportunity for consultation with a lawyer. This we think is the scheme of the Act. Therefore, we see no merit in the contention of the petitioner based on Section 7(3) of the Act. 15. This we think is the scheme of the Act. Therefore, we see no merit in the contention of the petitioner based on Section 7(3) of the Act. 15. We see no merit in the contention based on Ext.P6. Ext.P6 is the order by which the petitioner was informed that the representation filed by her stands rejected. Exts. P4 and P5 are the representations filed. On a perusal of the representation, the substance of the representation appears to be, in short, that the detenu is innocent. We do not think that it could be said on the basis of the representation filed by the petitioner that Ext. P6 is vitiated or that there has been no proper consideration of the representation. As far as the question of communication of the order of approval in English is concerned, we are of the view that there is no merit in the same. If there is no legal obligation to communicate the order of approval of detention to the detenu we see no purpose or merit in the contention that the detention is bad as the order is not communicated in Malayalam. 16. We also see no merit in the contention based on Section 20 of the Act. Ext. P7 is the order approving the detention. Therein the name of Additional Chief Secretary to Government is shown and it is signed by the section officer. The answer to petitioner's contention is found in paragraph 18 of the counter affidavit of the first respondent. It reads thus: ."The averments in para 15 of the writ petition are not true. As per para 163, Chapter X of the Secretariat Manual, when final decision of Government are communicated, they have to be embodied in the form of Government Order or Circular. A confirmation Order under Section 10 (4) of the Act is final in nature and therefore the decision in this case was communicated as G.O. (Rt)No.3353/2009/Home dated 12-11-2009 in the form of a Government Order prescribed in Appendix II of the Secretariat Manual. The format so prescribed does not require the seal and signature of the Secretary to Government. 17. Learned Government Pleader would submit that the order containing the seal and signature as required under Section 20 should be there in the files. At any rate we do not think that this is a ground on which we should grant relief to the petitioner. 17. Learned Government Pleader would submit that the order containing the seal and signature as required under Section 20 should be there in the files. At any rate we do not think that this is a ground on which we should grant relief to the petitioner. There is another aspect of the matter. It is brought to our notice by the learned counsel for the petitioner that the law of preventive detention is not a punitive measure, but it is a jurisdiction to prevent commission of undesirable activities. It is pointed out that the person who is preventively detained is however sent to jail and has to spend time with convicted persons. Far from reforming any person so detained, it may only make matters worse. We feel that this is a matter which should engage the attention of the government and we direct the Secretary, Ministry of Home to bestow his attention in the matter so that persons who are detained need not spend time detained with convicts. Learned counsel for the petitioner submitted that petitioner has already undergone detention for a period of four months and one week. However, we do not think that the petitioner has made out any ground for interfering with the order of detention. Accordingly, the writ petition fails and the same is dismissed.