Research › Search › Judgment

Kerala High Court · body

2010 DIGILAW 753 (KER)

Sunitha Mujeeb Rehman v. State of Kerala

2010-10-01

M.L.JOSEPH FRANCIS, R.BASANT

body2010
Judgment :- Basant, J. This application has been filed by the petitioner for issue of a writ of habeas corpus to cause the production of and direct the release of her husband Mujeeb Rehman @ Vetta Mujeeb (hereinafter referred to as ‘the detenu’) who stands preventively detained by Ext.P1 order dated 20/5/10 passed under Sec.3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as ‘the KAAPA’) by the 2nd respondent – the District Magistrate. 2. Proceedings were initiated on the basis of a report (Ext.P12) under Sec.3(1) of the KAAPA submitted by the 3rd respondent – Superintendent of Police to the 2nd respondent – District Magistrate. In execution of the impugned order of detention – Ext.P1 dated 20/5/10, the detenu was arrested/detained with effect from 24/5/10. Order of approval under Sec.3(3) of the KAAPA and order of confirmation under Sec.10(4) of the KAAPA (Ext.P11) have already been passed. The detenu will have to continue in custody till 24/11/10. 3. There was an earlier order of detention under Sec.3 of the KAAPA passed by the 2nd respondent. That order – Ext.P4 is dated 31/10/09. The detenu was taken into custody in execution of Ext.P4 order on 7/11/09. The matter was referred to the Advisory Board. The Advisory Board did not authorize further detention. Accordingly, vide Ext.P6 order dated 11/1/10 passed under Sec.10(4) of the KAAPA, the detenu was released from custody. 4. According to the sponsoring and the detaining authorities, the detenu was subsequently involved in the commission of crimes and it is, in these circumstances, that Ext.P12 report was submitted by the 3rd respondent to the 2nd respondent and the 2nd respondent proceeded to pass Ext.P1 order of detention under Sec.3 of the KAAPA. 5. The detenu is classified as a ‘known rowdy’. Seven cases are relied on by the sponsoring and detaining authorities. 5. The detenu is classified as a ‘known rowdy’. Seven cases are relied on by the sponsoring and detaining authorities. The details of the cases are given below: Sl.No. Crime No. & Police Station Date of the offence Sections of offences Stage of the proceedings 1 2 3 4 5 1 Crime No.728/06 of Kayamkulam Police Station 26/12/06 U/s.143, 147, 148, 149, 323 & 324 IPC Charge sheet filed 2 Crime No.149/07 of Kayamkulam Police Station 09/03/07 U/s. 392, 34 & 411 IPC Charge sheet filed 3 Crime No.571/07 of Kayamkulam Police Station 11/08/07 U/s. 365, 396, 302, 201, 115 & 120B IPC Charge sheet filed 4 Crime No.300/09 of Kayamkulam Police Station 11/04/09 U/s. 452 & 323 IPC Charge sheet filed 5 Crime No.328/09 of Kayamkulam Police Station 22/4/09 U/s. 143, 147, 148, 149, 450, 294(b), 224, 506(ii), 307 IPC R/w 27 of the Arms Act and 3 of the Explosive Substances Act, 1908. Charge sheet not filed 6 Crime No.165/10 of Haripad Police Station 02/03/10 U/s 341, 294(b), 324, 308, 34 IPC & Sec.27 of the Arms Act Charge sheet not filed Crime No.339/10 of Kayamkulam Police Station 18/3/10 U/s. 323, 451, 506(i) R/w 34 IPC Charge sheet not filed 6. It will be apposite straightaway to note that three of the seven cases (Sl.Nos.1 to 3) were specifically referred to in Ext.P4 order. It is also relevant to note that two of these cases (Sl.Nos.4 and 5) relate to incidents which had taken place prior to Ext.P4 order dated 31/10/09. The incidents in those two cases occurred on 11/4/09 and 22/4/09. The remaining two cases (Sl.Nos.6 and 7) took place after Ext.P4 order of detention and Ext.P6 order of release. In short, subsequent to the release under Ext.P6 order, Sl.Nos.6 and 7 were allegedly committed. 7. We have heard the learned counsel for the petitioner and the learned Government Pleader. The learned counsel for the petitioner assails the impugned order on the following grounds: (1) There is significant non-application of mind to relevant facts before passing Ext.P1 order and that vitiates the order of detention. (2) There is gross violation of the mandate of Sec.7(1) of the KAAPA inasmuch as copy of the order of detention was not furnished to the detenu at the time of arrest. (2) There is gross violation of the mandate of Sec.7(1) of the KAAPA inasmuch as copy of the order of detention was not furnished to the detenu at the time of arrest. (3) There is violation of the mandate of Sec.7(2) of the KAAPA inasmuch as copy of Sec.3(1) report dated 19/5/10 had not been furnished to the detenu. (4) The sponsoring and detaining authorities erred grossly in placing reliance now on Cases – Sl.Nos.1 to 3 which were actually referred to in the previous order of detention – Ext.P4 and Cases – Sl.Nos.4 and 5 which had taken place prior to Ext.P4 order and which could have been relied on to support Ext.P4. (5) The representations submitted by the detenu have not been considered properly thereby frustrating the valuable right of the detenu under Art.22(5) of the Constitution. 8. We shall now proceed to consider the above grounds in detail. 9. Ground No.(1): It is trite, and it is hence unnecessary to refer to various precedents that had been relied on, that proper, effective, meaningful, alert and real application of mind must precede every order of preventive detention. Preventive detention is anathema to the concept of freedom and liberty of an individual and the law tolerates preventive detention only in the interest of security and safety of the polity at large. Such preventive detention is permitted and tolerated under the Constitution only under very strict conditions. The learned counsel for the petitioner argues that such alert and meaningful application of mind which must precede the passing of every order of preventive detention has not taken place in this case. 10. The learned counsel relies on two specific circumstances. First of all the learned counsel argues that regarding Case – Sl.No.7, all offences are bailable and the detenu was released from the Police Station. This is so mentioned in Ext.P12. But in Ext.P1 order, it is recorded that the detenu was released on bail – not from the Police Station but by an order of court. We agree with the learned counsel that there is factual inaccuracy. But we are unable to agree that such inaccuracy can lead to an inference of non-application of mind. We reckon that circumstance to be too innocuous a circumstance to infer or conclude that there has been non-application of mind. We agree with the learned counsel that there is factual inaccuracy. But we are unable to agree that such inaccuracy can lead to an inference of non-application of mind. We reckon that circumstance to be too innocuous a circumstance to infer or conclude that there has been non-application of mind. The inaccuracy and the error notwithstanding, the same does not persuade us to conclude that there has been crucial or vital non-application of mind as to warrant interference with the order of detention invoking our constitutional jurisdiction under Art.226 of the Constitution. 11. The more important contention raised by the learned counsel for the petitioner on this aspect is that Ext.P13 bail order passed by the learned Judicial Magistrate of the First Class-I, Haripad, under which the detenu was released on bail in Case – Sl.No.6 referred above has not been adverted to or relied on by the detaining authority. The learned counsel for the petitioner relies on the contents of Ext.P13 to build up an argument that Ext.P13 is a very important document which must have been placed before the detaining authority by the sponsoring authority and to which mind must have been applied alertly by the detaining authority. 12. We feel that it would only be apposite straightaway to refer to the crucial portions in Ext.P13. We extract the same below: “Heard both sides. Investigation Officer filed report stating that A1 and A2 are not needed in police custody. I do not see any reason warranting further judicial custody of A1 and A2. Hence A1 & A2 are released on bail on executing bond for Rs.20,000/- with two solvent sureties each for the like sum. A1 & A2 shall report before the Investigating Officer on every Monday, Wednesday and Saturday until final report is filed or until further orders. A1 & A2 shall not intimidate the witnesses or tamper with evidence.” 13. We have been taken through all the relevant documents. We agree with the learned counsel for the petitioner that there is absolutely no indication available from the impugned order – Ext.P1, the grounds of detention or any other contemporaneous documents to conclude that the conditions imposed under Ext.P13 were specifically considered by the detaining authority before the impugned order was passed. We agree with the learned counsel for the petitioner that there is absolutely no indication available from the impugned order – Ext.P1, the grounds of detention or any other contemporaneous documents to conclude that the conditions imposed under Ext.P13 were specifically considered by the detaining authority before the impugned order was passed. The relevant conditions imposed are that the detenu must appear before the officer investigating that particular crime on all Mondays, Wednesdays and Saturdays until the final report is filed or until further orders. The detenu is further restrained from intimidating the witnesses or tampering with the evidence. The learned counsel for the petitioner wants this Court to further note that the Investigating Officer had reported to the court that the detenu was not needed in police custody. 14. The learned counsel for the petitioner builds up an argument that the conditions imposed order Ext.P13 were crucial and vital. To prevent the detenu from committing crimes in future – to deter him from anti-social activities, which is the soul of the reason for detention under Sec.3, the conditions imposed were sufficient and it was not necessary to direct preventive detention. The learned counsel further submits that the statement of the Investigating Officer that the detenu is not needed in police custody is also a relevant factor to decide whether his preventive detention under Sec.3 of the KAAPA is necessary or not. These having not been specifically adverted to by the sponsoring and detaining authorities, the impugned order of detention is bad for non-application of mind properly and adequately, contends counsel. 15. The learned Government Pleader, on the contrary, contends that the submission of the Investigating Officer that the accused are not needed in police custody has relevance only to the investigation in that particular crime. The Investigating Officer had not even stated that the detention in judicial custody was not necessary. A statement by the Investigating Officer that an accused is not necessary in police custody cannot by any stretch of imagination be reckoned as a certificate that the accused is not likely to indulge in any such crimes thereafter. There was no admission that his detention in judicial custody was not necessary. A statement by the Investigating Officer that an accused is not necessary in police custody cannot by any stretch of imagination be reckoned as a certificate that the accused is not likely to indulge in any such crimes thereafter. There was no admission that his detention in judicial custody was not necessary. According to the learned Government Pleader, from that statement of the Investigating Officer, it would be absolutely improper to jump to a conclusion that an order of detention under the KAAPA will not be necessary or even that such statement of the Investigating Officer was crucially relevant while deciding the question of detention. 16. Similarly, the learned Government Pleader argues that the conditions imposed that till the final report is filed or until earlier orders are passed, the accused must appear before the Investigating Officer on specified dates is not a condition regulating the possibility or the propensity of the accused to indulge in such crimes thereafter. That was a condition purely to secure the interests of investigation in that particular crime. The further observation/direction that the detenu/accused should not intimidate witnesses or tamper with the evidence is also a condition which is intended to secure purely the interest of the investigation in that crime and not the probability, possibility or the propensity of the accused/detenu to commit future offences or indulge in anti-social activities. 17. The learned counsel for the petitioner relies on the following decisions: (1) Usha Agarwal v. Union of India (2007 (1) SCC 295) (Paragraphs 11 and 13) (2) Elizebath George v. State of Kerala (2008 (4) KLT 425) (Paragraph 18) (3) Philip v. State of Kerala & Others (2009 (2) KLJ 715) and (4) Sulekha v. State of Kerala (2003) (1) KLT 374). 18. The learned counsel for the petitioner argues relying on the above decisions that the question is not whether a particular document/input would have persuaded the detaining authority not to order preventive detention; the crucial question is whether the document is such a document which has vital relevance/bearing on the question of need of detention of the detenu to prevent anti-social activities. It is no answer to contend that even if the document were seen by the detaining authority and considered by the detaining authority, the conclusion would not have been different. 19. It is no answer to contend that even if the document were seen by the detaining authority and considered by the detaining authority, the conclusion would not have been different. 19. We are in complete agreement with the learned counsel for the petitioner that the question is not the impact which the document/input may have actually made in the mind of the detaining authority. The crucial question is whether the document/input is such that it must be considered by the detaining authority before the order of detention is passed. If following the test in Usha Agarwal (supra) paragraph-13 the document is found to be a crucial and vital document relevant to the issue, the fact that the detaining authority may still have ordered detention after considering the document is totally irrelevant and an inadequate defence to a plea of non-application of mind. 20. The learned Government Pleader does not dispute the propositions of law but submits that in the facts and circumstances of this case it can never be held that the conditions imposed in Ext.P13 is such a crucial or vital input/document that the sponsoring authority should have placed the same before the detaining authority and the detaining authority must in the order of detention have referred to that order. 21. The learned Government Pleader in this context places reliance on the decision in K. Varadharaj v. State of Tamil Nadu (AIR 2002 SC 2953). That Bench was called upon to consider whether there was conflict between the two earlier decisions of the Supreme Court as to whether all bail orders passed in respect of the detenu must necessarily be placed before the detaining authority by the sponsoring authority. The learned Government Pleader submits that it is not at all essential that all bail orders must be placed before the detaining authority by the sponsoring authority. It depends upon the nature, importance and the significance of the order of bail. A rigid and inflexible stand that all orders of bail passed in favour of a detenu must be placed before the detaining authority is legally unsustainable, argues the learned Government Pleader. The learned Government Pleader in particular relies on paragraph-6 of the decision in K. Varadharaj (supra) which we extract below: “6. A rigid and inflexible stand that all orders of bail passed in favour of a detenu must be placed before the detaining authority is legally unsustainable, argues the learned Government Pleader. The learned Government Pleader in particular relies on paragraph-6 of the decision in K. Varadharaj (supra) which we extract below: “6. From the above observations, it is clear that placing of the application for bail and the order made thereon are not always mandatory and such requirement would depend upon the facts of each case. We are in respectful agreement with the view expressed by the abovesaid two judgments which in our opinion are not conflicting.” 22. It is trite that it is not the law that every earlier bail application and the order passed in such application should be placed before the detaining authority or considered by the detaining authority. We agree with the learned Government Pleader that this is more so in a case of detention under the KAAPA where apprehension of future involvement of the detenu in anti-social activities can be entertained only if he is already a known rowdy (goonda) involved in at least three/(two) previous cases. In all such cases there normally must have been orders granting bail. In spite of such orders of bail the subsequent crimes must have been committed by the detenus. The learned Government Pleader submits that the dictum in K. Varadharaj (supra) is particularly relevant in the context of preventive detention under the KAAPA. We find that approach to be reasonable. 23. The learned Government Pleader further points out that it is not as though the sponsoring and the detaining authorities had not adverted to the fact of the detenu securing bail in previous crimes committed by him. In fact, the learned Government Pleader heavily relies on the relevant observations in Ext.P1 in paragraph-9. In that paragraph it is specifically mentioned that in Ext.P13 crime bail has already been secured by the detenu. Even the names of the sureties are mentioned in paragraph-9. The fact that he was released from custody on the strength of the bail order on 12/3/10 is also specifically mentioned in paragraph-9. 24. The learned Government Pleader points out that in paragraph-12 the detaining authority had stated specifically that the detenu is not a person who can be deterred from indulging in anti-social activities by conditions of bail imposed on him. 25. 24. The learned Government Pleader points out that in paragraph-12 the detaining authority had stated specifically that the detenu is not a person who can be deterred from indulging in anti-social activities by conditions of bail imposed on him. 25. We find merit in the submission of the learned Government Pleader. It is not a case where the fact that the detenu had secured bail under Ext.P13 was not known to the sponsoring and detaining authorities. They knew that fact. They applied their mind to that fact. They expressed the opinion that the detenu was a person who cannot be deterred from indulging in anti-social activities by the bail conditions imposed on him. In spite of that, the detaining authority decided in favour of detention. 26. We would have been happier definitely if the detaining authority had referred to the specific conditions in Ext.P13. But judicial review against an order of preventive detention cannot merely be an exercise to ascertain the level of perfection achieved by the sponsoring and detaining authorities. A constitutional court in judicial review must realistically take note of all the circumstances. Here is a case where the detaining authority was evidently aware of bail granted under Ext.P13. He was aware of the release of the accused on the strength of Ext.P13. Though the conditions imposed under Ext.P13 are not specifically referred to, it is stated very clearly in the order of detention that the detenu is not a person who can be deterred from committing antisocial activity on the strength of conditions of bail. 27. In this context, we look at the conditions of bail again. There is not one condition in Ext.P13 order which is imposed by the court with an intention to deter the detenu from indulging in crimes later. Both the conditions imposed refer to the interest of a proper investigation in the said crime. Till final report is filed or earlier directions are issued, the detenu must make himself available before the Investigating Officer – evidently for interrogation. He should not tamper with the witnesses or threaten them – again a condition to secure the interests of investigation in that crime. 28. Till final report is filed or earlier directions are issued, the detenu must make himself available before the Investigating Officer – evidently for interrogation. He should not tamper with the witnesses or threaten them – again a condition to secure the interests of investigation in that crime. 28. We agree with the learned counsel for the petitioner that the possible impact of the bail order and the conditions imposed on the ultimate decision of the detaining authority to direct detention or not is not to be considered by us. The question is whether Ext.P13 – more particularly, the conditions imposed therein are so crucial, vital and important that it can be held that non-application of mind specifically to those conditions can vitiate the order of detention. It is in this view of the matter that we hold that the conditions imposed in Ext.P13 cannot be held to be so crucial, vital or important as to invalidate the order of detention for the reason that the sponsoring authority did not place Ext.P13 before the detaining authority or the detaining authority did not specifically advert to the conditions stipulated therein. 29. The learned counsel for the petitioner points out that this is not a bail order which was distant in point of time vis-à-vis the order of detention. The alleged crime in Sl.No.6 was committed on 2/3/10. The detenu was arrested immediately thereafter (3/310 it is said). He was ordered to be released on 12/3/10 under Ext.P13. He Circle Inspector of Police had recommended to the Superintendent of Police on 26/3/10 that action must be taken against the detenu under the KAAPA and the Superintendent of Police by Ext.P12 dated 13/5/10 had sponsored the detenu for detention before the 2nd respondent. The order of detention was passed on 20/5/10 and he was arrested on 24/5/10. What the learned counsel for the petitioner wants to highlight is that the order of detention was on 20/5/10 and the order granting bail was on 12/3/10. The gap of time between 12/3/10 and 20/5/10 is not too big or yawning as to conclude that it was not essential to refer to Ext.P13. What the learned counsel for the petitioner wants to highlight is that the order of detention was on 20/5/10 and the order granting bail was on 12/3/10. The gap of time between 12/3/10 and 20/5/10 is not too big or yawning as to conclude that it was not essential to refer to Ext.P13. We make it clear that we are holding that the omission to refer to the conditions in Ext.P3 are not fatal not because of the time gap between Ext.P13 and the date of the order of detention; but because the nature of the conditions are not crucially or vitally relevant in deciding the need to order detention. In this view of the matter, we conclude that the omission to refer to the conditions of bail in Ext.P13 in the order of detention – Ext.P1 or the omission of the sponsoring authority to place Ext.P13 before the detaining authority cannot lead to an inference of non-application of mind and consequent invalidation of the order of detention. The challenge on the first ground therefore fails. 30. Ground No.(2): The learned counsel for the petitioner argues that there has been a fatal infraction of the provisions of Sec.7(1) of the KAAPA leading to denial of justice. The crux of the contention is that Sec.7(1) of the KAAPA which we extract below mandates the furnishing of a copy of the order of detention at the time of arrest itself. 31. Sec.7(1) of the KAAPA reads as follows: “7. Grounds of order of detention to be disclosed. – (1) When a person is arrested in pursuance of a detention order, the officer arresting him shall read out the detention order to him and give him a copy of such order. (2) xxxxxxxxx (3) xxxxxxxxx (4) xxxxxxxxx (emphasis supplied) 32. the counsel straightaway relies on the decision in Union of India v. Paul Manickam (2003 SC 4622) to argue that in the matter of preventive detention the provisions of law are to be strictly construed and any inadequacy in the compliance of the strict terms of the statute must invite and lead to invalidation of detention. Reliance is particularly placed in paragraph-14 of Paul Manickam (supra). 33. Reliance is particularly placed in paragraph-14 of Paul Manickam (supra). 33. The learned counsel argues that in the instant case admittedly the arrest had taken place at 7.15 a.m. On this aspect there is no dispute and we do not therefore choose to refer to the various documents relied on. The endorsement made by the detenu for acknowledging copies of documents furnished to him reveal that the acknowledgement was given only at 4.40 p.m. To put it in a nutshell, the argument of the counsel is that the mandate of Sec.7(1) of the KAAPA which insists on contemporaneous granting of a copy of the order of detention at the time of arrest has been violated. What should have been done at 7.15 a.m., the acknowledgment reveals was done only at 4.40 p.m. The provision strictly construed has not been complied with. This is a fatal infraction and must lead to invalidation of the detention, argues the learned counsel for the petitioner. 34. The learned Government Pleader, on the contrary, argues that there has been literal compliance of the mandate of Sec.7(1) of the KAAPA. Arrest was effected. The counsel was notified. Copy of the order of detention was furnished. It is true that the acknowledgment was given only at 4.40 p.m. The fact that the acknowledgment bears the time 4.40 p.m. does not and cannot lead to a ready and instant inference that the copy was furnished only at 4.40 p.m. It would be puerile and perverse to jump to such a conclusion. The learned Government Pleader argues that the detenu who was versed in the procedure, as he was already detained earlier once, had perhaps with intentions not very fair chosen to acknowledge the order of detention later. According to the learned Government Pleader, at the time of arrest, the order of detention was read over to him and a copy was furnished. Under Sec.7(2) of the KAAPA he was entitled to the grounds of detention as also all the relevant documents. Even though the detaining authority could have postponed the furnishing of the grounds of detention and the copies of documents upto a period of 5 days from the date of detention it was felt that the order of detention, the grounds of detention and all the documents relied on can all be furnished at the time of arrest itself. All those documents were furnished. All those documents were furnished. All those documents were read over also. The documents had to be acknowledged. There was some reluctance on the part of the detenu to acknowledge the same. Only after he was permitted to contact his counsel and the counsel instructed him to do so, did the detenu acknowledge receipt of all these documents. The learned Government Pleader argues that if one would reasonably and realistically have a look at the volume of records that were furnished to the detenu at the time of his arrest itself, the fact that he had acknowledged the same only at 4.40 p.m. would lose all its significance. It cannot be asserted that there was crucial or vital gap of time between arrest and the acknowledgment. Inference that the acknowledgment must have been at the precise time when the document was furnished would be perverse in this case because the acknowledgment reveals that on all pages of the voluminous documents the detenu had made acknowledgment. Finally on the order he put the time also as 4.40 p.m. The learned Government Pleader submits that 4.40 p.m. noted in the acknowledgment is not the time when the arrest was effected or the time when the documents were handed over. That represents only the time that the detenu finally made the acknowledgment after reading over all the documents and affixing his signature in acknowledgement on all pages of those documents. 35. The contention of the learned Government Pleader does appear to us to be significant. The learned counsel for the petitioner submits that the person who arrested the detenu arrayed as respondent No.4 has not chosen to file any affidavit or statement. He has not asserted before court that all these documents were furnished at the time of arrest itself and that acknowledgment happened to be delayed for reasons that were not attributable to the arresting officer. That explanation, if true, should have been made clear to the court by an affidavit/statement to be filed by the 4th respondent, contends the counsel. 36. We have considered all the relevant inputs on this aspect. That the detenu was arrested at 7.15 a.m. is accepted. That documents were furnished to him is admitted and accepted. That he had given his acknowledgment at 4.40 p.m. is also not disputed. We have looked at the nature of the acknowledgment given and the voluminous nature of the documents. We have considered all the relevant inputs on this aspect. That the detenu was arrested at 7.15 a.m. is accepted. That documents were furnished to him is admitted and accepted. That he had given his acknowledgment at 4.40 p.m. is also not disputed. We have looked at the nature of the acknowledgment given and the voluminous nature of the documents. We have taken note of the fact that the detenu has stated that the documents were read over to him. He had acknowledged on all pages of the documents. We have tried to assess, evaluate and speculate the possible time that must have been taken by the detenu to read all the documents and acknowledge in each page of the document. We will safely assume, even in the absence of an affidavit by the 4th respondent that the final acknowledgment stating the time and details must have been given after reading over all these documents and after acknowledging receipt on each page of the documents. So reckoned the time gap between 7.15 a.m. and 4.40 p.m. cannot be held by us to be crucial or vital as to lead to an inference of vital and fatal infraction of Sec.7(1) of the KAAPA. We take note of the gap of time vis-à-vis the volume of work that must have been done before the documents were furnished, they were read over; they were acknowledged in each page and final acknowledgment was given at 4.40 p.m. In any view of the matter, we are not persuaded to agree that there is any such crucial, vital or fatal infraction of the mandate of Sec.7(1) of the KAAPA as to lead to invalidation of the order of detention. The challenge raised on Ground No.(2) thus cannot hence succeed. The same fails. 37. Ground No.(3): The learned counsel for the petitioner argues that there has been infraction of the mandate of Sec.7(2) of the KAAPA. To be specific the contention is that the report submitted by the 3rd respondent to the 2nd respondent under Sec.3(1) of the KAAPA has not been furnished to the detenu. Ext.P1 order of detention, Ext.P2 grounds of detention as also the list of documents which were furnished to the detenu reveal that reliance was placed on a report dated 19/5/10; whereas Ext.P12 report furnished is not one dated 19/5/10 but is one dated 13/5/10. 38. Ext.P1 order of detention, Ext.P2 grounds of detention as also the list of documents which were furnished to the detenu reveal that reliance was placed on a report dated 19/5/10; whereas Ext.P12 report furnished is not one dated 19/5/10 but is one dated 13/5/10. 38. The learned counsel for the petitioner submits that inasmuch as the report under Section 3(i) relied on by the detaining authority is not furnished to the detenu, the order of detention is bad in law. The learned counsel for the petitioner in this context relies on the decision in Sulaiman v. Additional Chief Secretary [2009 (3) ILR Kerala 83]. 39. We are in ready agreement with the learned counsel for the petitioner that the report under Section 3(1) submitted by the Superintendent of Police (3rd respondent) to the detaining authority (2nd respondent) is a very important document and copy thereof has got to be furnished to the detenu under Section 7(2) of KAAPA. There can possibly be no dispute on that proposition. 40. The learned Government Pleader submits that a mountain is attempted to be made out of a mole hill. There is only one report under Section 3(1) and that is the report dated 13.05.2010, copy whereof has admittedly been furnished to the detenu. The learned Government Pleader submits that it is true that in the order of detention and in the grounds, reference is made to a report dated 19.05.2010. There is no such report dated 19.05.2010. What really has happened is that the report dated 13.05.2010 was sent after curing defects along with a covering letter dated 19.05.2010 which was received by the 2nd respondent on 19.05.2010. While describing the report under Section 3(1), the very same document, copy of which has been furnished to the detenu was described to be a report dated 19.05.2010. This, in short, is the adequacy in the furnishing of documents. There is no separate report dated 19.05.2010 and there is no report under Section 3(1) other than Ext.P12. 41. Want of sufficient care in preparing the documents is perhaps reflected in the controversy raised. The fact remains that no one has a case that there was any report other than the report, copy of which has been furnished to the detenu under Section 3 (1). Whether described to be a report dated 13.05.2010 or 19.05.2010, the report is one and the same. The fact remains that no one has a case that there was any report other than the report, copy of which has been furnished to the detenu under Section 3 (1). Whether described to be a report dated 13.05.2010 or 19.05.2010, the report is one and the same. We do not, in these circumstances, find any such worthwhile reason to complain of infraction of the mandate of Section 7(2) regarding furnishing of copies. The mis description of Ext.P12 as a document dated 19.05.2010 in Exts.P1 and P2 is according to us not a valid reason to invoke the powers of judicial review to interfere with Ext.P1 order. The challenge raised on ground No.3 also, in these circumstances, does fail. 42. Ground No.4: The learned counsel for the petitioner points out that 7 cases have been relied on by the detaining authority to justify the former objective threshold satisfaction as also the latter subjective satisfaction under Section 3 of the KAAPA. The counsel argues that cases Sl.Nos.1 to 3 above were already actually relied on by the detaining authority to issue the earlier order of detention Ext.P4 dated 31.10.2009. The counsel argues relying on the decisions in Ibrahim Bachu Bafan v. State of Gujarat. [A.I.R 1985 S.C 697], C.B. Kahar v. N.L. Kalna [AIR 1989 S.C 1234] and Praseetha v. State of Kerala [2009 (4) KHC 382 (DB)] that circumstances which have been relied on to justify an earlier order of detention cannot subsequently be used to entertain satisfactions to pass a subsequent order of preventive detention. Therefore according to the counsel, cases 1 to 3 should not have been relied on for any purpose by the detaining authority. 43. Secondly the counsel contends that the crimes in cases Sl.Nos.4 and 5 had taken place prior to 31.10.2009, the date of the earlier order of detention Ext.P4. Those could very well have been made use of by the detaining authority to justify the earlier order Ext.P4 passed. They were not actually pressed into service to justify Ext.P4 order. In Ext.P4 order, there is no reference to cases Sl.Nos.4 and 5, but they are cases which could have been relied upon earlier. In these circumstances, reliance now placed on cases Sl.Nos.4 and 5 is unjustified. They cannot be made use of for any purpose – either to entertain the former objective or latter subjective satisfactions, contends the learned counsel. 44. In these circumstances, reliance now placed on cases Sl.Nos.4 and 5 is unjustified. They cannot be made use of for any purpose – either to entertain the former objective or latter subjective satisfactions, contends the learned counsel. 44. The court had occasion to consider this question in some detail in the decision in Praseetha v. State of Kerala (supra). On the opinion of the Advisory Board, Ext.P6 order of release was passed on 11.01.2010 under Section 10(4) of the KAAPA. The Advisory Board having come to the conclusion that the earlier order of detention is not justified, it was not open to the detaining authority to consider the same afresh, it is argued. Reliance is placed on Praseetha v. State of Kerala (supra) to contend that events prior to 31.10.2009, cannot be relied upon to justify the present order of detention. 45. The learned Government Pleader on the contrary contends that cases 1 to 5 can certainly be taken note of by the detaining authority now to decide whether the detenu is a known rowdy or not. The bar against use of materials which have already been relied upon in an earlier order of detention [which has expired by elapse of time or which has been revoked by an order of revocation under Section 10(4) or Section 13 or because a Constitutional Court in exercise of its extraordinary constitutional jurisdiction has quashed the order of detention] can apply only to the latter subjective satisfaction and cannot affect the status of the detenu as a known rowdy. The learned Government Pleader places reliance on the provisions of Section 13 and Section 7(4) to contend that status as a known rowdy is an objective fact capable of actual verification and there is no subjectivity whatsoever in ascertaining the status of the detenu as a known rowdy or known goonda under the KAAPA. The learned Government Pleader points out that this question was specifically considered in a later decision in W.P.(Crl) No.121 of 2010 Uma v. State of Kerala (unreported dated 20.08.2010). 46. We shall look at the question afresh. The learned Government Pleader points out that this question was specifically considered in a later decision in W.P.(Crl) No.121 of 2010 Uma v. State of Kerala (unreported dated 20.08.2010). 46. We shall look at the question afresh. The bar against reliance afresh on materials on which an earlier order of detention is passed (which order has already been executed in full or revoked later under Sec.10(4) or Sec.13 or quashed by a high prerogative writ issued by a constitutional court) can apply in the light of the dictum in Ibrahim Bachu Bafan v. State of Gujarat, C.B. Kahar v. N.L. Kalna and Praseetha v. State of Kerala (supra) only in respect of the latter subjective satisfaction. The same cannot affect the former objective satisfaction under Section 3. This is so found in Uma (supra). 47. In this context it must be noted under that under Section 3 of the KAAPA two satisfactions are to be entertained. The first is the initial threshold objective satisfaction. There is no element of subjectivity at all in such satisfaction. It is only a verifiable fact whether the detenu is a ‘known rowdy’ or a ‘known goonda’ under Section 2(p) and 2(o). The status of a person as a ‘known rowdy’ or ‘known goonda’ continue unaffected whether such cases which bring him within the sweep of the expression ‘known rowdy’ or ‘known goonda’ were relied on to justify an earlier order of detention or not. But different is the case so far as the latter subjective satisfaction is concerned. The subjective satisfaction on the basis of which an order of detention is passed has to be on the basis of materials. If once an order of detention has been passed on the strength of those materials a fresh order of detention cannot be passed claiming that the subjective satisfaction is entertained on the basis of the very same materials. 48. The crux of the contention of the learned Government Pleader is that all the previous cases, if they fall within the sweep of the expression ‘known rowdy’ or ‘known goonda’ can be taken into consideration to decide the status of the detenu as a ‘known rowdy’ or ‘known goonda’. That those cases were relied upon to justify that conclusion in an earlier order of detention is irrelevant. We are in agreement with the learned Government Pleader on this aspect. That those cases were relied upon to justify that conclusion in an earlier order of detention is irrelevant. We are in agreement with the learned Government Pleader on this aspect. We have held so in Uma (supra). 49. We are in agreement with the learned counsel for the petitioner that cases relied on in an earlier order of detention, (which has expired by elapse of the period of detention or which has not been confirmed under Section 10(4) or which has been set aside by a constitutional court in judicial review) cannot be relied upon again for the purpose of entertaining the latter subjective satisfaction in a later order of detention. In that view of the matter, reliance placed on cases Sl.Nos. 1 to 3 cannot obviously be justified. 50. The counsel argues that in so far as cases Sl.Nos. 4 and 5 are concerned, they could have been relied on to entertain the subjective satisfaction in Exts.P4 as those are prior to the date of Ext.P4 i.e. 31.10.2009. The counsel argues that those cases which could have been relied upon to support the earlier order cannot be relied upon afresh to entertain the requisite satisfaction in a later order of detention. 51. The learned Government Pleader submits that the question need not be gone into in detail in this case as at any rate cases Sl.Nos. 6 and 7, which have occurred subsequent to the release of the detenu on the strength of Ext.P6 order passed under Section 10(4) dt.11.1.2010 can at any rate be taken into consideration. 52. We find force in that contention. We do not want in this case to express a final opinion as to whether cases which could have been relied on in an earlier order of detention but which were not actually relied upon, can be relied upon to justify a subsequent order of detention. We leave that question open to be decided in an appropriate case where the question squarely arises for consideration. 53. We come back to the facts of this case. In Ext.P4 order nine cases were relied upon to come to a conclusion that the detenu is a known rowdy. In the present case seven cases are relied upon, including three cases which were relied on in the earlier order of detention, (Ext.P4) to come to the conclusion that the detenu is a known rowdy. In Ext.P4 order nine cases were relied upon to come to a conclusion that the detenu is a known rowdy. In the present case seven cases are relied upon, including three cases which were relied on in the earlier order of detention, (Ext.P4) to come to the conclusion that the detenu is a known rowdy. We have already taken the view that all the cases which fall within he sweep of he expression known rowdy in Section 2(p) can be relied on to ascertain the status of the detenu as a known rowdy objectively. In that view of the matter Sl.Nos. 1 to 7 can all be taken into consideration and we hold that the detenu is a known rowdy on the date of Ext.P1. That conclusion of the Detaining Authority is correct and is perfectly justified by the materials on record. 54. It will be apposite straight away to note that cases Sl.Nos. 5 to 7 are cases in which final reports have not been filed. We are bound by the dictum in Elizabeth George. That decision clearly shows that filing of the final report is not a condition precedent or sine qua non to rely on such case as one of the cases for the purpose of Section 2(p). It is true that in some subsequent decisions we have expressed reservations on that conclusion. A reference is pending before the Full Bench also. But at the moment we are bound by the dictum in Elizabeth George and we are satisfied that cases Sl.Nos. 5 to 7, though no final report has been filed in them, can be relied upon for the purpose of ascertaining the status of the detenu as a known rowdy. We may hasten to note that even without placing reliance on cases, Sl.Nos. 5 to 7, cases Sl.Nos. 1 to 4 by themselves are sufficient to include the detenu in the category of a known rowdy under Section 2(p). 55. We shall now assume for the sake of arguments that cases Sl.Nos. 1 to 5 cannot be relied upon by the Detaining Authority to entertain the latter subjective satisfaction. We have already held that cases, Sl.Nos. 1 to 3 cannot be so relied on. We assume that cases, Sl.Nos. 4 and 5 cannot also be relied on. Learned Government Pleader submits that even if cases Sl.Nos. 1 to 5 were eschewed from consideration, cases Sl.Nos. We have already held that cases, Sl.Nos. 1 to 3 cannot be so relied on. We assume that cases, Sl.Nos. 4 and 5 cannot also be relied on. Learned Government Pleader submits that even if cases Sl.Nos. 1 to 5 were eschewed from consideration, cases Sl.Nos. 6 and 7 are adequate, sufficient and convincing to justify the entertainment of the latter subjective satisfaction under Sec. 3. 56. We have been taken through the facts of the cases Sl.Nos. 6 and 7. We remind ourselves of the law that subjective satisfaction entertained by the Detaining Authority is not justiciable. That satisfaction entertained by the Detaining Authority has to be respected and in judicial review this Court cannot sit in appeal over the said subjective satisfaction. If no materials at all are available, of course, reliance on those cases can be faulted in judicial review. But where materials are available, sufficiency and adequacy of the materials to entertain the satisfaction cannot be interfered with by this Court in judicial review. 57. We have been taken through the facts of cases, Sl.Nos. 6 and 7. We are satisfied that cases Sl.Nos. 6 and 7 by themselves are sufficient and do justify the latter subjective satisfaction entertained in this case by the Detaining Authority – that preventive detention of the detenu is necessary to deter him from committing anti-social activities in future. 58. The learned counsel for the petitioner contends that subjective satisfaction cannot be split up. Going by Exts. P1 and P2 the latter subjective satisfaction has been entertained on the basis of all the seven cases together. If Sl.Nos. 1 to 5 cannot be taken into consideration, the court cannot ascertain whether the latter subjective satisfaction was entertained by the Detaining Authority on the basis of cases Sl.Nos. 1 to 5 or cases Sl.Nos. 6 and 7. In as much as this cannot be ascertained the entire satisfaction must fail, contends the learned counsel. Learned counsel for the petitioner on this aspect placed reliance on paragraphs-13, 14 and 15 of C.B. Kahar (supra). 59. We are afraid that this contention cannot help the learned counsel for the petitioner now. Section 7(4) of the KAAPA brings into the KAAPA the principle of severability, which has now been recognized in the preventive detention law. Learned counsel for the petitioner on this aspect placed reliance on paragraphs-13, 14 and 15 of C.B. Kahar (supra). 59. We are afraid that this contention cannot help the learned counsel for the petitioner now. Section 7(4) of the KAAPA brings into the KAAPA the principle of severability, which has now been recognized in the preventive detention law. From Section 5(A) of the COFEPOSA Act it has been recognized by the Legislature that the contention that the subjective satisfaction is not severable cannot be accepted. Section 7(4) incorporates this principle in the KAAPA. It is true that the Detaining Authority had stated that the subjective satisfaction was entertained on the basis of cases Sl.Nos. 1 to 7. We now find that the subjective satisfaction is justified on the basis of cases, Sl.Nos. 6 and 7. It is here that Section 7(4) of the KAAPA becomes important. We extract Section 7(4) below: “S.7(4). The order of detention shall not be deemed to be invalid merely because one or more of the facts or circumstances cited among the grounds are vague, non-existent, irrelevant or invalid for any reason whatsoever and such order shall be deemed to have been made by the Government or the Authorized Officer after having been satisfied about the need for detention with reference to the remaining facts and circumstances, provided that the minimum conditions for bring classified as a known goonda or known rowdy are satisfied. (emphasis supplied)” 60. No more can it be validly contend that the subjective satisfaction is not severable. If the subjective satisfaction has been entertained with reference to plurality of facts and circumstances and one or some of them are later found to be vague, non-existent, irrelevant or invalid for any reason whatsoever, the order of detention must be presumed to have been issued on the basis of the subjective satisfaction entertained on the basis of the remaining circumstances. 61. So reckoned, we find no merit in the contention that cases, Sl. Nos. 6 and 7 cannot and should not have been relied upon to entertain the latter subjective satisfaction and that the subjective satisfaction allegedly entertained cannot now be sought to be justified with the help of cases, Sl.Nos. 6 and 7 sans cases Sl.Nos. 1 to 5. The challenge raised on Ground No.4 does also in these circumstances fail. 62. Nos. 6 and 7 cannot and should not have been relied upon to entertain the latter subjective satisfaction and that the subjective satisfaction allegedly entertained cannot now be sought to be justified with the help of cases, Sl.Nos. 6 and 7 sans cases Sl.Nos. 1 to 5. The challenge raised on Ground No.4 does also in these circumstances fail. 62. Ground No.5: The learned counsel for the petitioner finally contends that the representations submitted by the detenu have not been properly considered by the Government. This, the counsel contends, amounts to negation of the valuable and cherished constitutional fundamental right under Article 22(5). It is trite that Article 22(5) recognizes the right of a detenu to be afforded an earliest opportunity of making a representation against the order of detention. It is unnecessary to refer to the various precedents. It is trite that this right to be afforded the earliest opportunity of making a representation brings with it the concomitant fundamental right to early consideration of such representation as also the right for a real and proper consideration of such representation and the right to be communicated with the order passed on such representation. As this position of law is not disputed and is conceded we are not adverting to the precedents cited at the bar. 63. The short question is whether there has been the infraction of the obligation on the part of the Government to consider the representations made by the detenu. 64. The learned counsel for the petitioner relies on Ext.P8. The counsel contends that Ext.P8 does not reveal real and proper consideration of the two representations referred to therein, i.e. representations dated 27.5.10 and 28.5.2010. 65. It is also well settled that there is no right of opportunity for the detenu to be heard while considering such representations. It is also well established that it is not necessary to pass a speaking order on such representations. But the minimum irreducible right of the detenu is that his representation must receive a real and proper consideration. Such consideration would certainly depend upon the nature of the representation also. The petitioner has not produced the said representations dt. 27.5.10 and 28.5.10. The learned Government Pleader has placed before us the said representations. We have been taken through the relevant records to reveal how those representations were considered. Such consideration would certainly depend upon the nature of the representation also. The petitioner has not produced the said representations dt. 27.5.10 and 28.5.10. The learned Government Pleader has placed before us the said representations. We have been taken through the relevant records to reveal how those representations were considered. In Shruthi v. State of Kerala (2009 (4) KLT 893) and Babu v. State of Kerala (2010 (1) KLT 230) this Court had occasion to consider the nature and quality of the consideration which such a representation is entitled to. Suffice it to say that the nature and quality of the consideration has a nexus with the nature of the representation also. In the nature of the representations made in the petitions dt. 27.5.10 and 28.5.10 we are unable to agree that there has been no real and proper consideration of those representations. That he is a recently married person, that he is not guilty of the allegations and that the cases initiated against him are false are the precise grievances raised in those representations. Those general and vague representations cannot be held to be not considered and the reply, Ext.P8, cannot by any stretch of imagination be held to reveal want of real and proper consideration of those representations. The relevant files have been placed before us. We have perused the same. The grievance raised that the representations dt. 27.5.10 and 28.5.2010 have not been considered properly before Ext.P8 order was issued cannot also in these circumstances be accepted. 66. We now come to Ext.P9 representation. That is a representation made by the detenu to the Government after the earlier representations were rejected. Successive representations made, unless they show a different and distinct new circumstance, cannot lead to a justifiable grievance that the right under Article 22(5) has been infringed. The question primarily is whether any different and distinct representation has been made in Ext.P9. It will then have to be considered whether such representation has received the consideration which it is entitled. 67. The petitioner has a grievance that Ext.P9 dt. 26.6.2010 was not considered or its fate conveyed to the detenu till this petition was presented on 13.8.2010. The learned Government Pleader points out that there is no merit in this contention at all. Ext.P9 representation had been considered and by communication dt. 67. The petitioner has a grievance that Ext.P9 dt. 26.6.2010 was not considered or its fate conveyed to the detenu till this petition was presented on 13.8.2010. The learned Government Pleader points out that there is no merit in this contention at all. Ext.P9 representation had been considered and by communication dt. 8.7.2010, which is acknowledged by the detenu on 16.7.2010, its fate was communicated to the detenu. We are satisfied about this fact. The grievance of non-consideration of the representation and non-communication of the fate of the representation cannot, in these circumstances, be sustained factually. 68. Learned counsel for the petitioner contends that even assuming that Ext.P9’s fate was communicated to the detenu under communication dt. 8.7.10 the same does not reveal the real and proper consideration for which the detenu is entitled as recognized in Shruthi and Babu (supra). 69. That contention now remains to be considered. We have gone through Ext.P9 in detail. In Ext. P9 there is repetition of the general and vague representations made already in the earlier representations dt. 27.5.10 and 28.5.2010. The learned counsel submits that all the grounds raised in the Writ Petition have virtually been raised in Ext.P9 also. 70. We have gone through Ext.P9. We note that various contentions have been raised. The file has been produced before us by the learned Government Pleader to indicate the manner, nature and quality of the consideration that the representation received. We are unable to agree that Ext.P9 which was rejected by the communication dt. 8.7.2010 did not receive a real and proper consideration. We do note that a reasoned order is not given for Ext.P9. But that is far from saying that Ext.P9 did not receive the real and proper consideration which it received. Only one question of substance appears to us to have been raised before the Government in Ext.P9. That is about the relevance of cases, Sl.Nos. 4 and 5, which have been relied on to pass the subsequent order of detention, though those were available even when the earlier order of detention was passed. All the other contentions are only repetition of the contentions raised in the two earlier representations. That contention, we have already noted, does not deserve to be considered in this case. Non-consideration of that contention in detail cannot lead to the inference that the fundamental right under Article 22(5) has been infringed. 71. All the other contentions are only repetition of the contentions raised in the two earlier representations. That contention, we have already noted, does not deserve to be considered in this case. Non-consideration of that contention in detail cannot lead to the inference that the fundamental right under Article 22(5) has been infringed. 71. Suffice it to say that we are not persuaded to agree that the quality of consideration which Ext.P9 received at the hands of the Government is sufficient to invalidate the continued detention of the detenu. The challenge raised on the 5th ground also cannot succeed in these circumstances. 72. No other contentions are raised. We are, in these circumstances, satisfied that the impugned order of detention (Ext.P1) and the continued detention of the detenu under that order do not call for interference in judicial review. 73. In the result, this Writ Petition is dismissed.