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2010 DIGILAW 838 (KER)

Lini v. District Magistrate, Kollam

2010-10-29

M.L.JOSEPH FRANCIS, R.BASANT

body2010
Judgment :- Basant, J. The petitioner has come to this Court with this petition for issue of a writ of habeas corpus to direct the production and release of her husband Earnest (hereinafter referred to as ‘the detenu’) who stands detained preventively as per Ext.P1 order dated 15.9.2010 passed by the 1st respondent – District Magistrate, under Sec.3 of the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred to as ‘the KAAPA’.) 2. In execution of Ext.P1 order dated 15.9.2010 the detenu was taken into custody on 23.9.2010. The order of approval under Sec.3(3) of the KAAPA has already been passed on 5.10.2010. The order under Sec.10(4) of the KAAPA is yet to be passed. 3. The detenu is categorized as a ‘known goonda’ under Sec.2(o) of the KAAPA. Reliance was placed on 5 cases against the detenu in Ext.P1 order of detention. The detenu was sponsored for detention by the second respondent – Superintendent of Police, Kollam as per Ext.P2 report dated 23.7.2010 submitted by the second respondent. The following are the 5 cases relied on by the first respondent to categorise the detenu as a ‘known-goonda’. S.N. Crime No. & Police Station C.C.No. Offences alleged Stage of the Case 1. Crime No.268/05 Chavara Thekkumbhagam Police Station reported on 18.11.2005 970/06 U/s. 12 r/w 20 of the Kerala Protection of River Bank and Regulation of Removal of Sand Act. Found guilty and convicted. 2. Crime No.11/09 Chavara Thekkumbhagam Police Station reported on 4.1.2009 267/10 U/s.341 & 323 of the Indian Penal Code Pending trial 3. Crime No.423/09 Chavara Thekkumbhagam Police Station Reported on 23.10.2009 542/10 U/s.12 r/w 20 & 21 of the Kerala protection of River Bank and Regulation of Removal of Sand Act. Pending trial 4. Crime No.72/10 & Chavara Thekkumbagam Police Station reported on 28.1.2010 605/10 U/s.379 & 34 of the Indian Penal Code Pending trial 5. Crime No.220/10 & Chavara Thekkumbhagam Police Station reported on 20.3.2010 579/10 U/s.12 r/w.20 & 21 of the Kerala Protection of River Bank and Regulation of Removal of Sand Act. Pending trial 4. We have heard detailed arguments advanced by the learned senior counsel, Shri. K. Ramkumar for the petitioner and the learned senior Government Pleader Sri. Mohammed Anzar for the respondents. Learned counsel for the petitioner assails the impugned order on 8 specific grounds. We shall now proceed to consider the said 8 specific grounds. 5. Pending trial 4. We have heard detailed arguments advanced by the learned senior counsel, Shri. K. Ramkumar for the petitioner and the learned senior Government Pleader Sri. Mohammed Anzar for the respondents. Learned counsel for the petitioner assails the impugned order on 8 specific grounds. We shall now proceed to consider the said 8 specific grounds. 5. First of all it is contended that so far the cases 3, 4 and 5 are concerned, there is no valid cognizance taken by the Courts. The offences alleged in cases 3, 4 and 5 referred above are all under Kerala Protection of River Bank and Regulation of Removal of Sand Act, 2001 (for short ‘the Kerala Sand Act’). The learned counsel for the petitioner argues that as a matter of fact reliance is placed both in Ext.P2, report of the sponsoring authority and Ext.P1 order of the detention authority, on the fact that cognizance has been taken by Courts concerned. Such cognizance is taken admittedly on the basis of final reports submitted by the police. The learned counsel for the petitioner argues that the cognizance taken by the learned Magistrate is not legally valid or justifiable in the light of the decision in Ismayil v. State of Kerala (2010 (3) KLT 706). 6. At the outset we note that Ext.P1 reveals that in all these cases, the final reports (chargesheets) have been filed after investigation by the police and cognizance has been taken by the learned Magistrate. The cognizance taken by the learned Magistrates have not been assailed in any proceedings. At any rate, cognizance taken by the Courts in these 3 cases have not been struck down by any Court. In these circumstances, the mere fact that cognizance, if challenged such challenge may be upheld in the light of the decision in Ismayil v. State of Kerala (supra) is by itself not a valid reason to assail the cognizance taken or the reckoning of those three cases under Section 2(o) of the KAAPA. 7. The learned Government Pleader alertedly points out that under Section 2(o)(ii) it is not cognizance taken that matters or is relevant. In order to be used as a case against the detenu under Section 2(o)(ii), what is required is that on investigation or enquiry the detenu must be found to be guilty of the offences alleged. The cognizance taken by the Courts is actually irrelevant. In order to be used as a case against the detenu under Section 2(o)(ii), what is required is that on investigation or enquiry the detenu must be found to be guilty of the offences alleged. The cognizance taken by the Courts is actually irrelevant. What is relevant under Section 2(o)(ii) is only “the finding on investigation or enquiry” by a competent police Officer etc. In these three cases undoubtedly, the investigation has been conducted by the Investigating Police Officer. He had come to the conclusion that the detenu is guilty of the offences alleged against him and he has filed reports to that effect before the learned Magistrate. 8. The learned Government pleader submits that it may be true that not a final report, but a complaint ought to have been filed by the Investigating Officer. But that does not affect at all the finding rendered on the investigation by him. There is no quarrel or dispute that the police officer is entitled to investigate a crime under the Kerala Sand Act. In the course of such enquiry, he has also got to come to a finding as to whether the accused has committed an offence or not. Not the final report or the complaint that follows, but it is the finding on investigation of the culpability of the detenu that really matters for the purpose of Sec.2(o)(ii). After finding the detenu guilty, ideally a complaint must have been filed as insisted by Ismayil (supra). But in these 3 cases instead of a complaint only final reports (chargesheets) have been filed. Whether consequent to the finding of guilt it is a complaint or final report that is filed, what is the crucial under Sec.2 (o) is only the finding of guilt. In this view of the matter, the learned Government Pleader argues that the alleged defect in the course adopted by the Investigating officer after finding the detenu guilty of the offence alleged against him under the Kerala Sand Act can have no bearing whatsover, when we consider the play of Sec.2(o)(ii) of the KAAPA. 9. The learned Government Pleader points out that the decision in Elizabath George v. State of Kerala (2008 (4) KLT 425) is authority for the proposition that not even a final report need be filed. It is enough if the Investigating Officer comes to a finding that the detenu has committed the offence. 9. The learned Government Pleader points out that the decision in Elizabath George v. State of Kerala (2008 (4) KLT 425) is authority for the proposition that not even a final report need be filed. It is enough if the Investigating Officer comes to a finding that the detenu has committed the offence. In these 3 cases, the Investigating Officers, have undoubtedly found the detenu to be guilty. They have proceeded further to file the final reports (chargesheets). Notwithstanding the fact the cognizance could have been taken only on a complaint and not on a final report, that has no bearing and does not at all affect the finding of guilt on the investigation conducted by the investigating officers. We find the contention of the learned Government pleader to be eminently reasonable and acceptable. Notwithstanding the inadequacy/error in the course which the investigating officers followed after he found the detenu to be guilty in the 3 cases referred above, the same can in no way affect the play of Section 2(o)(ii). For the purpose of clarity we extract S.2 in extensor as we shall have to refer to the Section later to consider the other grounds also. “S.2(o) ‘Known Goonda’ means a goonda who had been, for acts done within the previous seven years as calculated from the date of the order imposing any restriction or detention under this Act- (i) found guilty, by a competent Court or authority at least once for an offence within the meaning of the term ‘goonda’ as defined in Clause (j) of Section 2, or “(ii) found in any investigation or enquiry by a competent police officer, authority or competent court, on complaints initiated by persons other than police officers in two separate instances not forming part of the same transaction, to have committed any act within the meaning of the term ‘goonda’ as defined in clause (j) of Section 2. Provided that an offence in respect of which a report was filed by a Police Officer before a lawful authority consequent to the seizure, in the presence of witnesses, of alcohol, spirit, counterfeit notes, sand, forest produce, articles, violating copyright, narcotic drugs, psychotropic substances, or currency involved in hawala racketeering may be included for consideration though the report had resulted from an action initiated by a police officer.” Explanation: An instance of an offence involving a person, which satisfies the conditions specified in the definition of known rowdy referred to in clause(p) of Section 2 can also be taken into consideration as an instance, along with other cases, for deciding whether the person is a known goonda or not”. (Emphasis supplied) 10. The learned counsel for the petitioner argues that both in the report of the sponsoring authority and in Ext.P1 order of detention the fact highlighted is the fact that courts have taken cognizance. We are afraid this cannot be accepted. It is true that there is reference to the cognizance taken by the courts. The relevant case numbers of the cases pending before the Courts are also furnished. But what is relevant is only the fact that finding of guilt have been entered at the investigation. That the court had acted upon that finding of investigation is purely incidental and not material at all. In these circumstances, the mere fact that in Exts.P1 and P2, there is reference to cognizance taken by the Courts and that the numbers of the cases pending before Court under cases Sl.Nos.3 to 5 have been furnished cannot in any way alter our conclusion. The challenge under first ground does in these circumstances failed. 11. Secondly it is contended that case number 1 has not been taken into reckoning by the sponsoring authority in Ext.P2 report, as one of the cases under Section 2(o). But the same has been reckoned by the detaining authority in Ext.P1 order of detention as a relevant case. The counsel contends that this dichotomy between Ext.P2 and P1 must deliver to the detenu the advantage which is legitimately due to him. 12. We are afraid this contention cannot be accepted. The detaining authority is certainly not a prisoner of opinions expressed by the sponsoring authority in the reports submitted to the Detaining Authority. The counsel contends that this dichotomy between Ext.P2 and P1 must deliver to the detenu the advantage which is legitimately due to him. 12. We are afraid this contention cannot be accepted. The detaining authority is certainly not a prisoner of opinions expressed by the sponsoring authority in the reports submitted to the Detaining Authority. It is for the sponsoring authority to furnish all relevant details/facts in the report submitted by him to the detaining authority under Sec.3(i). The detaining authority is to consider the report anxiously and rely on what is acceptable and reject/eschew what is not acceptable. The mere fact that the sponsoring authority, though he has furnished all the relevant details, had not chosen to rely on a particular fact is no reason for the detaining authority to meekly ignore or overlook that fact, if otherwise relevant and worthy of being taken note of. 13. We come to case Sl.No.1. That is a case in which the detenu has been found guilty in a prosecution under the Kerala Sand Act. He was found guilty, convicted and sentenced to pay a fine. The sponsoring authority referred to the finding of guilt, conviction and sentence but did not, obviously (for unsatisfactory reasons) choose to place reliance on the same. That finding of guilt, conviction and sentence by a Court was certainly cognizable and sufficient by itself under Section 2(o)(i) to include the detenu as a known goonda. The mere fact that the detaining authority did not blindly swallow the report of the sponsoring authority but looked into the facts narrated in Ext.P2 very carefully and chose to accept what was acceptable is no reason for the court, to hold that the detaining authority has committed any error as to lead to invalidation of the order of detention. 14. The learned Government Pleader submits that in this case it is not actually necessary for this Court to rely on case Sl.No.1 for the purpose of inclusion of the detenu as a known goonda. The other 4 cases are absolutely sufficient for that purpose. There is a contention that copy of the judgment of conviction has not been made available to the detenu under Sec.7(2) of the KAAPA. The learned Government Pleader accepts this contention that copy of the judgment of conviction and sentence was not furnished under Sec.7(2). The other 4 cases are absolutely sufficient for that purpose. There is a contention that copy of the judgment of conviction has not been made available to the detenu under Sec.7(2) of the KAAPA. The learned Government Pleader accepts this contention that copy of the judgment of conviction and sentence was not furnished under Sec.7(2). In these circumstances, we agree with the learned counsel for the petitioner that case No.1 cannot at any rate be taken into consideration, as a case relevant under Sec.2(o)(i). Conviction in that case can be certainly reckoned as relevant, but for want of furnishing copy of the judgment, reliance placed on that case has to be faulted. In these circumstances, the challenge raised on ground no.2 succeeds for the simple reason that there is an omission to furnish copy of judgment in case Sl.No.1 under Section 7(2) of KAAPA. The challenge succeeds to that above limited extent only. 15. Thirdly the learned counsel for the petitioner argues that in Ext.P1 order of detention, the detenu is categorized as a known goonda under Sec.2(o)(i) and 2(o)(ii). We have already seen that the detenu cannot be included as a known goonda under Sec.2(o)(i) for the reason already mentioned under ground No.2. According to the learned counsel under Sec.2(o)(ii) also the detenu cannot be included as a known goonda as cases Sl.Nos.3, 4 and 5 are all cases initiated suo motto when the offences were detected by a police officer. The short contention of the learned counsel is that inclusion of the detenu as a known goonda under Section 2(o)(ii) cannot take place without the help of proviso of Sec.2(o). In as much as the proviso to Sec.2(o) has not been referred to Ext.P1 order, the whole exercise is invalid, contends the counsel. 16. We are unable to accept this contention. When reference has made to Sec.2(o)(i) and 2(o)(ii), we feel it totally unnecessary and puerile to insist on reference to the proviso particularly. When the detaining authority referred to Section 2(o)(i) and 2(o)(ii). We must reckon that the reference is to those 2 provisions inclusive of the proviso. The fact that the proviso to section 2(o) has not been referred specifically in Ext.P1 cannot deliver any advantage to the detenu. The challenge on the third ground must also in these circumstances fail. 17. When the detaining authority referred to Section 2(o)(i) and 2(o)(ii). We must reckon that the reference is to those 2 provisions inclusive of the proviso. The fact that the proviso to section 2(o) has not been referred specifically in Ext.P1 cannot deliver any advantage to the detenu. The challenge on the third ground must also in these circumstances fail. 17. Fourthly the learned counsel for the petitioner contends that cases 3, 4 and 5 cannot be reckoned as relevant under the proviso to Section 2(o) inasmuch as the witnesses cited in (i.e., the witnesses who attested) the 3 mahazars which led to initiation of proceedings against the detenu are not independent witnesses. 18. To the facts first. We went through the 3 cases. It is now accepted that in cases 3 and 5, there are two independent witnesses in addition to the police witnesses. Therefore, we are satisfied that following the decision in Vinija v. State of Kerala (2009 (3) KLT 110), both those cases can be taken into reckoning under Section 2 (o)(ii) with the help of the proviso to Sec.(o)(ii). There is no dispute on facts on this aspect. Both cases Sl.Nos.3 and 5 have been initiated suo motto by the police officer on the basis of a seizure effected under mahazars with two independent witnesses to attest those mahazars. It is true that case Sl.No.4 cannot be taken into account because there is only one non police witness who attested the mahasar and in view of that, applying the ratio in Vinija (supra), the said case has to be excluded. 19. Two cases, cases: Sl.Nos. 3 and 5 can therefore be taken into consideration under Sec.2(o)(ii) read with the proviso. Only 2 cases are sufficient to bring the detenu within the sweep of the expression known goonda under Sec.2(o). In these circumstances, the fact that the cases Sl.No.1 or 4 cannot be relied on to entertain the former/initial/threshold satisfaction does not in any manner affect such satisfaction entertained. 20. We may refer to case No.2 also. The learned Government Pleader points that that is certainly a case which will come under Sec.2(t) and 2(p). There is no serious dispute on that aspect. Under the Explanation to Sec.2(o), which we have already extracted, such a case can also be taken into account along with the other cases. 20. We may refer to case No.2 also. The learned Government Pleader points that that is certainly a case which will come under Sec.2(t) and 2(p). There is no serious dispute on that aspect. Under the Explanation to Sec.2(o), which we have already extracted, such a case can also be taken into account along with the other cases. We have already noted that two cases, i.e. cases, Sl.Nos.3 and 5 do bring the detenu within the sweep of known goonda. By virtue of the Explanation to Sec.2(o), case No.2, though it is a case that can be brought only under Sec.2(t) and 2(p) can also be taken into consideration along with the other cases under Sec.2(o). This question has been considered in Shailaja v. State of Kerala (2010 (3) KLT SN 29 (Case No.36). We do not in these circumstances find any merit in the fourth contention raised that the cases relied on by the detaining authority cannot validly bring the detenu within the sweep of section 2(o). Cases 3 and 5 themselves and taken along with Case No.2 being the detenu equally within S.2(o). 21. Fifthly the learned counsel for the petitioner argues that the live link or proximate nexus between the 5 cases referred above and the order of detention stands snapped. As we see from the tabular column, the 5 offences were committed on 18.11.2005, 4.1.2009, 23.10.2009, 28.1.2010 and 20.3.2010. The argument of the learned counsel is that the sponsoring authority had submitted the report under Section 3(1) only on 23.7.2010 and the detaining authority has passed the order of detention only 15.9.2010. The live link or proximate nexus between the events and the report of the sponsoring authority and between the report of the Sponsoring authority and the order of detention therefore stands snapped, contends the counsel. The impugned order of detention is hence liable to be invalidated on that ground, contends the learned counsel. 22. We have anxiously considered this contention. All the 5 cases have taken place within a period of 5 years prior to the order of detention. The law of preventive detention has been euphemistically referred to as the “jurisprudence of suspicion”. The detaining authority, an executive functionary is called upon to assess and evaluate the past conduct of a detenu and predicate, prophesise, anticipate or foresee his probable future conduct on the basis of such past conduct. The law of preventive detention has been euphemistically referred to as the “jurisprudence of suspicion”. The detaining authority, an executive functionary is called upon to assess and evaluate the past conduct of a detenu and predicate, prophesise, anticipate or foresee his probable future conduct on the basis of such past conduct. In the instant case, we not that the detenu has been indulging in contumacious conduct in regular frequency during the past 5 years as revealed from the tabular column referred above. The nexus cannot be held to be snapped merely because of the elapse on any particular number of days between the contumacious acts and the order of detention. That would be a myopic and puerile manner of evaluating the existence the live link on proximate nexus. We note that the detenu has been allegedly indulging in such contumacious acts from 18.11.2010 to 20.3.2010. 5 instances have been specifically referred to in the tabular column referred above. The last of such acts the fifth case) i.e., case no.5 was on 20.3.2010. We need consider only the gap of time between that act on 20.3.2010 and 15.9.2010, the date of order of detention, Ext.P1. 23. The learned Government Pleader points out that after the fifth crime was registered on 20.3.2010, investigation had to be conducted. The conclusion was drawn by the Investigating Officer in such investigation on 14.5.2010 and that is evident from the final report/charge sheet. There upon within a period of two months the local Circle Inspector had on 6.7.2010 reported to the Superintendent of Police the need to preventively detain the detenu and on receipt of the said report dated 6.7.2010 the sponsoring authority after following the legal procedure had submitted his report under Sec.3(1) on 23.7.2010. On receipt of the same the impugned order was passed by the detaining authority after careful evaluation of all circumstances on 15.9.2010. We do in these circumstances come to the conclusion that the gap of time between 20.3.2010 and 14.5.2010 or between 14.5.2010 and 6.7.2010 or between 6.7.2010 and 23.7.2010 or between 23.7.2010 and 15.9.2010 are not so great or yawning as to conclude that the live link/proximate nexus stands snapped. We do in these circumstances come to the conclusion that the gap of time between 20.3.2010 and 14.5.2010 or between 14.5.2010 and 6.7.2010 or between 6.7.2010 and 23.7.2010 or between 23.7.2010 and 15.9.2010 are not so great or yawning as to conclude that the live link/proximate nexus stands snapped. Considering the past conduct of the detenu during the previous 5 years prior to the order of detention, we are persuaded to agree that the live link is not snapped and the impugned order cannot be assailed on that ground. The gap of time between 20.3.2010 and 15.9.2010 is explained satisfactorily and such gap cannot be reckoned as sufficient to amount to snapping of the live link or proximate nexus. The challenge raised on the fifth ground also therefore fails. .24. Sixthly the learned counsel for the petitioner contends that the detaining authority has relied on data which have not been revealed or disclosed. Accordingly to the learned counsel for the petitioner a reading of Ext.P1 order of detention, does reveal that in addition to the 5 cases referred to in the tabular column, reliance has been placed on other undisclosed materials also. The learned counsel for the petitioner heavily relies on the decision of the Full bench in Bose v. Secretary to Government (2010 (2) KLT 325), to contend that it is impermissible under the law of preventive detention for a detaining authority to rely on undisclosed private information contrary to the stipulations of Section 7 of the KAAPA. The counsel contends that the impugned order of detention is hence liable to be quashed. 25. What is the other information (other undisclosed information) on which reliance has been placed by the detaining authority? The learned counsel for the petitioner was requested to advance detailed arguments. Our attention is drawn to the fact that the sponsoring authority does not expressly reply on any specific material other than the 5 cases. But it is contended that the detaining authority has relied on further materials. Called upon to explain this contention in detail, the learned counsel for the petitioner has taken us through Ext.P1; to be specific paragraph 2 of Ext.P1. We have carefully gone through para 2 of Ext.P1. Reference was made to 5 criminal cases which have already been given above in the tabular column. Called upon to explain this contention in detail, the learned counsel for the petitioner has taken us through Ext.P1; to be specific paragraph 2 of Ext.P1. We have carefully gone through para 2 of Ext.P1. Reference was made to 5 criminal cases which have already been given above in the tabular column. Thereafter it is stated that those cases constitute sufficient reason to include the detenu within the definition of known goonda under Section 2(o). Thereafter there is a statement, which we extract below. Malayalam A translation of the same can be attempted and that reads: “Further, we are satisfied that the detenu is indulging repeatedly in activities threatening society and in conduct which is likely to lead to destruction of the Ashtamudi lake and thereby cause threat to the environmental balance.” 26. Learned counsel contends that the above statement must definitely be with reference to some other materials which were available with the detaining authority. In short, the argument is that the expression ‘Malayalam’ must be read and understood as meaning the conclusions given thereafter is based on same further materials, though not disclosed. The learned Government pleader submits that this assumption is absolutely unjustified. The 5 cases referred above had led the detaining authority to two conclusions. The first was that the detenu can be included within the sweep of known goonda under Sec.2(o). The next was that he was constituting a threat to the society by indulging in anti social activities. The learned government pleader submits that the former objective satisfaction as well as the latter subject satisfaction are entertained by the detaining authority only on the basis of 5 cases shown above and it would be idle and puerile to assume that there were any further materials on which the detainingauthority had chosen to place reliance on. The expression Malayalam (translated in the context as ‘further’) only shows that the very same 5 cases had instilled the former objective satisfaction that the detenu is a known goonda and the latter subjective satisfaction that he causes a threat to the environmental balance by indulging in anti social activities. The expression “further” Malayalam in the context does not refer to any further materials but only to the further conclusion drawn on the same material. The expression “further” Malayalam in the context does not refer to any further materials but only to the further conclusion drawn on the same material. It is trite that the very same cases/events can instill/induce in the mind of the Detaining Authority the twin satisfactions under Sec.3 of the KAAPA – viz., the former/initial/threshold objective satisfaction that the detenu is a known goonda and the latter objective satisfaction that his detention is necessary to prevent him from committing anti social activities. 27. We are in complete agreement with the learned Government Pleader. We are unable to agree that the passage referred above can convey to us or lead us to the inference that materials other than those mentioned in the report of the sponsoring authority or other than the materials furnished to the detenu were relied on the detaining authority, to pass Ext.P1 detaining order. The challenge under 6th ground does also in these circumstances fails. 28. Seventhly, the learned counsel for the petitioner contends that both respondents 1 and 2 are not Malayalee Officers. According to the petitioner they are not conversant in Malayalam Counsel relies on this circumstance to contend that Ext.P1 and P2 could not have been prepared by the sponsoring and detaining authorities on their own. How could these officers not conversant in Malayalam be assumed to have prepared such documents like Ext.P1 and P2 Malayalam, queries the learned counsel for the petitioner. The learned counsel for the petitioner further argues that though this contention was specifically raised in has not been respondent specifically by respondents 1 or 2 their counter statement. 29. We are afraid this contention cannot also be accepted. While it is true that respondents 1 and 2 have not made specific denial of their alleged want of proficiency in the Malayalam language, they have asserted that the documents have been prepared with due care and after due application of mind. It is well known that officers from other states assigned to this state under Indian administration/Police Service have to pass a language test. We must assume in these circumstances that they definitely have at least working knowledge of the Malayalam language. It is well known that officers from other states assigned to this state under Indian administration/Police Service have to pass a language test. We must assume in these circumstances that they definitely have at least working knowledge of the Malayalam language. Even assuming that they had relied on the assistance and support of their subordinates to prepare Ext.P1 and P2 in the vernacular, we are of the opinion that the same cannot be reckoned as sufficient to indicate want of application of mind by respondents 1 and 2 in the preparation of Exts. P1 and 2. Even assuming that respondents 1 and 2 did not have proficiency in Malayalam language and they may have relied on the assistance of their subordinates (or other persons competent) to prepare Exts. P1 and P2, the same cannot according to us the reckoned as satisfactory indications of want of application of mind. The challenge under the 7th ground also therefore fails. 30. Lastly and eighthly the learned counsel for the petitioner argues that Ext.P1 order is vitiated by malafides. The crux of the contention is that the petitioner is an activist of the Indian National Congress. He claims to be an office bearer of INTUS. The elections to the local authorities were scheduled to take place on 23.10.2010. It is then that the impugned order Ext.P1 was passed on 15.9.2010. The detenu was taken into custody on 23.9.2010. The counsel argues that this is a classic case in which the powers of preventive detention have been invoked malafide for ulterior political ends. Counsel argues that in these circumstances the impugned order is liable to be set aside and vitiated by malafides. Malafides would vitiate even the most procedurally correct orders and in these circumstances the impugned order is liable to be interfered with on that sole ground. The learned counsel contends that in paragraph 1 and ground (E) in the writ petition, allegations of malafides have been specifically raised. They have met with no specific response from the first respondent/detaining authority. They have evoked only an unsatisfactory response from the second respondent in paragraph 9 of the counter statement filed by him. In these circumstances it is contended that the impugned order may be set aside on this, i.e., the last and the 8th ground. 31. They have met with no specific response from the first respondent/detaining authority. They have evoked only an unsatisfactory response from the second respondent in paragraph 9 of the counter statement filed by him. In these circumstances it is contended that the impugned order may be set aside on this, i.e., the last and the 8th ground. 31. It is by now trite that when the order is found to be otherwise proper and legal, the burden rests heavily on the shoulders of the party who alleges malafides to assail the order to prove the plea of malafides. The petitioner has an assertion that he is a functionary of the Indian national Congress. According to him he is an office bearer of INTUC. What functionary he is of the Indian National Congress is not revealed. What office he holds in the INTUC is also not revealed. There is no assertion or proof that the Indian National Congress or the INTUC had even claimed that the detention of the detenu was calculated to mar their prospects in the election. Vague assertions can only invite vague responses. We are certainly of the opinion that the onerous burden on a party alleging malafide to claim invalidation on the order of detention has not be satisfactorily discharged by the petitioner herein. The detenu is not shown to be an active worker of the Indian National Congress. Nor is the shown to be any officer bearer of the INTUC. The burden was heavily on the petitioner to prove this assertions in respect of the alleged detenu. We are in these circumstances satisfied that the challenge raised in the 8th ground must also fail. 32. We must say that we are not satisfied with the manner in which the allegations of malafides and allegation of want of proficiency in Malayalam language of the Detaining or Sponsoring authorities raised in the petition are responded to in the counter affidavits/statements. But all the same we are of the opinion that the challenge raised on grounds 7 and 8 do not commend themselves for acceptance notwithstanding the inadequacy in the response raised by respondents 1 and 2 in their counter statements/affidavits. 33. No other grounds are raised. 34. We are satisfied that the impugned order and the continued detention of the detenu do not warrant interference by involving our constitutional jurisdiction under Article 226. 35. 33. No other grounds are raised. 34. We are satisfied that the impugned order and the continued detention of the detenu do not warrant interference by involving our constitutional jurisdiction under Article 226. 35. In the result, this Writ petition is dismissed.