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2014 DIGILAW 664 (KER)

K. Rajitha v. State of Kerala, represented by Secretary to Government

2014-08-18

ANIL K.NARENDRAN, K.T.SANKARAN

body2014
Judgment : K.T Sankaran. J. 1. The questions which arise for consideration in this Writ Petition are: (i) Whether it is necessary to mention in the order under Section 10(4) confirming the order of detention under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act that the order of detention was read over to the detenu at the time of arrest? (ii) Whether it is necessary that there should be at least one case initiated by persons other than police officers to consider a person as a known goonda even if there are sufficient number of cases covered by Section 2(o), but all of which were initiated by police officers? 2. Santhosh, the husband of the petitioner, was detained under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act (hereinafter referred to as 'the KAAPA), pursuant to Exhibit P2 order of detention dated 29.3.2014. Santhosh was arrested on 1.4.2014. The order was approved under Section 3(3) of KAAPA on 9.4.2014. The order was confirmed under Section 10 (4) of the Act as per Exhibit P3 order dated 5.6.2014. 3. In Exhibit P2 order of detention, five cases registered under Section 20(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act against the detenu were taken into account for arriving at the satisfaction that he is a known goonda. At the time of arrest on 1.4.2014, admittedly the order of detention and the grounds of detention were served on the detenu. The case of the petitioner is that there was no proper compliance of Section 7(1) of the KAAPA. Section 7(1) says that 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. According to the petitioner, the order of detention was not read over to the detenu. This contention is denied in the counter affidavit. It is specifically contended that the order of detention was read over to the detenu at the time of arrest. The learned Additional Director General of Prosecution placed before us the files which would show that the detenu endorsed on the files that the order of detention was read over to him at the time of arrest. It is specifically contended that the order of detention was read over to the detenu at the time of arrest. The learned Additional Director General of Prosecution placed before us the files which would show that the detenu endorsed on the files that the order of detention was read over to him at the time of arrest. He has also signed and endorsed that he received the copies of the order of detention, grounds of detention and the documents relied upon in the grounds of detention. There is no ground to believe that the order of detention was not read over to the detenu at the time of his arrest. The official acts shall be deemed to have been performed in a proper and legal manner unless it is shown otherwise. 4. Sri. Vinod Madhavan, the learned counsel for the petitioner, submitted that the order of confirmation under Section 10(4) of KAAPA did not mention that the order of detention was read over to the detenu. There is no such legal requirement that the order of confirmation should specifically state so. Section 10(4) of the KAAPA provides that in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit. In the order of confirmation, the Government need not mention that all the steps which were legally required to be taken at the time of arrest and thereafter were taken. The order of confirmation is one which should be passed on receipt of the report of the Advisory Board. If the Advisory Board gives the opinion that there is no sufficient cause for detention, the order of detention shall be revoked forthwith. If the opinion of the Advisory Board is that there is sufficient cause for detention of the person concerned, the Government may confirm the order of detention and continue the detention of the person concerned. Even after the Advisory Board opines that there is sufficient ground for detention, the Government have the power to revoke the order of detention at any time under Section 13 of the Act. Even after the Advisory Board opines that there is sufficient ground for detention, the Government have the power to revoke the order of detention at any time under Section 13 of the Act. In an order of such a nature, as provided under Section 10(4) of the Act, the Government is not bound to narrate each and every step taken after passing the order of detention till the order of confirmation. An order of confirmation is not a diary of events that took place after passing the order of detention till the confirmation of the detention of the person concerned. It is the record of the Government having received the opinion of the Advisory Board and having decided to confirm the order based on the opinion of the Advisory Board. For the aforesaid reasons, we reject the contention raised by the petitioner in this regard. 5. Section 2(o) of the KAAPA defines the term "known goonda". For the sake of convenience, Section 2(o) is extracted below: "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 the 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." 6. The proviso to sub-clause (ii) of clause (o) of Section 2 is an exception to the requirement in sub-clause (ii) that the complaints should have been initiated by persons other than police officers. The proviso to sub-clause (ii) of clause (o) of Section 2 is an exception to the requirement in sub-clause (ii) that the complaints should have been initiated by persons other than police officers. Even if the police suo motu registers a case that can also be taken into account for arriving at the objective satisfaction that the detenu satisfies the term "known goonda", provided the report was filed by the police officer before a lawful authority consequent to 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. The seizure of any of the contraband mentioned in the proviso is an assurance that the case is not foisted by the police. The stipulation in sub-clause (ii) of clause (o) of Section (2) that the complaints must be those initiated by persons other than police officers is to ensure that the cases are not foisted against a particular person by the police officer only to see that the person concerned is termed as a known goonda and incarcerated under Section 3(1). That does not mean that even in serious cases of the nature mentioned in the proviso, a person other than a police officer should complain. In the nature of the offence involved in such cases, the police officer is entitled to or is rather bound to seize the contraband, register the case and deal with the accused according to law, for which the police officer cannot be expected to wait for an individual to complain. It is idle to expect an individual to complain in respect of an offence which does not directly affect him, unless the person concerned is a public spirited person or a person interested in the welfare of the society as a whole. Such serious cases as mentioned in the proviso should be dealt with utmost speed and the offender should be dealt with accordingly. In the proviso to subclause (ii) of clause (o) of Section 2, certain offences of serious nature which affect the society are included and if there is a seizure by the police officer and a report thereof, such offences can also be included for consideration though the report had resulted from an action initiated by a police officer suo motu. In the proviso to subclause (ii) of clause (o) of Section 2, certain offences of serious nature which affect the society are included and if there is a seizure by the police officer and a report thereof, such offences can also be included for consideration though the report had resulted from an action initiated by a police officer suo motu. The contention raised by the learned counsel for the petitioner is that the words "may be included for consideration" occurring in the proviso would mean that the cases of the nature referred to therein also can be taken into account, provided, there is at least one other case which was initiated at the instance of a person other than the police officer. We are not inclined to accept this contention. If this contention is accepted, it would mean that even if the person concerned is involved in several serious offences involving narcotic drugs or psychotropic substances, cases in respect of which were initiated at the instance of the police, he cannot be ordered to be detained under Section 3(1) of the KAAPA, if he is not involved in any other offence initiated by a person other than a police officer. The interpretation placed by the learned counsel for the petitioner, if accepted, it would lead to a situation where a person can cleverly avoid detention under the KAAPA. For example, a seasoned drug-offender as defined under Section 2(i) of the Act may guardedly indulge in his illegal activities without giving any room for complaint against him by any individual with respect to any offence and thus avoid a detention order being passed against him. The purpose of the proviso to sub-clause (ii) of clause (o) of Section 2 is not as contended by the learned counsel for the petitioner. The intended purpose is to avoid deliberate and calculated attempts to brand a person a "known goonda" by registering crimes falsely and detain him under the KAAPA. It is not the intention of the legislature that even if a person has committed hundreds of crimes involving narcotic drugs or psychotropic substances, he should not be ordered to be detained unless he is involved in any case which was initiated by persons other than police officers. Any such interpretation would defeat the very purpose of preventive detention of a known goonda. Any such interpretation would defeat the very purpose of preventive detention of a known goonda. Therefore, we reject the second contention raised by the learned counsel for the petitioner. For the aforesaid reasons, the Writ Petition is dismissed.