SUSEELA, W/O. JOSE v. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HOME AND VIGILANCE DEPARTMENT, GOVERNMENT SECRETARIAT
2018-10-23
ANNIE JOHN, K.SURENDRA MOHAN
body2018
DigiLaw.ai
JUDGMENT : Annie John, J. The petitioner herein is the mother of the detenu namely Sijo, aged 27 years, Karuvichamkuzhi Veedu, Padvaradu Desom, Priyadarsini Road, Kuttanalloor P.O., Thrissur, who was sent to Central Prison, Viyur, from where he has been transferred to the Central Prison, Kannur, where he is detained, pursuant to Ext.P1 order of detention passed by the second respondent. 2. According to the petitioner, the records furnished along with the detention order were not fully legible and the petitioner's son is illegally detained without any reasonable cause and without being permitted to resort to his remedies under Kerala Anti Social Activities (Prevention) Act, 2007 ('KAAPA' for short). Even though the petitioner has submitted Exts.P2 and P3 representations before respondents 1 and 4 challenging the detention and praying for the release of her son, no orders have been passed so far. Hence this writ petition seeking the following reliefs : 1. Call for the records leading to Ext.P1 and quash them by the issuance of a writ of certiorari or any other appropriate writ, order or direction. 2. Issue a writ of habeas corpus commanding the respondents to produce the body of detenu viz. Sijo aged 27 years, Karuvichamkuzhi Veedu, Padvaradu Desom, Priyadarsini Road, Kuttanalloor P.O., Thrissur, the son of the petitioner who is illegally detained in Central Prison, Kannur before this Hon'ble Court and set him at liberty forthwith. 3. The learned counsel for the petitioner submits that Ext.P1 order is illegal, unjust and arbitrary and the same is not issued in accordance with the provisions of KAAPA. It is also contended that copies of the relevant documents were not supplied to the detenue and he was earlier booked two times under KAAPA and detained for a period of six months and one year respectively. There is a delay of three days in executing Ext.P1 order and therefore, the very object and purpose of issuance of Ext.P1 was defeated. The last crime registered against the detenue was on 08.04.2017 under Section 308 IPC and the said case was registered with an intention to book the detenue under the KAAPA. The recitals in the record would show that no ingredients to attract the offence were made out.
The last crime registered against the detenue was on 08.04.2017 under Section 308 IPC and the said case was registered with an intention to book the detenue under the KAAPA. The recitals in the record would show that no ingredients to attract the offence were made out. The first case reported after the execution of the last detention order vide C1 65854/2015 dated 30.11.2015 was on 08.04.2017 under Section 308 r/w Section 34 IPC in Crime No. 476 of 2017 of Pudukkad Police Station. The petitioner was arrested in connection with the above crime on 01.05.2017 and he was granted bail on 07.07.2017. While he was in custody, he was also implicated as third accused in Crime No. 220 of 2017 of Varantharappally Police Station for offences punishable under Sections 341, 323, 324 and 308 r/w Section 34 IPC. Even though he was granted bail on 07.07.2017, because of the implication in the aforesaid crime, he was released only on 12.07.2017. It is contended that Crime No. 220 of 2017 of Varantharappilly Police Station was registered on the allegation of dispute between neighbours and therefore, the implication of the petitioner under proviso (ii) of Section 2(p) of KAAPA cannot be sustained. 4. The learned counsel for the petitioner contends that Ext.P1 order is vitiated by errors apparent on the face of the record and there was no application of mind to the relevant materials before issuing the order. Ext.P1 order of detention was issued only on 22.08.2017 i.e, more than 4 1/2 months after the registration of the last crime case. There is no explanation for the delay and the delay for the issuance of the order itself is sufficient ground to hold that there was no justification for the issuance of an order of preventive detention. Ext.P1 order was executed only on 25.08.2017 and there was a delay of three days, which was also not explained. Both the crimes will not come within the scope of Sections 2(p)(iii) and 3(1) r/w Section 13(2)(i) of the KAAPA warranting issuance of an order of detention. No preventive measures as envisaged in Chapter VIII of the Code of Criminal Procedure, 1973 were initiated against the detenu before passing an order depriving him of a right guaranteed to a citizen under Part III of the Constitution of India.
No preventive measures as envisaged in Chapter VIII of the Code of Criminal Procedure, 1973 were initiated against the detenu before passing an order depriving him of a right guaranteed to a citizen under Part III of the Constitution of India. The detaining authority has not complied with the provisions of Section 15 of the KAAPA before issuing Ext.P1 order. 5. Respondents 1 to 3 filed separate counter affidavits. The first respondent in his counter affidavit stated that the District Collector and District Magistrate, Thrissur as per his letter dated 22.08.2017 had informed the Government that an order of detention dated 22.08.2017 against the petitioner was issued under Section 3(1) r/w Section 13(2)(i) of the KAAPA Act. The order of detention was executed on 25.08.2017. It was found that the threshold objective satisfaction to classify the detenu as a 'known rowdy' under Section 2(p)(iii) of the Act and the subjective satisfaction for drawing the inference that the detenu be detained immediately for public safety, peace and tranquility of the society have been arrived at by the detaining authority. All the procedural formalities as laid down in the KAAPA were complied with and no constitutional safeguards have been denied. The Government has issued the order of approval u/s 3(3) of the Act within the time frame. Subsequently, the case was placed before the Advisory Board u/s 9 of the Act and the Advisory Board had reported that there was sufficient cause for the detention of the person. Hence the detention order was confirmed u/s 10(4) of the Act vide G.O.(Rt) No. 2640/2017/Home dated 10.10.2017. According to him, all procedural formalities were complied with and there is no ground to interfere with the orders of the District Magistrate, Thrissur. In fact, the detenu has committed the crime immediately after the last detention. Hence, he is virtually a hard core criminal and he is detained for the protection of the entire society. 6. The second respondent in his counter affidavit stated that there were sufficient reasons to find the detenu as a habitual offender who has been indulging in activities in such a manner as to cause severe threat to the public order, leading to a feeling of insecurity and fear among the people of the locality.
6. The second respondent in his counter affidavit stated that there were sufficient reasons to find the detenu as a habitual offender who has been indulging in activities in such a manner as to cause severe threat to the public order, leading to a feeling of insecurity and fear among the people of the locality. The copies of detention order, grounds for detention and relevant documents were supplied to the detenu at the time of execution of the detention order on 25.08.2017. The detenu was earlier booked under KAAPA for two times for a period of six months and one year respectively and the orders of detention, grounds for detention and the Government Orders for approval and confirmation were also enclosed with the fresh detention order and was supplied to the detenu at the time of execution of detention order on 25.08.2017. The copies of all relevant documents were served to detenu and the same were acknowledged by the detenu at the time of arrest. There was no delay in executing the detention order. In fact, all opportunities were given to the detenu before he was transferred to the Central Jail. In fact, he is a hard core criminal. Even after last detention, he was involved in two more crimes, which shows that he is not a law abiding person, but a wrongdoer. 7. The third respondent also filed a counter affidavit narrating the same facts as stated by respondents 1 and 2. According to him, he is a known goonda In fact, all the procedural formalities were complied with before he was detained in the prison. The details of the criminal cases are also mentioned in his counter. According to him, the details of the detention was completely explained in the detention order by the detaining authority. It is also stated that the ordinary laws are too inadequate to deal with him and there were no ways other than detaining the detenu under the relevant provisions of the KAAPA. In order to prevent him from pandering anti-social activities, they invoked KAAPA against the detenu and detained two times for a period of six months and one year respectively vide detention order Nos. C1-55735/2013 dated 05.10.2013 and C1-65854/2015 dated 30.11.2015. Even after taking preventive measures in the above manner, the detenu is still performing his anti-social activities in a continuous manner.
C1-55735/2013 dated 05.10.2013 and C1-65854/2015 dated 30.11.2015. Even after taking preventive measures in the above manner, the detenu is still performing his anti-social activities in a continuous manner. So the current detention order issued against him is to prevent and curtail his anti-social activities. 8. This petition is filed against the preventive detention under Section 3(1) and externment order under Section 13(2)(1) of the KAAPA. The detenue was declared as a 'known Goonda' as per Section 2(o) of the Act and he was under the preventive arrest as per the order of the Advisory Board In this connection, it is very pertinent to note the definition of 'known goonda' as defined under Section 2(o) of the Act and it reads thus : "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.
A "known rowdy" is also defined in Section 2(p) of the Act, which reads thus : (p) ''known rowdy'' means any person, who had been, by reason of acts done within the previous seven years as calculated from the date of the order imposing any restriction or detention under this Act,- (i) made guilty, by a competent Court at least once for an offence of the nature under item (i) of clause (t) of section 2 or any offence notified as such under the said clause; or (ii) made guilty, by a competent court at least twice for any offence of the nature mentioned under item (ii) of clause (t) of section 2 or any offence notified as such under the said clause; or (iii).
found, on investigation or enquiry by a competent police officer or other authority, on complaints initiated by persons other than police officers, in three separate instances not forming part of the same transaction to have committed any offence mentioned in clause (t) of section 2: Provided that any offence committed by a person,- (i) by virtue of his involvement as a member of the family or a close relative of the family, in an incident which took place by reason of a family dispute or quarrel involving family members of close relatives on either side; or (ii) by virtue of his involvement as a neighbour or as a close relative of the neighbour in an incident which occurred due to a dispute between immediate neighbours; or (iii) by virtue of his involvement as an employee of any establishment in an incident which occurred in connection with a dispute between himself and the establishment with regard to the conditions of service; or (iv) as a member of the student community in a recognised educational institution, by virtue of his involvement, merely by his presence but without any overt act constituting the offence mentioned in clause (t) of section 2 without being involved in any criminal conspiracy facilitating the same, in an incident which occurred due to the general involvement of students of the institution in that particular incident; or (v) as a member of a recognised political party, by virtue of his involvement merely by his presence, but without any overt act constituting the offence mentioned in clause (t) of section 2 without being involved in any criminal conspiracy facilitating the same, in an incident which occurred due to the general involvement of the workers of that party in an agitation or protest or programme organised by the party with prior information given to the police officer or magistrate having jurisdiction; or (vi) by virtue of his involvement in a criminal act committed by him before he had attained the age of eighteen years, shall be omitted from the computation of the number of offences taken into account for deciding whether a person is a known rowdy; The expression 'found on investigation or enquiry by a competent police officer or other authority' used in Section 2(o)(ii) is used in the ordinary parlance and not in terms of Cr.P.C. Hence it cannot be misunderstood as analogus to the level for arriving at the guilt of the accused for imposing any punishment on proving the guilt.
9. KAAPA is an enactment providing for detention like several other preventive detention statutes, such as Conservation of Foreign Exchange and Prevention of Smuggling Act (COFEPOSA), National Security Act (NSA), Maintenance of Internal Security Act (MISA) etc. The actual preventive detention is a matter which is not based on the guilt of the detenu, but on the basis of a strong suspicion to have indulged in objectionable activities, which seriously affect the society/nation at large. So, we may consider the difference between the 'punitive detention' and 'preventive detention'. As regards the 'punitive detention', there must be an imposition of punishment for the offence already committed by the accused persons. But in the case of 'preventive detention', it is only to prevent any such act which is recorded as possible by virtue of the past conduct of the detenu. So, when a detention order is passed against the detenu, the Executive Magistrate will take into consideration the number of mischiefs committed by the detenu against the public at large. If the activity of the detenu is more injurious to the society or his act will adversely affect the public order, that will be considered while passing the detention order by the authority. By way of 'punitive detention', the undesirable consequences which have already been resulted by virtue of commission of offence cannot be ruled out and the sentence is only to punish the guilt and to send a message as to the consequences to the public at large. As regards the 'preventive detention', the probable damage to be caused to the society is of much more magnitude so as to affect the public order and therefore, the law makers have consciously decided to take preventive measures than curing it. It is true that detaining an accused by passing an order of preventive detention will definitely curtail the fundamental right as provided under Article 21 of the Constitution of India. But this is an exception to the provision as contemplated under Article 21 of the Constitution. The framers of the Constitution have provided sufficient safeguards by way of Article 22(5) to have proper measures and procedures to be complied with in the matters of 'preventive detention'. 10. KAAPA was envisaged for the effective prevention and control of certain anti social activities by taking the detenu under custody as 'preventive detention'.
The framers of the Constitution have provided sufficient safeguards by way of Article 22(5) to have proper measures and procedures to be complied with in the matters of 'preventive detention'. 10. KAAPA was envisaged for the effective prevention and control of certain anti social activities by taking the detenu under custody as 'preventive detention'. While considering the matters which needs 'preventive detention', there may not be a charge against the accused, but there must be a proof to the effect that the accused had continuously committed offences causing disturbance to the public and that his presence in the society is dangerous and will affect the entire public at large. This is the only criteria to be considered by the detaining authority while passing an order of 'preventive detention'. if the detenu is able to prove that the detaining authority has not complied with the procedures as per the provisions of the KAAPA, definitely they can challenge it by invoking Article 226 of the Constitution of India. The important aspect in this case is that every citizen has got the fundamental right to have freedom to live and speak and has the liberty to protect his right as per Article 21 of the Constitution of India. In fact, this is a curtailment of the free life of the person. He will be confined behind the bars of the jail for a considerable period of time as per the 'preventive detention' order passed by the detaining authority. 11. Here, the petitioner's counsel argued that the cases considered by the detaining authority cannot be treated as a ground to order preventive detention of the detenu. On the strength of Section 3 (1) r/w Section 13(2)(1) of the said Act, the preventive detention was ordered against the detenu stating that he is a 'known rowdy' of that locality, u/s 2(p)(iii) of the Act. Section 3 of the Act deals with the power to make orders for detaining 'known goondas' and 'known rowdies' and it reads thus : "3.
Section 3 of the Act deals with the power to make orders for detaining 'known goondas' and 'known rowdies' and it reads thus : "3. Power to make orders for detaining Known Goondas and Known Rowdies.--(1) The Government or an officer authorised under sub-section (2), may, if satisfied on information received from a Police Officer not below the rank of a Superintendent of Police with regard to the activities of any Known Goonda or Known Rowdy, that, with a view to prevent such person from committing any anti-social activity within the State of Kerala in any manner, it is necessary so to do, make an order directing that such person be detained. (2) If having regard to the circumstances prevailing, or likely to prevail in any area, the Government, if satisfied that it is necessary so to do, may, by order in writing, direct that during such period as may be specified in the said order, the District Magistrate having jurisdiction may exercise the powers under sub-section (1) in respect of such persons residing within his jurisdiction or in respect of such persons not so resident who have been indulging in or about to indulge in or abet any anti-social activities within such jurisdiction. (3) When any order is made under this section by the authorised officer under sub-section (2), he shall forthwith report the fact to the Government and the Director General of Police, Kerala, together with a copy of the order and supporting records which, in his opinion, have a bearing on the matter and no such order shall remain in force for more than 12 days, excluding public holidays, from the date of detention of such Known Goonda or Known Rowdy, unless, in the meantime, it has been approved by the Government or by the Secretary, Home Department if generally so authorised in this regard by the Government." 12. Section 15 of the Act deals with the power to make orders restricting the movements of certain persons and it reads thus : "15.
Section 15 of the Act deals with the power to make orders restricting the movements of certain persons and it reads thus : "15. Power to make orders restricting the movements of certain persons.--(1) The District Magistrate or a police officer of and above the rank of Deputy Inspector General having jurisdiction, if satisfied on information received in respect of a known goonda or known rowdy, after having given him an opportunity to be heard by notice served on him or pasted at his ordinary place of residence, if any in Kerala, that he is indulging in or about to indulge in or likely to indulge in anti-social activities and with a view to prevent him from so acting at any place within the jurisdiction of such magistrate or officer, may make an order,-- (a) directing that, except in so far as he may be permitted by the conditions made in the order, he shall not visit any such area or place as may be specified in the order, for a period not exceeding one year; (b) requiring him to report his movements within the State, in such manner, at such times, and to such authority or person as may be specified in the order, for a period not exceeding one year : Provided that a copy of the order along with the grounds for issuing such order shall be communicated to the Government through the Director General of Police. (2) Any person aggrieved by an order issued under sub-section (1) may represent before the Advisory Board within fifteen days of the date of service of the order and the Board on receipt of such representation, consider the same, and after enquiring into the facts and circumstances in such manner as it may deem fit, shall within thirty days of the date of receipt of such representation, annul, amend or confirm the order, either in part or in full. (3) The Government or the authority which issued the order under sub-section (1) may, on its own motion, annul or amend the order at any time either in part or in full. (4) Any person violating an order under sub-section (1) shall be liable to be punished with imprisonment for a term which may extend to three years.
(3) The Government or the authority which issued the order under sub-section (1) may, on its own motion, annul or amend the order at any time either in part or in full. (4) Any person violating an order under sub-section (1) shall be liable to be punished with imprisonment for a term which may extend to three years. (5) If an order issued under sub-section (1) above has ceased to have effect for any reason, a new order under the said sub-section may be issued against the same person, if he continues to be a person falling within the definition of known rowdy or known goonda as given in section 2 (o) or section 2 (p) and if, after such cessation, he has again involved, in an offence of the nature described in section 2(o) or section 2(p) at least in one instance." 13. The learned counsel for the petitioner has argued that the petitioner has not been involved in any cases as stated by the respondents and some of the cases are not to be considered for ordering preventive detention of the detenu. He has also argued that as per Section 7 of Act, the authorities are bound to furnish the grounds of detention to the detenu; but the Advisory Board has not given any materials specifying the instances of offences committed by the detenu. In this connection, it is profitable to extract Sub-sections (1) and (2) of Section 7 of the Act, which reads thus : "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.
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) The grounds of detention, specifying the instances of offences, with copies of relevant documents, as far as practicable, on the basis of which he is considered as a "known goonda" or "known rowdy" and giving such materials relating to his activities on the basis of which his detention has been found necessary, shall be furnished to him as soon as possible, nevertheless, in any case, within five days of detention and he shall also be informed in writing, under acknowledgement, of his right to represent to the Government and before the Advisory Board against his detention : Provided that nothing in this Section shall require any authority to disclose to the detained person any fact, the disclosure of which will reveal the identity of any confidential source or the disclosure of which will be against the interests of internal security or national security" 14. In a case where the conviction order is passed under Section 3 of KAAPA, the maximum period of detention under the Act shall not exceed six months from the date of detention as provided under Section 12 of the Act. Section 7 of the Act provides for the procedure to be followed when a person is arrested in pursuance of a detention order. As per Sub-section (3) of Section 7 of the Act, the Superintendent of the Jail where such person is detained, shall afford him a reasonable opportunity to consult a lawyer and a reasonable assistance in making a representation against the detention order to the Government or to the Advisory Board. As per Section 9 of the Act, the Government shall, within three weeks from the date of detention of a person, place before the Advisory Board, the grounds on which the order has been made and the representation, if any, made by the person affected. The Advisory Board shall give its report within nine weeks from the date of detention of the person concerned. Ultimately, the Government has to confirm the detention order in every case, where the Advisory Board has reported that there is sufficient cause for the detention of the person concerned.
The Advisory Board shall give its report within nine weeks from the date of detention of the person concerned. Ultimately, the Government has to confirm the detention order in every case, where the Advisory Board has reported that there is sufficient cause for the detention of the person concerned. Otherwise, if the Government finds that there is no sufficient cause for the detention of the person concerned, the Government shall have the opportunity of revoking the detention order and release him forthwith. It is important to note that the Government is the final authority to revoke or modify the detention order at any time as provided under Section 13 of the Act. It is also a procedure as contemplated under Section 15(1) that an opportunity of being heard shall be provided to the person concerned after giving him sufficient notice. Any person aggrieved by an order of detention under sub-Section (1) of Section 15 may represent before the Advisory Board within fifteen days of the date of service of the order. On receipt of such representation, the Advisory Board shall, within thirty days of the date of receipt of such representation, annul, amend or confirm the order, either in part or in full. Any person violating an order under sub-Section (1) of Section 15 of the Act shall be liable to be punished with imprisonment for a term which may extend to three years, as per Section 15(4) of KAAPA. Section 7 of the Act does not apply in the case of an order of externment passed under Section 15 of KAAPA. So the right of hearing before passing an order is not available to the person concerned, who is sought to be detained under Section 3 of the Act. The procedural safeguards as provided in Section 7 of the Act are in tune with the provisions under Article 22 of the Constitution of India. Clauses (4), (5), (6) and (7) of Article 22 deal with cases of preventive detention. 15. In Susi v. State of Kerala and others ( 2011 (1) KLT 760 ), it is held that Anti social activities is governed by Article 21 of the Constitution of India and the application of mind to the fact of the initiation, pendency, culmination or actual detention under Chapter VIII of the Cr.P.C. by the detaining authority is essential before ordering detention under S.3 of the KAAPA.
It is also held that one wholesome thread that runs through the entire fabric of the constitution is its adherence to the cherished values of personal freedom and liberty. The rights of the individual for personal freedom and liberty have certainly got to be harmonised with the larger interests of the security of the country and public order. The constitution permits and tolerates preventive detention in the Indian context as an exceptional remedy in the interests of security of the country and maintenance of public order. In paragraph 10 of the said decision, it is held thus : "10. It has always been held that the subjective satisfaction of the detaining authority is not justiciable. Adequacy of material to induce the subjective satisfaction cannot be gone into by the courts. That is the satisfaction to be entertained by the executive authority. In as much as the subjective satisfaction is not justiciable, the jurisdiction of the superior constitutional courts in judicial review is extremely limited. But this is not to say that courts exercising the power of judicial review have no effective function to perform. It has to be insisted that the detaining authority has considered all relevant aspects. It can be insisted that the detaining authority should not rely on any extraneous circumstance. A detenu preventively detained can insist that mind of the detaining authority must be applied in a real and effective manner before detention is ordered. In as much as the satisfaction of the detaining authority is not justiciable, courts in judicial review can always insist that such total, complete and effective application of mind has preceded the passing of the order of preventive detention. It is here that the real jurisdiction of the constitutional courts to review an administrative decision to preventively detain an individual lies. Courts have got the duty to ensure that all relevant materials are placed before the detaining authority; that the detaining authority applies its mind to all such relevant inputs and then entertains the subjective satisfaction that the detenu deserves to be preventively detained. If there is any failure to advert to relevant circumstances and to apply the mind of the detaining authority to such relevant circumstances, the order of detention vitiates and is liable to be invalidated in judicial review." 16.
If there is any failure to advert to relevant circumstances and to apply the mind of the detaining authority to such relevant circumstances, the order of detention vitiates and is liable to be invalidated in judicial review." 16. The main ground enunciated before us is that Ext.P1 detention order was issued only on 22.08.2017 and the last crime was registered against the detenu on 08.04.2017 i.e., the detention order was passed merely 4 1/2 months after the registration of the last crime. Therefore, it shows that the detention order had no proximity to the alleged criminal act of the detenu and no proper explanation was given by the detaining authority for the delay. 17. In Rahila Nazeer v. State of Kerala and others [ 2016 (3) KHC 189 ], it is held that the period of detention under Section 3 cannot be a determining factor to assess whether there is inordinate and unexplained delay. If the delay is satisfactorily explained, it cannot be held that the live link is snapped. The factual situation in each case makes it relevant the question whether the delay is inordinate so as to vitiate the order of detention. The reasons may be varied as to why the order of detention is passed after several months of the date of the last prejudicial activity. If the person concerned is in judicial custody and there is no likelihood of his being released shortly, the detaining authority may stay its hands for a short while and then think of passing an order of detention subsequent to the release of the person concerned. It is not necessary that the person concerned should commit another crime after the expiry of his judicial custody in order to enable the detaining authority to pass an order of detention. In short, the facts situation in each case is relevant in considering the question as to whether the delay is inordinate so as to vitiate the order of detention on the ground of lack of live nexus between the prejudicial activity and the order of detention. 18. In this case, the second respondent has filed a counter affidavit, in which it is stated that the period between the date of order and the date of execution was only 3 days. According to him, the three days' delay was the time taken for the completion of the initial formalities.
18. In this case, the second respondent has filed a counter affidavit, in which it is stated that the period between the date of order and the date of execution was only 3 days. According to him, the three days' delay was the time taken for the completion of the initial formalities. The delay of three days can only be considered as reasonable. 19. The detaining authority had taken into account two instances of anti-social activities and the prejudicial acts attributed to the detenu for arriving at the subjective satisfaction that the detention of the detenu is necessary to prevent him from indulging in anti-social activities. The two cases in which the detenu was involved and were considered for objective satisfaction are as follows : 20. The last crime was registered as Crime No. 476 of 2017 for an offence under Section 308 r/w Section 34 IPC of Pudukkad Police Station which occurred on 08.04.2017 and the same was reported on 10.04.2017. According to him, this case was not registered with an intention to put the detenu under KAAPA and the same was registered based on the statement of one Mr. Suresh, aged 42 years, who was assaulted, due to the previous animosity, with an iron rod by the detenu and the co-accused one Mr. Nijo and caused grievous injury. The complainant was hospitalised in Jubilee Mission Hospital, Thrissur. The victim in that crime had given a statement and on the strength of his statement, the case was registered against the detenu and the co-accused and charge sheeted on 19.06.2017. 21. Crime No. 220 of 2017 of Varantharappally Police Station filed under Sections 341, 323, 324 and 308 r/w Section 34 IPC occurred on 07.04.2017 and the same was reported on 08.04.2017. It was registered on the strength of a statement of Mr. Rappai, aged 63 years, who has taken treatment in Government Hospital, Pudukkad. He was attacked due to previous animosity by the detenu and three other accused persons. The aforesaid offences come under Chapter XVI of IPC as also under the category of 2(t)(kk) of KAAPA.
It was registered on the strength of a statement of Mr. Rappai, aged 63 years, who has taken treatment in Government Hospital, Pudukkad. He was attacked due to previous animosity by the detenu and three other accused persons. The aforesaid offences come under Chapter XVI of IPC as also under the category of 2(t)(kk) of KAAPA. It is also stated that even after his release on 04.12.2016, after the expiry of last detention for one year, he again committed and got involved in the aforesaid two crimes within a short span of four months, and that after invoking KAAPA two times and after the detention for six months and one year respectively, the detenu is still performing his anti-social activities on a continuous manner and therefore, he is a hard core criminal. 22. It is argued by the learned counsel for the petitioner that the detenu is entitled to the protection of proviso (ii) to Section 2(p) of the KAAPA since Crime No. 220 of 2017 of Varantharappally Police Station was registered on the allegation of dispute between neighbours, which cannot be taken up for consideration for implicating a person under the proviso (ii) of Section (p) of KAAPA. As per proviso (ii) to Section 2(p) of KAAPA, any offence committed by a person by virtue of his involvement as a neighbour or as a close relative of the neighbour in an incident which occurred due to a dispute between immediate neighbours shall be omitted from the computation of the number of offences taken into account for deciding whether a person is a 'known rowdy'. Further Crime No. 476 of 2017 of Pudukkad Police Station is only an accident case. Therefore, both the crimes cited above cannot be considered for detaining the detenu under preventive detention. 23. The learned Public Prosecutor has objected to the said argument stating that the de facto complainant in the aforesaid crime is not an immediate neighbour of the detenu. He has again argued that there is nothing to indicate that the said incident which is referred to in the aforesaid crime, was between neighbours or consequent to any dispute between immediate neighbours. Both the cases taken for consideration by the detaining authority will not get protection by invoking the proviso (ii) to Section 2(p) of KAAPA. 24.
He has again argued that there is nothing to indicate that the said incident which is referred to in the aforesaid crime, was between neighbours or consequent to any dispute between immediate neighbours. Both the cases taken for consideration by the detaining authority will not get protection by invoking the proviso (ii) to Section 2(p) of KAAPA. 24. It was argued by the learned Public Prosecutor that the detenu was booked for offences under Sections 308, 323, 324 and 341 IPC which may invite a punishment of imprisonment for a maximum period of three years. Offences in both the cases are under the Indian Penal Code falling within the scope of Chapter XVI referred to in Section 2(t) of the Act. There are offences in each case punishable with imprisonment for a term of more than one year and hence it comes under the purview of Section 2(p)(iii) of the Act. The order of detention was issued in strict compliance with the provisions under Sections 3(1) and 13(2)(i) of KAAPA. Therefore, the argument advanced by the learned counsel for the petitioner is without any merit. We do not find any ground to omit those two crimes from the computation of the number of offences to decide whether the detenu is a 'known rowdy'. 25. Another ground of challenge is that the detenu is not a person who comes within the scope of Sections 2(p)(iii) and 3(1) r/w Section 13(2)(i) of KAAPA to warrant the issuance of an order of detention. It was also argued that the District Magistrate had furnished the detenu with the reasons for detention before issuing the order and the same has been specifically indicated in the order. The detenu has been served with the legible copies of the detention order and the grounds. He has also been informed of his right to get legal assistance by the Superintendent of Central Prison at the time of admission. Therefore, the petitioner's arguments that the detenu has not been permitted to resort to legal remedies under the KAAPA is baseless. 26. It was argued by the learned Public Prosecutor that the detenu was earlier detained two times for the period from 07.10.2013 to 06.04.2014 and from 05.12.2015 to 04.12.2016 for six months and one year respectively. The second detention order was challenged before this Court by filing W.P.(Crl.) No. 226 of 2016.
26. It was argued by the learned Public Prosecutor that the detenu was earlier detained two times for the period from 07.10.2013 to 06.04.2014 and from 05.12.2015 to 04.12.2016 for six months and one year respectively. The second detention order was challenged before this Court by filing W.P.(Crl.) No. 226 of 2016. In that case, the detenu has taken a stand that he was not served with the order of approval granted by the Government under Section 3(3) of the KAAPA. This Court, as per order dated 18.08.2016, dismissed the writ petition. In both cases, the detenu has completed the term of detention and now he has raised a contention that he was not served with the records. It is true that non-supply of the records will vitiate the detention order. Section 7(2) provides for giving of grounds of detention along with copies of relevant records as far as practicable. The expression 'giving such materials' means supplying necessary information, which is distinct and different from supplying copies of documents. If relevant information has been given in the grounds of detention, it would constitute sufficient materials relating to the activities of the person concerned on the basis of which the detention was found necessary. It is not contemplated under Section 7(2) of the KAAPA that it would be a sufficient requirement to supply copies of the documents with respect to the arriving at the conclusion on this aspect. 27. The learned Public Prosecutor further argued on the strength of the counter affidavit filed by the first respondent that the Constitution has also provided certain safeguards (guaranteed rights), such as Review by the Advisory Board, Communication of the grounds for detention to the detenu and the detenu's right of representation etc. All constitutional safeguards with regard to preventive detention were complied with in the case of the detenu. As stipulated in Section 7(1) of KAAPA, the order of detention was read over to the detenu and a copy of the order was given to him at the time of execution of the order and he has certified this under his own signature. The endorsement by the detenu on copies of different documents, such as order of detention, grounds for detention, memo for executing the detention order, jail admission authorisation for the custody of the detenu, report of the sponsoring authority, FIRs, final reports, linking evidences etc.
The endorsement by the detenu on copies of different documents, such as order of detention, grounds for detention, memo for executing the detention order, jail admission authorisation for the custody of the detenu, report of the sponsoring authority, FIRs, final reports, linking evidences etc. are evidences to prove the compliance of the Constitutional safeguards and statutory requirements by the authorities concerned. On a perusal of the records submitted by the learned Public Prosecutor, we find that the detenu has received the copy of the jail admission order, memo of execution of order of detention and the order of the District Magistrate. At the end of the order, the detenu has acknowledged receipt of the aforesaid documents and same reads as follows : “xxx” Therefore, it is proved by the respondent that the detenue has been properly supplied with the vital documents and he has accepted it as evidenced from his endorsement in the last page of the detention order. 28. The learned counsel for the petitioner has further argued that the detention order was passed without applying mind to the relevant materials. There is no delay in initiating the action under the Act. The detention order and the final order has been passed by the Government within a short span of time. There is no evidence to prove that the live link between the detention order and the final order has been snapped. In fact, the petitioner's request vide Ext.P2 was declined with a real and proper consideration of his representation by the Government and the fate of representation was also communicated to the petitioner. It was further argued by the learned counsel for the petitioner that the representation submitted by the petitioner ought to have been disposed of expeditiously. Ext.P2 representation dated 29.08.2017 was received by the first respondent on 13.09.2017 and it was disposed of within 6 working days from the date of receipt of the same by the Government. 29. It was argued by the Public Prosecutor that the grounds mentioned in Ext.P2 were rejected after a real and proper consideration of the representation by the Government and the result of the representation was communicated to the petitioner as per letter No. Home-SSA1/74/2017-Home dated 20.09.2017. Further, Ext.P1 was in Malayalam, the mother tongue of the detenu and it was read over and served to the detenu and he acknowledged the same with his own signature. 30.
Further, Ext.P1 was in Malayalam, the mother tongue of the detenu and it was read over and served to the detenu and he acknowledged the same with his own signature. 30. The learned Public Prosecutor has argued that the detenu had earlier undergone preventive detention twice under KAAPA in pursuance of orders of detention passed by the District Magistrate, Thrissur. The activities of the detenu have caused insecurity and fear in the minds of people. The details of criminal acts committed by the detenu would amply prove that the acts committed by him, were not cases merely affecting law and order but in fact threats to public order justifying action under the Act. By way of his involvement in two grievous criminal acts after his release from the preventive detention, he has proved that ordinary provisions of law are thoroughly ineffective in his case. A rowdy history sheet was opened against the detenu in the Ollur Police Station. However, his criminal activities could not be curbed. All these facts were deliberated in the detention order and the grounds for detention. The crime records of the detenu would therefore reveal that he is not a person who could be controlled by the ordinary provisions of law. Therefore, the detenu was kept under preventive detention invoking the provisions of the KAAPA. 31. The learned Public Prosecutor has pointed out Section 13 of the KAAPA, which stipulates that a detention order may, at any time, be revoked or modified by the Government. It reads thus : "13. Revocation of detention order.-(1) A detention order may, at any time, be revoked or modified by the Government.
31. The learned Public Prosecutor has pointed out Section 13 of the KAAPA, which stipulates that a detention order may, at any time, be revoked or modified by the Government. It reads thus : "13. Revocation of detention order.-(1) A detention order may, at any time, be revoked or modified by the Government. (2) The revocation or expiry of a detention order shall not be a bar for the issuance of another detention order under section 3 against the same person, if he continues to be a person falling within the definition of known rowdy or known goonda as given in section 2 (o) or section 2 (p) and if,-- (i) after release, he is, found to have, again involved in an offence of the nature described in section 2(o) or section 2 (p); or at least one instance; or (ii) the facts, which came to the notice of the Government or the authorised officer after the issuance of the earlier detention order, considered along with previously known facts are sufficient to cause a reasonable apprehension that he is likely to indulge in or promote or abet antisocial activities; or (iii) the procedural errors or omissions, by reason of which the first order was revoked, are rectified in the procedure followed with regard to the subsequent order, even if the subsequent order is based on the very same facts as the first order." 32. So as per Section 13(2) of the Act, there is no bar in initiating the detention order, if the detenu continues his anti-social activities in the society. It is proved by the respondent that the detenu had undergone two detentions and he was released on 04.12.2016. Merely 4 1/2 months after expiry of the last detention, he repeated the criminal activities. So, definitely, the Government could take necessary steps to detain the detenu considering his earlier prejudicial activities. 33. In the counter affidavit filed by the second respondent, the details of cases which were considered for previous detentions and which are still alive at present are described. It reads thus : Sl. No. Police Station Crime Number and Section of Law Date of occurrence and date of report 1. Peechi 107/2009, 120-B & 395 IPC 12/03/09 12/03/09 2. Pudukkad 679/2009, 143, 147, 120B, 341 & 324 r/w Section 149 IPC 09/10/09 10.10.2009 3.
It reads thus : Sl. No. Police Station Crime Number and Section of Law Date of occurrence and date of report 1. Peechi 107/2009, 120-B & 395 IPC 12/03/09 12/03/09 2. Pudukkad 679/2009, 143, 147, 120B, 341 & 324 r/w Section 149 IPC 09/10/09 10.10.2009 3. Ollur 141/2010 143, 147, 148, 427 & 452 r/w Section 149 IPC 12.02.2010 13.02.2010 4. Pudukkad 1808/2012 143, 147, 148, 341, 323, 324, 326, 427 & 308 r/w Section 149 IPC 22.11.2012 24.11.2012 5. Viyyr 890/2013 143,147, 148, 341, 323, 324, 511 of 365, 302 & 212 r/w Section 149 IPC 26.05.2013 26.05.2013 6. Ollur 642/2015 341, 324, 294(b), 506(ii) & 308 r/w 34 IPC 16.04.2015 17.04.2015 34. A Rowdy History Sheet was opened against the detenu in Ollur Police Station on 14.06.2014 as 882/TSD/13 which is still in force. All these cases are pending before the concerned court. 35. According to the petitioner's counsel, the Government has violated Articles 21 and 22(5) of the Constitution of India. It is held in Stenny Aleyamma Saju v. State of Kerala and others [ 2017 (3) KHC 517 ] that the preventive detention is not based on the guilt of the detenu, but on the basis of strong suspicion to have indulged in objectionable activities which affect the society/nation at large. There is difference between 'punitive detention' and 'preventive detention'. In the case of preventive detention, it is only a prudent action to prevent the possible damage which could be caused to the public order and the society at large and as such it has to be prevented at the earliest opportunity. 36. In A.C. Raziya v. Government of Kerala [ (2004) 2 SCC 621 ], it is held that the dual rights of a detenu are: (1) the right to be informed as soon as may be of the ground on which the order is made, that is to say, the grounds on which the subjective satisfaction has been formed by the detaining authority; (2) the right to be offered the earliest opportunity of making a representation against the order of detention. By judicial craftsmanship certain ancillary and concomitant rights have been read into this Article, so as to effectuate the guarantee or safeguards envisaged by the Constitution. It was held that the grounds of detention together with supporting documents should be made available to the detenu in a language known to him.
By judicial craftsmanship certain ancillary and concomitant rights have been read into this Article, so as to effectuate the guarantee or safeguards envisaged by the Constitution. It was held that the grounds of detention together with supporting documents should be made available to the detenu in a language known to him. The duty to apprise the detenu of the right to make a representation to one or more authorities who have power to reconsider or revoke the detention has been cast on the detaining authority. So also the duty of the detaining authority to consider the representation of the detenu with reasonable expedition. The copies of relevant documents supplied to the detenu should also be legible and in case where legible copies are not supplied even after a request, the detention would be vitiated. 37. When a law of preventive detention is challenged before the court, the court has to decide on a consideration of the true nature and character of the legislation whether it is really on the subject of preventive detention or not. The entire scheme of preventive detention is based on the bounden duty of the State to protect the interests of the country and the welfare of the people from the canker of the anti-social activities by anti-social elements affecting maintenance of public order, economic welfare of the country etc. In the Constitution, certain provisions are enacted to protect the country against the anti-social activities. Article 21 gives a person the liberty to have an opportunity to have a peaceful life. Article 22(5) of the Constitution of India empowers the State to detain any person who commits prejudicial activities in a society which affects the security of the nation. 38. After hearing the learned counsel for the petitioner and the learned Government Pleader on the other side and after going through the entire records, we find that the State has complied with all the procedures before detaining the detenu under preventive detention. The record would also show that the respondent State was justified in passing the detention order under Section 3(1) of KAAPA by complying with all the provisions as contemplated under Article 22(5) of the Constitution of India. No grounds have been established by the petitioner to interfere with Ext.P1 order. For the foregoing reasons, we do not find any grounds to interfere with the impugned order. Accordingly, this writ petition is dismissed.