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2020 DIGILAW 472 (KER)

Susheela v. State of Kerala

2020-06-08

C.T.RAVI KUMAR, K.HARIPAL

body2020
JUDGMENT : K. Haripal, J. 1. This is a petition filed under Article 226 of the Constitution seeking to issue a writ of habeas corpus directing the 4th respondent to produce the body of the detenu and to release him, to issue a writ of certiorari for calling for the records in connection with Ext. P2 detention order, as confirmed by Ext. P5 order, and to set aside the same. 2. The petitioner is the mother of the detenu, who was arrested, now undergoing detention on the orders of the 2nd respondent, issued under Section 3 of the Kerala Anti Social Activities (Prevention) Act, 2007, hereinafter referred to as 'the Act'. He was arrested on 06/08/2019 on the basis of Ext. P2 detention order issued by the District Magistrate, Alappuzha, who was acting on the basis of Ext. P1 report of the 3rd respondent, the District Police Chief, Alappuzha. According to the petitioner, the said order is vitiated, illegal, arbitrary and violative of the basic principles and statutory requirements; though Ext. P1 report was issued on 31/12/2018, Ext. P2 was issued after a period of 114 days of the last prejudicial activity and thereby the live link was snapped and the detention order is liable to be set aside on that ground alone. The explanation for the delay shown in Ext. P2 is unreasonable and inordinate, which is sufficient to doubt the genuineness of the subjective satisfaction arrived at by the detaining authority. The impugned order was passed without application of mind and on that ground also it is to be set aside. There is also huge gap between Ext. P2 order and the date of detention. The detenu has never gone absconding, still the 5th respondent did not execute the order. The detenu has not involved in any anti-social activity during the period from 10/10/2018 to 06/08/2019, till the execution of the order. He has already undergone more than half of the period of detention imposed on him. Moreover, Crime No. 978/2017 of Kurathikkad Police Station, one of the crimes referred for initiating action under the Act against the detenu, was registered suo motu. From Ext. P1, it is evident that the detenu had not involved in any antisocial activity, when he had executed a bond under Section 107 of the Cr.P.C. All the six cases relied on by the respondents for passing Ext. From Ext. P1, it is evident that the detenu had not involved in any antisocial activity, when he had executed a bond under Section 107 of the Cr.P.C. All the six cases relied on by the respondents for passing Ext. P2 order were registered within the limits of Alappuzha District and, therefore, there is no reason why Section 15 of the Act should not have been invoked. Crime No. 1556/2018 of Haripad Police Station was registered on trivial grounds. According to the petitioner, all these matters indicate lack of application of mind on the part of the 2nd respondent in passing Ext. P2 order. 3. Smt. Priyamol M.P., Under Secretary, Home Department has filed a counter affidavit, for the 1st respondent, denying the allegations in the writ petition. According to the respondent, there are valid reasons to state that the detenu could be classified as a 'known rowdy' under Section 2(p)(iii) of the Act. Such a decision was taken based on records and in the interest of public safety, security, peace and tranquility of the society. The detention order was passed complying with the procedural formalities; the Government have issued orders approving the detention order under Section 3(3) of the Act. Later, the matter was placed before the Advisory Board under Section 9 and the Advisory Board also formed the opinion that sufficient cause had been made out to justify the detention. Thus, the order was confirmed by the Government under Section 10(4) of the Act. On the basis of six cases referred by the sponsoring authority, the detaining authority reckoned six instances of anti-social activities committed by the detenu. She has detailed the six cases relied on by them in passing Ext. P2 order. According to her, the sponsoring authority gave the report to the 2nd respondent District Magistrate, who, after considering all the details, passed the detention order under Section 3(1) of the Act. Even earlier, the detenu was under preventive detention, twice, under the Act. There were cases registered in 2016, 2017 and 2018 against him. Out of the six cases referred in Ext. P2 order, charge sheets have been laid in three cases and the other three cases are under investigation. Even after two earlier detentions, the detenu was continuously indulging in anti-social activities. Therefore, he continues to be a 'known rowdy' under Section 2(p)(iii) read with Section 2(t)(i) and (ii) of the Act. Out of the six cases referred in Ext. P2 order, charge sheets have been laid in three cases and the other three cases are under investigation. Even after two earlier detentions, the detenu was continuously indulging in anti-social activities. Therefore, he continues to be a 'known rowdy' under Section 2(p)(iii) read with Section 2(t)(i) and (ii) of the Act. According to the respondent, both the sponsoring authority and the Authorised Officer were satisfied that preventive detention of the detenu is absolutely necessary. After the registration of the crime on 09.10.2018, the detenu went absconding. The delay between the last anti-social activity and the detention order is only 114 days, the reason for the delay has been clearly stated in the order. The Authorised Officer had taken time for collecting the materials and to assess satisfaction for issuing the order of preventive detention. The time taken is only reasonable and that has not snapped the live link between the last date of anti-social activity and date of passing the Ext. P2 order. Even though all possible steps were taken to arrest him, he was evading arrest. At last he was arrested when he had surrendered before the Judicial First Class Magistrate Court-II, Haripad in another case. The District Magistrate issued the order of detention at the right time after attaining satisfaction of the twin components of preventive detention-objective satisfaction and subjective satisfaction, and upon compelling circumstances, to safeguard public peace and order. So, the respondent prayed for dismissing the petition. 4. We heard Smt. Saipooja, the learned counsel for the petitioner and also Sri. K.A. Anas, the learned Public Prosecutor appearing for the respondents. 5. The learned counsel for the petitioner made valiant attempts to impress us that by the delay in passing Ext. P2 order and in executing the same, the live link between the prejudicial activity and detention was snapped. The learned counsel reiterated that the detenu was very much available in the locality, there was absolutely no reason why he was not taken into custody immediately after passing the order. The delay in executing the order and the absence of subjective satisfaction on the part of the detaining authority was highlighted by the learned counsel. The learned counsel reiterated that the detenu was very much available in the locality, there was absolutely no reason why he was not taken into custody immediately after passing the order. The delay in executing the order and the absence of subjective satisfaction on the part of the detaining authority was highlighted by the learned counsel. According to the counsel, the personal liberty of a citizen is of paramount importance and preventive detention should have been attempted only as the last resort; The crimes were registered in three police stations, all in Alappuzha District, so that, the respondents should have initiated action under Section 107 Cr.P.C. or, at the most, should have resorted to externment of the detenu. The learned counsel also relied on the decision reported in Soja Beegum v. Additional Chief Secretary to Govt., Home Department and others 2010 Crl. LJ 1636). The learned Public Prosecutor controverted all the arguments and strongly supported the detention proceedings. 6. We have also perused the records produced by the respondents which led to the passing of the detention order that stands confirmed by the Government. 7. The core issue to be considered is, whether Ext. P2 order was passed after due deliberation and application of mind by the detaining authority, and whether it would stand judicial scrutiny. 8. Before dealing with the question and adverting to rival contentions, it is advantageous to set out the sequence of events which had led to the passing of Ext. P2 order. It is the admitted position that the detenu is facing such proceedings for the third time. Earlier, for the first time, detention order was passed on 01/04/2017 alleging antisocial activities. It was later revoked by the 1st respondent on the basis of the opinion conveyed by the Advisory Board. Then, after registering two more crimes, similar proceedings was initiated against him again and by the order dated 02/02/2018 he was ordered to be detained for a period of six months. He underwent the detention and came out on 16/08/2018. It is the specific case of the respondents that after the said release on 16/08/2018, he had indulged in two more antisocial activities, which prompted the 3rd respondent to file a report, which ultimately resulted in issuing Ext. P2 detention order. The last prejudicial activity was on 09/10/2018, following which Ext. P1 report was sent on 31/12/2018, basing on which Ext. P2 detention order. The last prejudicial activity was on 09/10/2018, following which Ext. P1 report was sent on 31/12/2018, basing on which Ext. P2 order was passed by the 2nd respondent. Admittedly, he was arrested on 06/08/2019 and since then, is undergoing detention. 9. It is the settled proposition of law that preventive detention under Section 3 of the Act is a jurisdiction of suspicion, for invoking the same, strong apprehension is sufficient. It is purely an act of preempting the suspect from indulging in illegal activities in future, and not punitive in nature. In the oft quoted decision, reported in Hare Ram Pandey v. State of Bihar and Others AIR 2004 SCC 738), the Apex Court has outlined the purpose and intent of preventive detention, thus: "6. ..... Preventive detention is an anticipatory measure and does not relate to an offence, while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The object of the law of preventive detention is not punitive but only preventive. It is resorted to when the Executive is convinced that such detention is necessary in order to prevent the person detained from acting in a manner prejudicial to certain objects which are specified by the concerned law. The action of Executive in detaining a person being only precautionary, the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct in an exhaustive manner, the failure to conform to which should lead to detention. The satisfaction of the Detaining Authority, therefore, is a purely subjective affair. The Detaining Authority may act on any material and on any information that it may have before it. Such material and information may merely afford basis for a sufficiently strong suspicion to take action, but may not satisfy the tests of legal proof on which alone a conviction for offence will be tenable. The compulsions of the primordial need to maintain order in society without which the enjoyment of all rights, including the right to personal liberty would loose all their meanings are the true jurisdiction for the laws of preventive detention. The pressures of the day in regard to the imperatives of the security of the State and of public order might require the sacrifice of the personal liberty of individuals. The pressures of the day in regard to the imperatives of the security of the State and of public order might require the sacrifice of the personal liberty of individuals. Laws that provide for preventive detention posit that an individual's conduct prejudicial to the maintenance of public order or to the security of State or corroding financial base provides grounds for satisfaction for a reasonable prognostication of a possible future manifestations of similar propensities on the part of the offender. This jurisdiction has been called a jurisdiction of suspicion. The compulsions of the very preservation of the values of freedom of democratic society and of social order might compel a curtailment for individual liberty. "To, lose our country by a scrupulous adherence to the written law" said Thomas Jefferson "would be to lose the law itself, with life, liberty and all those who are enjoying with us, thus absurdly sacrificing the end to the needs". This, no doubt, is the theoretical jurisdiction for the law enabling preventive detention. But the actual manner of administration of the law of preventive detention is of utmost importance. The law has to be justified by the genius of its administration so as to strike the right balance between individual liberty on the one hand and the needs of an orderly society on the other." 10. By Ext. P2 order, after conducting detailed survey of the criminal antecedents of the detenu, the 2nd respondent wanted to describe him as a 'known rowdy' and that he should be detained under the Act invoking jurisdiction under Section 3(1) read with Section 13(2)(i)(ii). The order has stood scrutiny by the Advisory Board and confirmed by the 1st respondent. That order was executed on 06/08/2019. 11. Now, we shall consider the arguments of the learned counsel for the petitioner. At first we will deal with the delay between the last prejudicial act and the order date of detention, and the argument that the live link has been snapped. But, after going through the materials on record, we are not convinced that such an argument will hold good. As pointed out earlier, the provocation in initiating such a proceeding was the registration of two more crimes, viz. But, after going through the materials on record, we are not convinced that such an argument will hold good. As pointed out earlier, the provocation in initiating such a proceeding was the registration of two more crimes, viz. Crime No. 1556/2018 under Sections 323, 452, 506(ii) and 34 IPC and Crime No. 1741/2018, both in Haripad police station, after his release on 16/08/2018 on expiry of the period of detention based on the order of detention dated 02/02/2018. The cause of action for the latter case had arisen on 09.10.2018, alleging offence punishable under Sections 324, 326, 308, 506(i), 427 and 34 of IPC and Section 7(b) r/w 27(2) of the Arms Act. The 2nd respondent had taken into consideration four other crimes as well, which were already pending against the detenu, including one registered suo motu by a Sub Inspector, after having found the detenu in illegal possession of an unlicensed pistol. Whatever that may be, the time lag between the last prejudicial act and the date of detention order is 114 days, nearly four months. After going through the materials placed before us, we are convinced that there are valid and satisfactory explanations for the delay. Materials had to be collected from different police stations to form an opinion and to satisfy himself subjectively that the person requires preventive detention. This Court in Rahila Nazeer v. State of Kerala and others ILR 2016 (3) Ker. 92] held that if the delay is satisfactorily explained, it cannot be said that live link is snapped, factual situation in each case has to be considered separately and there is no such proposition that the delay is always prejudicial. In that case, the Court was considering an order of detention passed after six months since the date of the last prejudicial activity. 12. Ext. P2 contains explanation for the delay in initiating the proceedings. The last prejudicial activity had allegedly taken place on 09/10/2018 for which Crime No. 1741/2018 of Haripad police station was registered. Ext. P1 report was made on 31/10/2018 and Ext. P2 was issued on 01/02/2019. Paragraph 32 of Ext. P2 indicates that the respondents had to collect details from different police stations with regard to the nefarious activities of the detenu. The records show that the alleged criminal acts of the detenu were reported in Haripad, Thrikkunnappuzha and Kurathikkad police stations. Ext. P1 report was made on 31/10/2018 and Ext. P2 was issued on 01/02/2019. Paragraph 32 of Ext. P2 indicates that the respondents had to collect details from different police stations with regard to the nefarious activities of the detenu. The records show that the alleged criminal acts of the detenu were reported in Haripad, Thrikkunnappuzha and Kurathikkad police stations. Even though all these police stations situate in Alappuzha District itself, in order to collate and compile the details, some reasonable time is required and here, having regard to the fact situation, in no stretch of imagination it could be said that the delay is inordinate. 13. The delay in execution of the detention order was also highlighted by the learned counsel to assail the proceedings. According to the learned counsel, the detenu had never gone absconding, he was very much available in the locality, there is no reason why he was not arrested and detained immediately after passing Ext. P2 order or after confirming it by the Government. The claim has been disputed by the learned Public Prosecutor. To support the argument, the learned Public Prosecutor has invited our attention to a statement of the detenu recorded in file No. Home-SSAS/125/2019, where he had reportedly stated that, since he was implicated in some crimes, he had to flee from the native place and was staying in Palakkad, along with his wife, after arranging a job there, and that he had tried to get anticipatory bail from there. He has added that at that time his wife was four months' pregnant, that he was arrested when he had surrendered before the Court for taking bail. In our opinion, this statement cuts the very root of the argument of the learned counsel that he had never absconded or that he was available in the native place. 14. Soja Beegum, quoted supra, cited by the learned counsel for the petitioner, has turned up on its own facts and cannot salvage the petitioner. In our opinion, this statement cuts the very root of the argument of the learned counsel that he had never absconded or that he was available in the native place. 14. Soja Beegum, quoted supra, cited by the learned counsel for the petitioner, has turned up on its own facts and cannot salvage the petitioner. There, this Court was dealing with a case in which detention order was passed on 31/03/2008, which was executed on 05/08/2009, after a lapse of 1½ years; Meanwhile, this Court noticed that there was no recalcitrant or refractory conduct on the part of the detenu; from the records made available, the Court noticed that, during the relevant period the detenu had appeared before Courts concerned on regular intervals and there was nothing to support that he had absconded. 15. The learned counsel also pointed out that, after the last prejudicial activity and the date of detention, for ten months, no crime has been registered against him, that he was leading a peaceful life. But, as a matter of fact, that is not a reason for undoing all the previous activities of the detenu. As rightly suggested by the learned Public Prosecutor, the totality of the nefarious activities of the detenu from 2011 onwards, which could be inferred from the records made available, it is certain that he had been leading a wayward life, justifying the invocation of the provisions of the Act. 16. The learned counsel also argued that instead of these proceedings infringing the personal liberty of the detenu, proceeding either under Section 107 Cr.P.C. or Section 15 of the Act, should have been initiated; she also stated that one of the crimes registered under the Arms Act was taken suo motu, which should not have been taken into account. Of course, Crime No. 978/2017 of Kurathikkad police station registered under Section 3 read with Section (25)(1)(A) of the Arms Act should not have been reckoned for the purpose since that case was registered by a Sub Inspector himself as de facto complainant. But that is not a reason for throwing the entire case of the respondents, overboard. Going by sub-clause (4) of Section 7 of the Act, an order of detention shall not be deemed to be invalid merely because one or more of the facts and circumstances cited among the grounds are vague, non-existent, irrelevant or invalid. But that is not a reason for throwing the entire case of the respondents, overboard. Going by sub-clause (4) of Section 7 of the Act, an order of detention shall not be deemed to be invalid merely because one or more of the facts and circumstances cited among the grounds are vague, non-existent, irrelevant or invalid. In Jayalakshmi v. State of Kerala (2015 (4) KLT 945), this Court had made it clear that, even if it is found that one or more of the cases on the basis of which the detenu is classified as a 'known goonda' or 'known rowdy' are found to be not within the purview of cases coming under clauses (o) or (p) (of Section 2), the order of detention would not lapse or become irrelevant or stale or improper, provided sufficient number of cases are still available against the detenu concerned. That means, Crime No. 978/2017 is liable to be eschewed, still five crimes were available in which either final reports have been filed or are at the stage of investigation. As a matter of fact since the detenu was preventively detained under order dated 02/02/2018 and he was released on 16/08/2018 in terms of Section 13(2) of the Act, involvement in an offence of the nature described in Section 2(o) or Section 2(p) at least in one instance, is sufficient for the issuance of another detention under Section 3 of the Act. 17. The records produced by the respondents indicate that the detenu is a history sheeter. He has crimes from 2011 onwards at his credit. It is shown that two such cases had ended in acquittal. When first proceedings under the Act was initiated, he had three cases to his credit. That detention order was revoked on the advice of the Advisory Board. Thereafter, after the release from the first detention, he had indulged in two cases which led to the initiation of the second proceedings and he was detained on 02/02/2018. At that time, he underwent full term of six months of detention. Even after the said release on 16/08/2018, the inherent character of the detenu did not undergo any change. Even thereafter, two crimes were registered against him and that prompted the respondents 1 and 2 to initiate the third proceedings, which is the subject matter of this writ petition. 18. Even after the said release on 16/08/2018, the inherent character of the detenu did not undergo any change. Even thereafter, two crimes were registered against him and that prompted the respondents 1 and 2 to initiate the third proceedings, which is the subject matter of this writ petition. 18. The records produced by the respondents also show that all the cases referred to in Ext. P2 order, except the one registered on 06/09/2018 under Section 323, 452, 506(ii) and 34 IPC, are serious offences triable exclusively by the Sessions Court. Secondly, some of the victims of the crimes were innocent citizens. One incident has been highlighted that the gang of the detenu had assaulted and injured a 20 year old youngster, while he was taking food in a petty shop, for the reason that he had stared at the detenu. In other words, there are reasons that, on many occasions, the detenu was creating terror-like situations, infringing the peace and tranquility of the area. 19. We are convinced that the 2nd respondent had passed the Ext. P2 order after considering the entire gamut in its proper perspective. Respondents have followed the statutory calendar promptly; procedural formalities also have been complied with. We do not find our way to find fault with the subjective satisfaction arrived at by the officials. In our opinion, the petitioner could not make out any ground to invite invocation of the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. Thus, the writ petition is liable to be dismissed. Dismissed. No costs.