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2021 DIGILAW 743 (KER)

Ramseena W/o Sanooj v. State of Kerala

2021-08-25

K.VINOD CHANDRAN, ZIYAD RAHMAN A.A.

body2021
JUDGMENT : 1. This Writ Petition is filed for issuance of a writ of Habeas Corpus directing the respondents to produce Sri. Sanooj, aged 28 years, who is the husband of the petitioner. The petitioner is aggrieved by the order of detention passed by the 2nd respondent against the said Sanooj under the provisions of the Kerala Anti-Social Activities (Prevention) Act, 2007 [for brevity KAA(P)A] vide Ext.P1. The said order was passed based on the reports submitted by the 3rd respondent on 20.10.2020 and pursuant to the said order dated 7.12.2020, the detenue was arrested on 10.12.2020. The order was issued by treating the detenue as a ‘known goonda’ as defined under Section 2(o) of the KAA(P)A. The detention was approved by the Advisory Board on 4.02.2021 and was confirmed by the Government as per Ext.P15 order. The details of the cases in respect of which Ext.P1 order of detention was passed are as follows: S. No. Police Station Crime No. Date and Time Offences Stage 1 Chathanoor Excise Range Crime No. 7/2016 25.10.2016, 8.45 P.M. 20(b)(II)(A) of the NDPS Act Convicted and fine Rs. 5000/- 2 Chathanoor Excise Range 151/2016 25.10.2016, 8.35 P.M. 55A, 551, 67B of the Abkari Act Pending as SC No. 497/2019 Trial 3 Chathanoor Police Station 17/2016 9.4.2018, 6 P.M. 20(b)II(A) of the NDPS Act Found guilty and fine Rs. 5000/- 4 Chathanoor Excise Range 19/2018 21.4.2018, 10 A.M. 20(b)II(A) of the NDPS Act Found guilty and fine Rs. 5000/- 5 Chathanoor Police Station 266/2018 26.3.2018, 8 P.M. 341, 323, 324, 325, 34 IPC Pending Trial as C.C. No. 466/2018 6 Parippilly Police Station 620/2018 26.3.2018, 8 P.M. 20(b)(ii)(B) of the NDPS Act Pending Trial as S.C. No. 1353/2018 7 Chathanoor Excise Range 20/2019 19.2.2019, 10 A.M. 20(b)(ii)(B) of the NDPS Act Pending Trial SC No. 370/2020 8 Chathanoor Excise Range 61/2019 15.10.2019, 10.10 A.M. 20(b)(ii)(A) of the NDPS Act Pending Trial as CC No. 182/2020 9 Chathanoor Police Station 1525/2020 21.8.2020, 5.45 P.M. 20(b)(ii)(B) of the NDPS Act Investigation not completed 2. Heard Sri. C. Rajendran, the learned counsel for the petitioner and Sri. K.A. Anas, the learned Senior Government Pleader. 3. The learned counsel for the petitioner raised various contentions such as; some of the cases which formed the basis of his detention are under NDPS Act and the petitioner has already pleaded guilty in respect of the same. Heard Sri. C. Rajendran, the learned counsel for the petitioner and Sri. K.A. Anas, the learned Senior Government Pleader. 3. The learned counsel for the petitioner raised various contentions such as; some of the cases which formed the basis of his detention are under NDPS Act and the petitioner has already pleaded guilty in respect of the same. According to him, the mandate of declaring a person as a known goonda, as contemplated under Section 2(o) of the KAA(P)A is that the detenue must have been “found guilty” by a competent court or the authority at least once, for an offence within the meaning of the term of ‘goonda’ as defined under clause (j) of Section 2. In the cases under the NDPS Act, the accused pleaded guilty and there is no finding of guilt entered by a competent court on evidence led. The representations submitted by the petitioner were not considered by the Government while confirming Ext.P1 detention order. Even though the detenue requested for an opportunity of personal hearing while considering his case, the Advisory Board did not permit the same. There is a delay of 3 months and 19 days between the last prejudicial activity and the order of detention; hence the live link between the last prejudicial activity and the detention was broken. Crime 1525/2020 registered by Chathannoor Police Station; the last prejudicial activity, was in respect of an act allegedly committed by him on 21.8.2020 and the allegation therein is the possession of 1638 gm. of ganja for sale by the detenue and his associate. No recovery has been effected from the possession of the detenue in the said case and in the absence of such recovery, no proceedings under KAA(P)A can be initiated based on that crime. He relies on the proviso to Section 2(o) of the Act in support of his contention. The Advisory Board as well as the 1st respondent failed to appreciate the fact that the petitioner was released on bail in the cases mentioned above, subject to the condition that he shall not get himself involved in similar offences during the bail period. This was sufficient deterrence and this aspect was not discussed by the authorities concerned either in the detention order. 4. Per contra, the learned Senior Government Pleader would seriously oppose the contentions raised by the petitioner on behalf of the detenue. This was sufficient deterrence and this aspect was not discussed by the authorities concerned either in the detention order. 4. Per contra, the learned Senior Government Pleader would seriously oppose the contentions raised by the petitioner on behalf of the detenue. According to the Learned Senior Government Pleader, the contention of the petitioner regarding the question of pleading guilty and its impact on the order of detention is already decided by this Court as per the judgment reported in Sameena Beevi vs. State of Kerala and Others, 2014 (4) KHC 695 . The reliance of the petitioner on bail condition for not committing the crime while on bail, is not sustainable as it is a usual condition that is imposed while granting bail and despite the said condition, the detenue repeatedly committed the offences of the same nature. The contention regarding the delay is also not sustainable as there is clear explanation in the counter affidavit. As per proviso to Section 2(o) of the Act, there is no requirement that the recovery of the narcotic drug must be from the physical possession of the detenue himself, and the only requirement is that the crime which formed the basis of the detention order must have been registered consequent to the seizure of any of the articles mentioned therein. 5. The first contention raised by the petitioner is that no reliance can be placed for passing an order of detention under the KAA(P)A, upon the three cases i.e. Crime Nos. 7/2016, 17/2016 and 19/2018 of Chathanoor Excise Range. In all the said cases, he pleaded guilty and, therefore, no trial was conducted. The learned counsel points out that, one of the basic requirements of declaring a person as ‘known goonda’ as per Section 2(o)(i) of KAA(P)A is that he must have been found guilty by a competent court, atleast for one offence. In this case, no such condition has been satisfied as in all the cases, the orders of conviction were based on his plea of guilt. As pointed out by the learned Government Pleader, the said contention was specifically dealt with by a Division Bench of this Court in Sameena Beevi’s case (supra) and in paragraph 5 of the said judgment it was observed as follows: “S.2(p) of KAAPA defines known rowdy. As pointed out by the learned Government Pleader, the said contention was specifically dealt with by a Division Bench of this Court in Sameena Beevi’s case (supra) and in paragraph 5 of the said judgment it was observed as follows: “S.2(p) of KAAPA defines known rowdy. Sub-Clauses (i) and (ii) of that Section deal with cases where a person has been made guilty by a competent Court. Sub-Clause (iii) deals with instances where the judicial verdict has not come, but the investigating agency or other authority has come to the conclusion and resultant finding at that level that the person has committed a particular offence. KAAPA is essentially a piece of preventive law. That is put into action by the executive machinery of the Government and the statutory authorities under that Act. Therefore, the use of the words “made guilty” and the other words found in S.2(p) cannot be understood to be confined to the concept of trial, followed by conviction and sentencing. The provision in S.241 which falls within Chapter XIX of Cr.P.C. deals with conviction on pleading guilty. That provides that if the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon. Therefore, the pleading of guilt has to be a voluntary act at the instance of the accused. Once that is done, the Magistrate has to be satisfied of the voluntary nature of the plea and when such satisfaction is arrived at, the discretion could be exercised to convict the person who is arrayed as an accused. Sub- S.1 and S.2 of S.242 Cr.P.C. will also show that the Magistrate will proceed to fix the date for examination of the witnesses if the accused refuses to plead or does not plead guilty, or claims to be tried; or, the Magistrate does not convict the accused under S.241 Cr.P.C. It is also trite law, going by the catena of decisions of the Apex Court and different High Courts, that in cases where capital punishment or even life imprisonment is prescribed as penalty, the Courts would not enter a conviction on a pleading of guilt. The finding of guilt and the resultant imposition of penalty on the pleading of guilt will be rendered only after ascertaining the different factors on which the Magistrate will have to be satisfied that the discretion has to be exercised to terminate the prosecution by entering a conviction and imposing a sentence that way. We may make immediate advertence to S.375 of Cr.P.C. which excludes appeals where an accused person has pleaded guilty and has been convicted on such plea, except as to the extent and legality of sentence. This means that the process of conviction or entering a conviction of an accused person on a pleading of guilt is a discretionary act by the competent judicial authority and all that could be opened up would be the extent and legality of the sentence. This position under S.375 of Cr.P.C. is also clear by the wordings laid down under S.341 of Cr.P.C. In a case where the accused pleaded guilty resulting in an order of conviction and consequential imposition of sentence, there is no question of drawing any distinction between conviction on a plea of guilt and conviction following a full - fledged trial in cases which come under S.242 Cr.P.C. Therefore, we are unable to appreciate any distinction between those two types of cases. The argument advanced on behalf of the petitioner on that count, therefore, fails and the same is accordingly rejected.” We are completely in agreement with the above observations. It is true that the trial in the cases referred above were not conducted, but we cannot ignore the fact that it was because of the fact that the accused pleaded guilty and he was convicted. Having avoided the trial by a voluntary act of pleading guilty, the accused cannot turn around and raise a contention that, unless the trial is conducted, it cannot be concluded that the court has found him guilty. Even while entering into a conviction on plea of guilt, the court is recording its finding on the basis of the plea; which in a trial would be based on the evidence. In other words in cases where the accused pleads not guilty, the materials received by the court consequent to the trial conducted would form the basis of such conviction, whereas, in the case of plea of guilt, the finding is based on the plea recorded. In other words in cases where the accused pleads not guilty, the materials received by the court consequent to the trial conducted would form the basis of such conviction, whereas, in the case of plea of guilt, the finding is based on the plea recorded. Hence, the contention of the petitioner in this regard is only to the rejected. 6. The next contention is relating to the delay of 3 months and 17 days in passing the order from the last date of prejudicial activity. The learned counsel for the petitioner submits that there is no valid explanation for the delay and hence there is no live link between the said activity and the detention. The date of crime in the last offence i.e. Crime 1525/2020 is 21.8.2020 whereas the order of detention was passed only on 7.12.2020 and the same was executed on 10.12.2020. However, in the counter affidavit filed by the 1st respondent, there is a clear explanation for the same. It reads as follows: “15. The last antisocial activity committed was on 21.08.2020 in Crime No. 1525/2020 of Chathannoor Police Station. He was arrested in this crime on 25.08.2020 and he was released on bail on 22.10.2020. After collecting the relevant materials in connection with the anti-social activities of the detenue, the initial proposal for taking actions under KAA(P)A was submitted by the Sponsoring Authority vide his letter dated 20.10.2020 and the additional information called for by the Detaining Authority was furnished on 17.11.2020. Thereafter the Detaining Authority perused the relevant materials and reports of the Sponsoring Authority with proper application of mind, issued the impugned detention order dated 7.12.2020 against the detenue after objectively and subjectively satisfied on it. The short delay in making the recommendations was occurred due to pre-occupation in the COVID-19 work and it is clearly explained in the detention order. The total delay between the last antisocial activity and the detection order is just 3 months and 17 days. There is no unreasonable or inordinate delay in passing the detention order or in its execution. The short delay in making the recommendations was occurred due to pre-occupation in the COVID-19 work and it is clearly explained in the detention order. The total delay between the last antisocial activity and the detection order is just 3 months and 17 days. There is no unreasonable or inordinate delay in passing the detention order or in its execution. The live link between the last anti-social activity and the detention order is not snapped at any point of time as alleged.” From the above averments contained in the counter affidavit, it is evident that even though the offence in respect of which crime No. 1525 of 2020 was registered on 21.8.2020; he was under judicial custody in connection with the said offence till 22.10.2020. The learned Government Pleader points out that, as the Sponsoring Authority apprehended that the detenue is likely to be released on bail, a proposal for initiating proceedings under KAA(P)A was submitted by the Sponsoring Authority vide its letter dated 20.10.2020 before the Detaining Authority. The Detaining authority sought some additional information which was furnished by the Sponsoring Authority on 17.11.2020. After perusing the records, Ext.P1 order was passed on 7.12.2020 by the Detaining Authority. We notice that the detenue was under judicial custody till 22.10.2020 and even before he was released on bail a proposal for initiating the proceedings under the KAA(P)A was made by the authorities concerned and the same was duly considered without any unreasonable delay i.e. on 7.12.2020. It is evident that the proposal was made just before his release upon realizing the chances of such release on bail. It reveals the vigilance on the part of the authorities concerned and a proper application of mind. In such circumstances, it cannot be found that there is delay on the part of the authorities concerned which results in snapping the live link between the last prejudicial activity and the detention order. Timely measures are seen taken by the authorities concerned, in tune with the objects and purposes of KAA(P)A. 7. In Kumaran vs. District Collector and District Magistrate, Kozhikode, 2015 (4) KLT 911 , a Division Bench of this Court, after referring to a large number of decisions of the Honourable Supreme Court, observed that, in a case where delay has been satisfactorily explained, the order of detention cannot be treated as vitiated. In Kumaran vs. District Collector and District Magistrate, Kozhikode, 2015 (4) KLT 911 , a Division Bench of this Court, after referring to a large number of decisions of the Honourable Supreme Court, observed that, in a case where delay has been satisfactorily explained, the order of detention cannot be treated as vitiated. In this case, we find that the contents of the counter affidavit, provide a valid explanation justifying the time taken in passing an order of detention after more than three months from the date of last prejudicial activity. In the light of the said discussions, the contention of the petitioner regarding the delay is unsustainable. 8. Similarly, the contention with regard to the denial of an opportunity of personal hearing to the detenue, cannot also be treated as a sustainable contention. It is true that in Ext.P13 representation, the detenue specifically requested for an opportunity for hearing and as per Ext.P14, the Advisory Board communicated to the detenue that on account of the restrictions due to Covid-19 pandemic, personal hearing in a sitting of Advisory Board is not possible. However, he was informed that in case he has got any further legal submissions, he may send the same to the Board through the Superintendent of Prison on or before 3.2.2021. The petitioner does not have a case that any further legal submissions apart from the representation submitted before the Advisory Board, was made. On account of the special circumstances prevailing in the State owing to Covid-19 pandemic, we do not think that the ground urged by the petitioner in this regard, is a matter which affects sustainability of the order passed in this case. It is evident from the records that he was given ample opportunity to furnish written statements, which was communicated to him as per Ext.P14, but he did not avail the same. The petitioner also did not point out any prejudice caused to the detenue, due to lack of personal hearing. On the other hand, on examination of the materials, it can be seen that, except the contention of denial of personal hearing, all the contentions raised in this writ petition, were raised in Ext P13 representation as well. There is also no contention raised, not available in the representation, even before us at the time of hearing. The lack of opportunity for personal hearing has not caused any prejudice to the detenue. There is also no contention raised, not available in the representation, even before us at the time of hearing. The lack of opportunity for personal hearing has not caused any prejudice to the detenue. In such circumstances, it cannot be found that, it is a sustainable ground warranting interference of this court under Article 226 of the Constitution of India. We cannot also ignore the practical difficulties for the Advisory Board, to conduct the personal hearing on account of the extra ordinary situation prevailing through out the country on account of Covid-19 pandemic. 9. The learned counsel for the petitioner further contends that the representations submitted by the petitioner were not properly considered by the 1st respondent while issuing Ext.P15 order. In support of his contention, the learned counsel brought to our attention the averments contained in paragraph 17 of the counter affidavit filed by the 1st respondent. According to him, on going through the contents of paragraph 17, it is evident that, the representation dated 12.12.2020 submitted by the detenue before the Government is not seen considered by the Government. In order to show the receipt of the said representation, he relies on the following averments contained in paragraph 17 at page 15 of the counter affidavit, though he had chosen not to produce the copy of such representation, which is very conspicuous. The relevant portion of the counter affidavit reads as follows: “Along with the report of the Advisory Board two representations submitted by the detenue dated 12.12.2020 and 16.01.2021 and one representation without date submitted by the wife of the detenue Smt. Ramseena addressed to the Chairman, Advisory Board, KAA(P)A were also received. Among these three representations, the representation dated 16.01.2021 of the detenue was same as that earlier received in Government.” A careful reading of the averments in the counter affidavit reveal that the said contention is without any basis. It is specifically averred therein that on 30.1.2021, the representation dated 16.1.2021 was received by the Government along with a letter dated 23.1.2021 of the Superintendent of Central Prison, Viyyur. Since the case was under consideration before the Advisory Board, the said representation was forwarded to the Advisory Board along with the Government letter bearing No. Home-SSA5/140/2020, Home dated 5.2.2021. It is specifically averred therein that on 30.1.2021, the representation dated 16.1.2021 was received by the Government along with a letter dated 23.1.2021 of the Superintendent of Central Prison, Viyyur. Since the case was under consideration before the Advisory Board, the said representation was forwarded to the Advisory Board along with the Government letter bearing No. Home-SSA5/140/2020, Home dated 5.2.2021. After considering the contentions raised by the detenue, vide order dated 4.2.2021 the Advisory Board has opined that there is sufficient cause for detention of the person and a report was forwarded to the Government along with representations submitted by the detenue on 12.12.2020 and 16.1.2021 and also another representation submitted by his wife in which no date is mentioned. The averments in the counter affidavit clearly indicate that, out of the three representations, the representation dated 16.1.2021 of the detenue was the same which was received by the Government and forwarded to the Advisory Board. Hence it is evident that the representation dated 12.12.2020 though received by the Advisory Board was not received by the Government. It came into the hands of the Government only when the same was forwarded by the Advisory Board. The contention raised by the petitioner in this regard is only to be rejected. 10. Now let us consider the contention that the last prejudicial activity in Crime No. 1525/2020 of Chathannoor Police Station and the acceptability of the same to form the basis of the order of detention. The allegation contained in Crime 1525/2020 is that, on 21.8.2021, the Sub Inspector of Police, Chathanoor Police Station recovered 1638 gm. Ganja from a Maruti Swift Car kept parked near the car porch of a house named Anu Manzil and the seizure was made in the presence of independent witnesses. In connection with the same, initially the 1st accused A.M. Salim was arrested and upon questioning him, it was informed that the Ganja was supplied by the detenue herein. Accordingly, the detenue was arrested and was in judicial custody till 22.10.2020. The contention of the learned counsel for the petitioner is that, the said case cannot form the basis of an order of detention for declaring the detenue as a known goonda. Accordingly, the detenue was arrested and was in judicial custody till 22.10.2020. The contention of the learned counsel for the petitioner is that, the said case cannot form the basis of an order of detention for declaring the detenue as a known goonda. According to him, to bring the said offence within the ambit of Section 2(o) of KAA(P)A, which defines the term ‘known goonda’ the recovery of the narcotic drug should be from the possession of the detenue himself. Section 2(o) of KAA(P)A reads as follows: “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. (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 through 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 in to consideration as an instance, along with other cases, for deciding whether the person is a known goonda or not.” The reliance placed by the petitioner is on the proviso to the above provision which deals with the seizure of certain articles including narcotic drugs. However, a careful reading of the said proviso would reveal that, noting contained therein would make it mandatory that the seizure should be from the detenue himself. However, a careful reading of the said proviso would reveal that, noting contained therein would make it mandatory that the seizure should be from the detenue himself. On the other hand, what is actually contemplated therein is that the said offence must have been registered consequent to the seizure of alcohol, spirit, counterfeit notes, sand, forest produce, articles violating copyright, narcotic drugs, psychotropic substances or currency etc, in the presence of witnesses. In other words, the seizure contemplated therein is in relation to the offences and not in respect of the offender sought to be detained. To be precise, if the case which formed the basis of order of detention, is one registered consequent to the recovery of any of the articles mentioned in the said provision, it comes within the ambit of section 2(o). In this case on going through the contents of Ext.P12 F.I.R. it is seen that it was registered consequent to the seizure of 1638 gms of ganja. The said recovery was made from the 1st accused therein while he was transporting the narcotic drugs in a car and upon questioning he admitted that the same was supplied to him by the 2nd accused therein who is the detenue in this case. Thus, it is evident that the registration of the said crime was based on seizure of narcotic drugs and the conditions stipulated in proviso to Section 2(o) is therefore clearly satisfied. In such circumstances, we do not find any reason to entertain the contentions put forward by the learned counsel for the petitioner in this regard. 11. Another contention is relating to the bail conditions imposed upon him to the effect that, he shall not involve in similar offences during the period of bail. As rightly pointed out by the learned Government Pleader, despite the fact that there was such a condition in the orders of bail passed, the petitioner was continuously getting involved in the offences of similar nature. In such circumstances, the question of sufficiency of the said bail condition does not arise as the insufficiency of such condition stands illustrated by the detenue himself, through his contumacious acts. We are also of the view that, the detenue is not justified in taking shelter under the bail conditions, which he himself violated repeatedly. In such circumstances, the question of sufficiency of the said bail condition does not arise as the insufficiency of such condition stands illustrated by the detenue himself, through his contumacious acts. We are also of the view that, the detenue is not justified in taking shelter under the bail conditions, which he himself violated repeatedly. In such circumstances, the contention of the learned counsel for the petitioner in this regard is also to be rejected. 12. We are also satisfied from the materials produced before us that various stipulations as contained in KAA(P)A regarding the compliance of time limit to be followed while passing the order of detention and for confirming the same, were complied with. It is evident from the records that the detenue is involved in 9 cases during the period of 2016 to 2020; within a period of seven years preceding to the order of detention, which is a mandatory requirement. All the said cases are pertaining to the offences which come under the definition of ‘goonda’ as defined under Section 2(j) of the Act and the detenue also satisfies the definition of ‘known goonda’ as contemplated under Section 2(o) of KAA(P)A. It is evident from the records that, authorities concerned have applied their mind and arrived at a subjective satisfaction as to the necessity to pass an order of detention. We do not find any materials or grounds to interfere with such a decision taken by them. In such circumstances, we find no merit in this writ petition and it is, accordingly, dismissed. 13. Before concluding, we wish to make some observations to ensure facilitation of personal hearing through Video Conferencing. In this case, we have found that, not providing the opportunity to the detenue for personal hearing has not resulted in any prejudice to the detenue. However, we notice that, granting opportunity for hearing, if asked for by the detenue, is a statutory requirement under section 10 of the Act and hence adherence to the same is necessary for completeness of the procedure. Even in cases where, the Advisory Board, is prevented by reasonable cause, from providing a physical hearing, it is desirable to provide a virtual hearing. Advancement of technology enables us to conduct hassle free virtual hearings, through the means accessible to all. Even in cases where, the Advisory Board, is prevented by reasonable cause, from providing a physical hearing, it is desirable to provide a virtual hearing. Advancement of technology enables us to conduct hassle free virtual hearings, through the means accessible to all. We are unable to see any reason in not adopting such technological advances by the authorities concerned, for effective compliance of procedures contemplated in the statute. In such circumstances, we direct the 1st respondent, to provide necessary infrastructure to the Advisory Board under KAA(P)A, to enable them to conduct personal hearings through virtual mode, as expeditiously as possible. We are told that the prisons are provided with such facilities and the infrastructure provided to the Advisory Board would ensure that the statutory requirement is complied with in its letter and spirit.