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2022 DIGILAW 1058 (KER)

Binu Babu v. State Of Kerala

2022-12-07

ALEXANDER THOMAS, SOPHY THOMAS

body2022
JUDGMENT : Alexander Thomas, J. The prayers in the afore-captioned Writ Petition (Criminal), seeking for writs of habeas corpus and certiorari, in relation to the challenge against the impugned order imposed on the detenu concerned, under Sec.3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as ‘the Act’ for short), are as follows:- “i) call for the records leading to Exts.P1 quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction; ii) issue a writ of habeas corpos commanding the respondents to produce the body of the detenue, Bibin Babu, aged 24 years, s/o Babu Jacob, Cheriyapallikunnel House, Athirampuzha P.O. Kottayam, Pin-686 562, the brother of the petitioner who is illegally detained in Central Prison, Kannur before this Hon'ble Court and set him at liberty forthwith. ; iii) grant such other reliefs as this Hon'ble Court deems fit and proper in the circumstances of the case including the costs of this Writ Petition(Criminal)” 2. Heard Sri.M.H.Hanis, learned counsel appearing for the petitioner and Sri.K.A. Anas, learned Public Prosecutor, appearing for the respondents. 3. The petitioner herein is the brother of the detenu involved in this case. The 3rd respondent District Police Chief (Sponsoring Authority), has given report dated 26.05.2022, addressed to the 2nd respondent District Collector -cum-District Magistrate, Kottayam,(detaining authority) that, in view of the factual details contained there in, it is a fit case for the 2nd respondent to invoke the powers under Section 3(1) of the Act, so as to order the preventive detention of the detenu under that provision, in order to prevent him from indulging in further prejudicial or anti-social activities, as conceived in Sec.2(a) of the Act. Thereafter, based on the said report, the 2nd respondent, District Collector-cum-District Magistrate, has issued the impugned Ext.P1 detention order dated 14.06.2022 and, in view of the factual aspects stated therein, it was ordered that the detenu will stand ordered to be detained under Sec.3(1) of the abovesaid Act, as otherwise, he is likely to indulge in serious prejudicial anti-social activities etc. Ext.P1 detention order dated 14.06.2022 was executed by the arrest of the detenu on 14.06.2022 itself. According to the respondents, the 2nd respondent had forthwith communicated a copy of Ext. P1 detention order, along with relevant records, to the competent authority of the 1st respondent State Government in the Home Department. Ext.P1 detention order dated 14.06.2022 was executed by the arrest of the detenu on 14.06.2022 itself. According to the respondents, the 2nd respondent had forthwith communicated a copy of Ext. P1 detention order, along with relevant records, to the competent authority of the 1st respondent State Government in the Home Department. Later, the 2nd respondent had sent the necessary proposal for approval of Ext.P1 detention order to the State Government on 14.06.2022. The Government, thereafter, issued order dated 21.06.2022, approving Ext.P1 detention order, and thereafter, referred the matter for opinion of the advisory board on 01.07.2022 and the advisory board had rendered its opinion on 12.08.2022, with a recommendation that there is sufficient cause for the preventive detention of the detenu, as per Ext.P1. Further that, the 1st respondent State Government in the Home Department, has issued GO(Rt).2323/2022/Home dated 21.08.2022, confirming Ext.P1 detention order. Altogether, seven crimes have been reckoned in the issuance of Ext.P1 detention order, wherein the last prejudicial activity (date of commission of the last crime) was on 19.04.2022. The details of the seven crimes are given in Ext.P1 detention order as well as in para 6 of pages 5 to 9 of the counter affidavit dated 15.11.2022, filed by the 1st respondent State Government. There is no dispute regarding the factual details of the said seven cases, and hence, there is no necessity for us to reproduce the same. Going by the nature of the allegations raised in such crimes, there is also no serious dispute that the detenu would satisfy the defenitional parameters of 'Known-rowdy' under Sec.2(p)(iii) r/w Section 2(t) of the above Act. 4. The main contention raised by Sri.M.H.Hanis, the learned counsel appearing for the petitioner, is that the detenu was already in judicial remand and custody, even as on the date of issuance of Ext.P1 detention order dated 14.06.2022 and this crucial fact was totally unknown to the 2nd respondent, detaining authority, as can be seen on a reading of Ext.P1. 4. The main contention raised by Sri.M.H.Hanis, the learned counsel appearing for the petitioner, is that the detenu was already in judicial remand and custody, even as on the date of issuance of Ext.P1 detention order dated 14.06.2022 and this crucial fact was totally unknown to the 2nd respondent, detaining authority, as can be seen on a reading of Ext.P1. Hence, it is urged that, going by the well settled legal principles laid down by the Apex Court in decisions as in Dharmendra Suganchand Chelawat V. UOI & Others [ 1990 (1) SCC 746 ], Abdul Sathar Ibrahim Manik vs. Union Of India & Ors [ 1992 (1) SCC 1 ], Union Of India vs. Dimple Happy Dhakad [ AIR 2019 SC 3428 ], Union of India through Joint Secretary (COFEPOSA), Ministry of Finance, New Delhi vs. Ankit Ashok Jalan [ (2020) 16 SCC 185 ], the impugned decision making process, which led to Ext.P1, is vitiated, as the detaining authority was not even aware of the crucial fact that the detenu was already under judicial custody as on the date of issuance of the impugned preventive detention order. The learned prosecutor has strongly opposed the said plea. We will now deal with the above said contention of the petitioner and render the findings. 5. In the instant case, the 3rd respondent-sponsoring authority had given their report in the matter on 26.05.2022, addressed to the 2nd respondent detaining authority. It is thereafter that the impugned Ext.P1 detention order has been issued by the 2nd respondent, as per Sec.3(1) of the Act, on 14.06.2022. It is common ground that the date of last prejudicial activity (date of commission of the last crime) in this case is on 19.04.2022. Further, the admitted case of the respondents is that, the detenu/accused was arrested and remanded to custody in the 7th crime on 19.04.2022. Later, he secured bail order in that case on 20.05.2022. It is common ground that the 2nd respondent was aware about the arrest, remand and subsequent bail order, in regard to the involvement of the detenu/accused in the 7th crime as above. But, as a matter of fact, he could not be actually released from custody, despite the grant of the bail order, as production warrants were pending on account of his involvement in two other cases. But, as a matter of fact, he could not be actually released from custody, despite the grant of the bail order, as production warrants were pending on account of his involvement in two other cases. After the grant of bail order in the 7th case on 20.05.2022, production warrant, in relation to the involvement of the detenu/accused in another case, S.C.No.366/2021 on the files of the Additional Sessions Court, Pala (arising out of crime No.384/2020 of Kuravilangad Police Station), was issued on 04.06.2022. The detenu/accused was granted bail in that Crime No.384/2020 only on 13.06.2022. Still further, another production warrant, in relation to the involvement of detenu/accused in crime No.1918 /2021, Kottayam Gandhinagar Police station, was also issued on 13.06.2022. The detenu/accused could later secure bail in Crime No. 1918/2021 of Gandhinagar police station as per the order of the Judicial First Class Magistrate Court-I 14.06.2022. Thus, it appears that the detenu/accused could actually be released from custody only on 14.06.2022. So, it appears that, though the detenu/accused had secured the bail order on 20.05.2022, in relation to his involvement in the 7th crime. i.e., (last prejudicial activity), the fact is that he was not actually released from judicial custody, on account of his involvement in two other cases, till 14.06.2022. At the time of issuance of Ext.P1 dated 14.06.2022. The respondents 2 & 3, more particularly, respondent No.2, was unaware of this fact, regarding the pendency of the production warrants in relation to the involvement of the detenu in the other two cases, viz., Crime No.384/2020 of Kuravilangadu police station and Crime No.1918/2021 of Gandhinagar police station. The factual details of 7th crime as well as the details of the pendancy of the production warrants in the other two crimes, have been now furnished by the learned public prosecutor, and the same are as follows: “Crime No.315/2022 of Thrissur Cherppu Police station, (7th crime last prejudicial activity). Date of occurrence 19.04.2022 at 15.15 hours Date of report 20.04.2022 at 02.50 hours Date of arrest 20.04.2022 Bail order 20.05.2022” 6. The detenu/accused, as A2, was then in judicial custody and remand in Thrissur District Jail, in relation to his involvement in the 7th crime. Date of occurrence 19.04.2022 at 15.15 hours Date of report 20.04.2022 at 02.50 hours Date of arrest 20.04.2022 Bail order 20.05.2022” 6. The detenu/accused, as A2, was then in judicial custody and remand in Thrissur District Jail, in relation to his involvement in the 7th crime. Further, from Thrissur district Jail, he was transferred to Kottayam District Jail on 04.06.2022, for the pending production warrant in S.C.No.366/2021 in C.P.No.14/2022, 36/2021 of Additional Sessions Court, Pala (Crime No.384/2020 of Kuravilangadu Police Station), in which he could get bail from the Additional Sessions Court, Pala, only on 13.06.2022. Still further, thereafter, the detenu was transferred from Kottayam Jail to Pala Sub Jail on 08.06.2022, in relation to the other pending production warrant in Crime No.1918/2021 of Kottayam, Gandhinagar Police Station, and the said warrant was recalled by the Judicial First Class Magistrate Court-I, Ettumanoor and the detenu/accused could thus be released from Pala Jail only on 14.06.2022. So, it is beyond the factual dispute that these crucial factual aspects, that the detenu was not actually released from judicial custody, consequent to the bail order dated 20.05.2022, issued in the 7th crime, was totally unknown to both the 2nd respondent-detaining authority & the 3rd respondent-sponsoring authority. The legal position in the matter is well settled by the aforesaid decisions cited by the learned counsel for the petitioner. 7. In the case Dharmendra Suganchand Chelawat V. Union of India & others [ (1990) 1 SCC 746 ], the Apex Court after scanning the various cases from the subject has categorically held in paragraph No.21, as follows: “21. The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.” 8. Thus, it can be seen that, an order of preventive detention can be validly passed against a person in custody and for that purpose, it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there are compelling reasons justifying such preventive detention, despite the fact that the detenu is already in detention. In that regard, two incredients should be satisfied-that there must be cogent material before the detaining authority, on the basis of which, it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in further prejudicial activities and therefore, it is necessary to detain him, in order to prevent him from engaging in such activities, etc. 9. The legal position, laid down by the 3 Judge Bench of the Apex Court in Dharmendra Suganchand Chelawat’s case supra [ (1990) 1 SCC 746 ], has been relied on and applied by the subsequent decision as in Abdul Sathar Ibrahim manik v. Union of India & others [ (1992) 1 SCC 1 ] and para 4 thereof reads as follows: "4. We see no force in the first submission namely that there was no compelling necessity for passing the detention order. It is true that when the detention order was passed on November 7, 1990 the detenu was in jail and his bail application also was rejected and his passport also was seized. We see no force in the first submission namely that there was no compelling necessity for passing the detention order. It is true that when the detention order was passed on November 7, 1990 the detenu was in jail and his bail application also was rejected and his passport also was seized. But the detaining authority has mentioned in the grounds that “I am aware that you are under judicial custody and possibility of your release on bail in the near future cannot be ruled out. Also nothing prevents you from moving bail application in the jurisdictional court and getting released on bail". Therefore it cannot be said that the detaining authority did not apply his mind to this aspect. It is entirely within his subjective satisfaction whether there are such compelling circumstances or not. He has noted that though the detenu was in jail there is likelihood of his being released and therefore it is clear that he has applied his mind to this aspect also. The learned counsel appearing for the petitioner relied on a judgment of this Court in Dharmendra Suganchand Chelawat v. Union of India wherein it is observed that an order of detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that the detaining authority was aware of the fact that the detenu was already in detention and there were compelling reasons justifying such detention and that there should be cogent material on the basis of which the detaining authority may be satisfied that there are compelling reasons such as that the detenu is likely to be released from custody in the near future and the nature of the antecedents and activities of the detenu which indicate that he is likely to indulge in such activities if released and therefore it is necessary to detain him in order to prevent him from engaging in such activities. But we may observe that what would be the compelling reasons in the context would depend on the facts of each case. In this case the allegation is that 50 gold biscuits of foreign origin were found in either side of the handle inside the lock system of the suitcase. This itself manifests the expertise of the carrier in smuggling. But we may observe that what would be the compelling reasons in the context would depend on the facts of each case. In this case the allegation is that 50 gold biscuits of foreign origin were found in either side of the handle inside the lock system of the suitcase. This itself manifests the expertise of the carrier in smuggling. The detaining authority was aware that the detenu was in custody but he was satisfied that there is every likelihood of his being released on bail and he is likely to indulge in such smuggling activities. It is mentioned in the counter-affidavit that the remand period of the detenu was to expire on November 10, 1990 and that was also a ground which impelled the a detaining authority to think that he was likely to be released on bail. This was the material before the detaining authority on the basis of which he was satisfied that there were compelling reasons to pass the detention order. Having carefully considered the submission of the learned counsel we are unable to say that there were no compelling reasons." 10. A reading of para No. 4 of Abdul Sathar Ibrahim Manik's case supra [ (1992) 1 SCC 1 ], would clearly show that, therein the detaining authority was aware that the detenu was already under judicial custody and further, the detaining authority was of the firm view that there is possibility of him being released on bail in the near future, etc. Hence, the Apex Court held therein that the necessary parameters, laid down in para 21 of Dharmendra Suganchand Chelawat’s case supra [ (1990) 1 SCC 746 ], has been fulfilled in that case and the preventive detention order was upheld in that case. 11. A 2 judge bench of the Apex Court, in the case in Union of India and another v. Dimple Happy Dhakad [AIR (2019) SC 3428 ] has held, in para 33 to 37 thereof, as follows: "33. Whether a person in jail can be detained under the detention law has been the subjectmatter for consideration before this Court time and again. Whether a person in jail can be detained under the detention law has been the subjectmatter for consideration before this Court time and again. In Huidrom Konungjao Singh v. State of Manipur and others (2012) 7 SCC 181 : ( AIR 2012 SC 2002 ), the Supreme Court referred to earlier decisions including Dharmendra Suganchand Chelawat v. Union of India (1990) 1 SCC 746 : ( AIR 1990 SC 1196 ) and reiterated that if the detaining authority is satisfied that taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. 34. In Veeramani v. State of T.N. (1994) 2 SCC 337 : (1995 AIR SCW 1730) in para (6), the Supreme Court held as under: "6. From the catena of decisions of this Court it is clear that even in the case of a person in custody, a detention order can validly be passed if the authority passing the order is aware of the fact that he is actually in custody; if he has reason to believe on the basis of the reliable material that there is a possibility of his being released on bail and that on being so released, the detenu would in all probabilities indulge in prejudicial activities and if the authority passes an order after recording his satisfaction the same cannot be struck down." 35. In the light of the well-settled principles, we have to see, in the present case, whether there was awareness in the mind of the detaining authority that detenu is in custody and he had reason to believe that detenu is likely to be released on bail and if so released, he would continue to indulge in prejudicial activities. In the present case, the detention orders dated 17.05.2019 record the awareness of the detaining authority:-(i) that the detenu is in custody; (ii) that the bail application filed by the detenues have been rejected by the Court. Of course, in the detention orders, the detaining authority has not specifically recorded that the "detenu is likely to be released". In the present case, the detention orders dated 17.05.2019 record the awareness of the detaining authority:-(i) that the detenu is in custody; (ii) that the bail application filed by the detenues have been rejected by the Court. Of course, in the detention orders, the detaining authority has not specifically recorded that the "detenu is likely to be released". It cannot be said that the detaining authority has not applied its mind merely on the ground that in the detention orders, it is not expressly stated as to the "detenue's likelihood of being released on bail" and "if so released, he is likely to indulge in the same prejudicial activities". But the detaining authority has clearly recorded the antecedent of the detenues and its satisfaction that detenues Happy Dhakad and Nisar Aliyar have the high propensity to commit such offences in future. 36. The satisfaction of the detaining authority that the detenu is already in custody and he is likely to be released on bail and on being released, he is likely to indulge in the same prejudicial activities is the subjective satisfaction of the detaining authority. In Senthamilselvi v. State of T.N. and another (2006) 5 SCC 676 : (2006 AIR SCW 4648), the Supreme Court held that the satisfaction of the authority coming to the conclusion that there is likelihood of the detenu being released on bail is the "subjective satisfaction" based on the materials and normally the subjective satisfaction is not to be interfered with. 37. The satisfaction of the detaining authority that the detenu may be released on bail cannot be ipse dixit of the detaining authority. On the facts and circumstances of the present case, the subjective satisfaction of the detaining authority that the detenu is likely to be released on bail is based on the materials. A reading of the grounds of detention clearly indicates that detenu Nisar Aliyar has been indulging in smuggling gold and operating syndicate in coordination with others and habitually committing the same unmindful of the revenue loss and the impact on the economy of the nation. Likewise, the detention order qua detenu Happy Dhakad refers to the role played by him in receiving the gold and disposing of the foreign origin smuggled gold through his multiple jewellery outlets and his relatives. Likewise, the detention order qua detenu Happy Dhakad refers to the role played by him in receiving the gold and disposing of the foreign origin smuggled gold through his multiple jewellery outlets and his relatives. The High Court, in our view, erred in quashing the detention orders merely on the ground that the detaining authority has not expressly recorded the finding that there was real possibility of the detenues being released on bail which is in violation of the principles laid down in Kamarunnisa ( AIR 1991 SC 1640 ) and other judgments and Guidelines No.24. The order of the High Court quashing the detention orders on those grounds cannot be sustained." 12. Therein, the Apex Court has held that, the authority should be aware that (i) that the detenu is in custody; (ii) that the bail application filed by the detenues have been rejected by the Court. Therein, para No.35 states that it cannot be said that the detaining authority has not applied its mind, merely on the ground that in the impugned detention order it is not expressly stated as to "detenue's likelihood of being released on bail" and "if so released, he is likely to indulge in the same prejudicial activities". But, the records disclose that the detaining authority has clearly recorded the antecedents of the detenue and its satisfaction that the detenues have high prospensity to commit such offences in future, etc. Further, it was held, in para no.36 thereof, that the satisfaction of the detaining authority that the detenue is already in custody and he is likely to be released on bail and on being released, he is likely to indulge in the same prejudicial activities, is the subjective satisfaction of the detaining authority etc. 13. In Union of India v. Ankit Ashok Jalan [ (2020) 16 SCC 185 ], the Apex Court held as follows, in para No.11 thereof: "11. As per catena of decisions of this Court, even if a person is in judicial custody, he can be detained under the relevant provisions of the Act concerned, like the COFEPOSA Act, etc. 13. In Union of India v. Ankit Ashok Jalan [ (2020) 16 SCC 185 ], the Apex Court held as follows, in para No.11 thereof: "11. As per catena of decisions of this Court, even if a person is in judicial custody, he can be detained under the relevant provisions of the Act concerned, like the COFEPOSA Act, etc. However, there must be a proper application of mind and the detaining authority must have been subjectively satisfied on considering the relevant material that there is a reason to believe that there is a real possibility of detenus being released on bail and that on being so released the detenus will in all probability indulge in prejudicial activities. In the recent decision, this Court in Dimple Happy Dhakad² had an occasion to consider the aforesaid aspect and after considering the decisions of this Court in Kamarunnissa, Union of India v. Paul Manickam, Huidrom Konungjao Singh v. State of Manipur, Dharmendra Suganchand Chelawat v. Union of India and Veeramani, this Court observed and held (i) that the order of detention validly can be passed against a person in custody and for that purpose it is necessary that the grounds of detention must show whether the detaining authority was aware of the fact that the detenu was already in custody; (ii) that the detaining authority must be further satisfied that the detenu is likely to be released from custody and the nature of activities of the detenu indicate that if he is released, he is likely to indulge in such prejudicial activities and therefore, it is necessary to detain him in order to prevent him from engaging in such activities; and (iii) the satisfaction of the detaining authority that the detenu is already in custody and is likely to be released on bail and on being released, he is likely to indulge in the same prejudicial activities with the subjective satisfaction of the detaining authority." 14. A reading of para No.10 of the decision of the Apex Court in Ankit Ashok Jalan's case supra [ (2020) 16 SCC 185 ], would disclose that, therein, in the impugned detention order, the detaining authority has stated that he was aware that the detenue is already in judicial custody and further that, there is limited possibility of him being released from judicial custody, and further that, if he is released on bail, then he is likely to continue to indulge in prejudicial activities and therefore, there is an imperative need to issue a preventive detention order under the COFEPOSA Act, etc. It would be pertinent to refer to the conclusion in the para No.10 of the said decision, which reads as follows: "10. Now so far as the first ground on which the detention orders have been set aside, namely, there is a clear lapse and failure on the part of the detaining authority, to examine and consider the germane and relevant question relating to imminent possibility of detenus being granted bail while recording its subjective satisfaction and passing the detention orders is concerned, at the outset, it is required to be noted that in Para 7, the detaining authority observed and stated as under: "7. I am aware that you i.e. Shri. Ashok Kumar Jalan are in judicial custody at present at Presidency Correctional Home, Alipore, Kolkata. However, there is an immediate possibility of your release from judicial custody and if you are released on bail, you are likely to continue to indulge in the prejudicial activities and therefore there is a need to issue a Detention Order against you under the COFEPOSA Act, 1974 with a view to prevent you from smuggling of gold and foreign currency in future." Therefore, it is evident that the detaining authority while passing the detention orders was aware of the fact that the detenus are actually in custody; that there is a real possibility of their being released on bail; and that on being so released they would in all probability indulge in prejudicial activities and therefore it is essential to prevent them from smuggling of gold and foreign currency in future." 15. Hence, it is by now, well settled that the detaining authority should be clearly aware of the fact that the detenue is already in custody in some other case, at the time when the preventive detention order was passed, and should also satisfy the other parameter. In the facts of the case, the above said prime and important parameter has not been met with, and the detaining authority was completely unaware about the fact that the detenu still continued to be in judicial custody, even as on the date of issuance of Ext.P1 detention order dated, 14.06.2022. The above said factual aspects, regarding the pendency of the production warrants in the other two cases, despite the issuance of the bail order in the 7th crime, was very much known to the subordinate Police Authorities and for reasons which are not discernible, the same was not communicated by the police authorities to the sponsoring authority, who, in turn, has not communicated those same to the detaining authority. How the lapse had occurred need not be the matter of enquiry in this proceedings. So these crucial and highly relevant aspects were totally unknown to the 2nd respondent-detaining authority, which can be seen from a mere reading of the Ext.P1 detention order. So, it is only to be held that the impugned decision making process, which led to the impugned Ext.P2 detention order is, thus, vitiated and the same is liable for judicial interdiction. 16. Accordingly, it is ordered that the impugned Ext.P1 detention order No.DCKTM/ 5365/2022/H1 dated 14.06.2022, issued by the 2nd respondent-District Collector & District Magistrate, Kottayam, as confirmed by G.O.(Rt) No.2323/2022/HOME dated 21.08.2022, issued by the competent authority of the 1st respondent Home Department, will stand quashed and set aside. Consequently, it is ordered that the respondent authorities herein and the jail authorities concerned, more particularly the 5th respondent (the Superintendent of Jail, Central Jail, Kannur), where the detenu (Sri.Bibin Babu, aged 24 years, S/o Babu Jacob) is now detained, shall forthwith release the above detenu from jail and set him at liberty, if his further detention is not required in any other case. With these observations and directions the above writ petition (criminal) will stand disposed of.