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2025 DIGILAW 42 (KER)

HASHITHA P. K W/o ASHIQUE v. STATE OF KERALA

2025-01-08

JOBIN SEBASTIAN, P.B.SURESH KUMAR

body2025
JUDGMENT : P.B. Suresh Kumar, J. This is a writ petition instituted seeking, among others, a writ of habeas corpus directing the respondents to produce the husband of the petitioner, Ashique, who is detained in terms of Ext.P1 order issued under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (the Act) and to set him at liberty. 2. Heard the learned counsel for the petitioner as also the learned Government Pleader. As required by us, the learned Government Pleader has also made available for our perusal, the files leading to the detention of the husband of the petitioner. 3. The relevant facts as borne out from the pleadings of the parties and the files are the following: The detenu is a person who was involved in several cases and was detained under the Act on three earlier occasions. The term of his last detention was over on 19.04.2023. After the release of the detenu, on completion of the term of the last detention order, he got involved in Crime No.359 of 2023 of Vallikunnam Police Station registered on 14.06.2023 under Sections 143, 147, 149, 341, 294(b), 323, 324 and 308 of the Indian Penal Code (IPC). The detenu is the third accused in the said case. He was arrested in that case on 28.06.2023 and enlarged on bail later on 24.08.2023. In the meanwhile, in the light of the involvement of the detenu in the said crime, the District Police Chief made a proposal on 29.07.2023 for his detention again under the Act. Later, when the detenu obtained bail in Crime No.359 of 2023 on 24.08.2023, that fact was also brought to the notice of the detaining authority by the District Police Chief in terms of his report dated 25.09.2023. The proposal of the District Police Chief dated 29.07.2023 and the report dated 25.09.2023 were, however, not acted upon by the detaining authority. Whilst so, the detenu got himself involved in another case as well namely, Crime No.744 of 2024 of Kayamkulam Police Station registeredon 22.05.2024 under Sections 294(b) and 506(ii) of the IPC. The involvement of detenu in that case was also brought to the notice of the detaining authority by the District Police Chief in terms of a report dated 22.06.2024. Whilst so, the detenu got himself involved in another case as well namely, Crime No.744 of 2024 of Kayamkulam Police Station registeredon 22.05.2024 under Sections 294(b) and 506(ii) of the IPC. The involvement of detenu in that case was also brought to the notice of the detaining authority by the District Police Chief in terms of a report dated 22.06.2024. Later, when the final report in Crime No.744 of 2024 was submitted, the said fact was also brought to the notice of the detaining authority by the District Police Chief in terms of another report dated 24.07.2024. It is thereafter that Ext.P1 order was issued on 06.09.2024 and the same was executed on 09.09.2024. The detention order proceeds on the premise that the detenu is a “known rowdy”. A “known rowdy” in terms of the provisions of the Act, is only a“rowdy” who satisfies the definition of “known rowdy” under the Act. 4. The first and foremost contention of the learned counsel for the petitioner is that there is a delay of 3 months and 17 days from the date of the last prejudicial activity attributed to the detenu and the date of the order of detention and that inasmuch as the said delay has not been satisfactorily explained in the order of detention, the same is vitiated on account of that reason. As noted, the last prejudicial activity of the detenu is his involvement in Crime No.744 of 2024. The said crime was one registered on 22.05.2024 and the involvement of the detenu in the said crime was reported to the detaining authority by the District Police Chief on 22.06.2024 itself on receiving information from his subordinate officer namely, the Deputy Superintendent of Police who, in turn, received information from the concerned Station House Officer. As noted, later when the final report in Crime No.744 of 2024 was submitted, the said fact was also brought to the notice of the detaining authority by the District Police Chief in terms of his report dated 24.07.2024. The order of detention reveals that it was taking into account of the reports dated 22.06.2024 and 24.07.2024 that the present order of detention has been issued on 06.09.2024. The order of detention reveals that it was taking into account of the reports dated 22.06.2024 and 24.07.2024 that the present order of detention has been issued on 06.09.2024. It can be seen that the order of detention was issued within about 45 days from the report dated 24.07.2024 and the delay in issuing the detention order has been explained by the detaining authority in paragraph 31 of the order of detention. The relevant recitals read thus: While considering questions relating to delay in issuing detention orders, one ought to keep in mind the manner in which the Government machinery works, especially while discharging functions, where procedural compliances play a significant role. Reverting to the case on hand, if the question of delay in issuing the order of detention is considered keeping in mind this ground reality, it cannot be said that the live link between the last prejudicial activity and the order of detention has been snapped. 5. The next contention of the learned counsel for the petitioner is that Crime No. 571 of 2022 of Mannar Police Station and Crime No.744 of 2024 of Kayamkulam Police Station in which the detenu was involved ought not have been considered by the detaining authority for issuing the detention order, and inasmuch as the said crimes were also considered for the said purpose, Ext.P1 order of detention is vitiated on account of serious non-application of mind. It was pointed out by the learned counsel that the offence involved in Crime No.571 of 2022 is the offence punishable under Section 511 of Section 365 IPC. According to the learned counsel, the offence punishable under Section 511 IPC being an offence that falls within Chapter XXIII of IPC, the detaining authority is precluded from considering the said crime for the purpose of issuing the detention order on the premise that the detenu is a “rowdy”. Likewise, it was pointed out by the learned counsel that the offence involved in Crime No.744 of 2024 of Kayamkulam Police Station being an offence punishable under Section 506 Part II of IPC, the detaining authority is precluded from considering the said crime also for the purpose of issuing the detention order on the premise that the detenu is a “rowdy” since the allegations against the detenu in that case do not make out a case under Section 503 IPC. According to the learned counsel, if a case under Section 503 IPC is not made out in the allegations, it cannot be said that the detenu has committed the offence punishable under Section 506 Part II IPC. 6. Section 511 IPC is only a general provision providing for punishment for attempt to commit offences punishable with imprisonment for life or other imprisonment. As such, the question whether the involvement in a particular offence would qualify a person as “rowdy” has to be decided based on the definition of “rowdy” in the Act. The expression"rowdy" is defined under the Act as follows: “ Section 2 (t) "rowdy" means and includes a person who either by himself or as a member of a gang commits or attempts to commit, or abets the commission of any offences under sections 153A and 153B of Chapter VIII and Chapters XV, XVI, XVII & XXII of the Indian Penal Code, 1860 (Central Act 45 of 1860), or any offences under the provision of the Arms Act, 1959 (Central Act 54 of 1959), or the Explosives Substances Act, 1908 (Central Act 6 of 1908),-- (i) Punishable with five or more years of imprisonment of any type, or; (ii) With less than five years of imprisonment of any type, except those punishable with less than one year of imprisonment; or (iii) Such offences under any other law for the time being inforce, coming under item (i) or (ii) as may be notified by the Government, from time to time.” (underline supplied) As seen from the extracted definition, the offences brought within the scope of the expression "rowdy" under the Act are not only offences punishable under Sections 153A and 153B of Chapter VIII and the offences in Chapters XV, XVI, XVII and XVIII of IPC, but also offences relating to attempt to commit or abets the commission of any such offences. The detenu has no case that the offence punishable under Section 365 IPC is not an offence that falls under Chapter XVI IPC which is brought within the scope of the definition of “rowdy”. In other words, it is fallacious to contend that the offence punishable under Section 511 of Section 365 IPC does not fall within the scope of the expression "rowdy". In other words, it is fallacious to contend that the offence punishable under Section 511 of Section 365 IPC does not fall within the scope of the expression "rowdy". As noted, the argument in respect of Crime No.744 of 2024 is that the allegations against the detenu in the said case do not satisfy the definition of “criminal intimidation” to attract the offence punishable under Section 506 Part II. The question whether the allegations against the detenu would satisfy the definition of “criminal intimidation” is one to be decided by the court trying the case and not the detaining authority. As far as the detaining authority is concerned, the question to be considered is whether the detenu has been found to have committed any offence mentioned in clause (t) of Section 2 of the Act on investigation by a competent police officer. The contentions of the learned counsel that Crime Nos. 571 of 2022 and 744 of 2024 in which the detenu was involved ought not have been considered by the detaining authority for the purpose of issuing the detention order, in the circumstances, is only to be rejected and we do so. 7. The next contention of the learned counsel for the petitioner is that only those prejudicial activities which fall within the previous seven years as calculated from the date of the order of detention, alone could be taken note of for the purpose of issuing an order of detention. It was pointed out by the learned counsel that two cases namely, Crime Nos.2624 of 2016 of Kayamkulam Police Station and 1425 of 2016 of Kilimanoor Police Station considered for issuing the order of detention, were cases reported beyond seven years. According to the learned counsel, the order of detention is vitiated on account of non-application of mind for that reason as well. According to the learned counsel, the order of detention is vitiated on account of non-application of mind for that reason as well. Sub- Section (2) of Section 13 of the Act reads thus: “(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) at least in 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.” Sub-Section (2) of Section 13 of the Act is the provision that confers jurisdiction on the detaining authority to detain again, a person who was detained under the Act and released on expiry of the duration of the period of detention. Clause (ii) of sub- Section (2) of Section 13 makes it clear that while issuing subsequent detention orders, the detaining authority is empowered to consider not only those facts which came to his notice after the issuance of the earlier order of detention, but also, previously known facts. The said aspect has been clarified by this Court in Aswathy v. State of Kerala, 2019 (5) KHC 436 . The relevant portion of paragraph 17 of the said judgment reads thus: “x x x x x x x Though S.13 has been captioned as 'Revocation of detention order', sub- section (2) of S.13 provides that revocation or expiry of a detention order shall not be a bar for the issuance of another order against the same person, if he continues to be a person falling within the definition of known rowdy or known goonda. The title/caption given to the Section is misleading inasmuch as the provision not only deals with revocation, but also provides for issuance of further detention orders. In such circumstances, one need not place much reliance on the title/caption of the Section. S.13(2) envisages passing of fresh detention orders, if the person continues to fall under S.2(o) or S.2(p). S.13(2)(ii) enables the detaining authority to consider 'previously known facts' along with the crime/crimes committed after issuance of the earlier detention order, in order to issue another detention order under S.3. Therefore, for an objective consideration as to whether a person falls under S.2(o) or 2(p), the detaining authority indeed can consider the entire criminal history including all previous criminal cases in which the person is/was involved. Such advertence to previously known facts will not vitiate the subsequent subjective satisfaction arrived at by the authority on the requirement of passing a detention order, based on crimes which the authority takes into account for that purpose. In the present case, though the detaining authority has noted the offence under S.302 IPC in which the detenu was involved earlier, the said crime has not anchored the detention order. The argument of the petitioner in this regard is, therefore,unsustainable. ” (underline supplied) Needless to say, the detenu cannot be heard to contend that the order is vitiated on account of non-application of mind by reason of the consideration of the said two cases. 8. The next contention of the learned counsel for the petitioner is that he is entitled to be furnished the reasons, on the basis of which two earlier orders of detention issued against the detenu have been revoked, and inasmuch as those reasons were not furnished to him, he is deprived of his right under Article 22(5) of the Constitution to prefer an effective representation against the order of detention. The detenu has been provided with copies of the orders revoking the earlier detention orders. His grievance is only that the reasons, on the basis of which those orders were issued, have not been furnished to him. The detenu does not dispute the fact that it is based on the opinion given by the Advisory Board that the earlier orders of detention are revoked by the Government. In other words, the reasons for revocation of the earlier orders are contained in the opinion of the Advisory Board. The detenu does not dispute the fact that it is based on the opinion given by the Advisory Board that the earlier orders of detention are revoked by the Government. In other words, the reasons for revocation of the earlier orders are contained in the opinion of the Advisory Board. In the light of Section 10(3) of the Act which provides that the opinion of the Advisory Board shall be confidential, the detenu is not entitled to be furnished a copy of the opinion given by the Advisory Board. In other words, the detenu cannot be heard to contend that he is entitled to be furnished the reasons for revocation of the earlier orders of detention. 9. The next contention of the learned counsel for the petitioner is that the detenu being only a person classified as a “known rowdy”, his activities cannot be referred to as anti- social activities as defined under Section 2(a) of the Act and the finding to that effect in the detention order shows serious non- application of mind. The basis of the argument is that while the definition of “goonda” contained in Section 2(j) of the Act refers to the activities of a goonda as anti-social activities, the definition of “rowdy” contained in Section 2(t) of the Act does not refer to the activities of a rowdy as anti-social activities. The basis of the argument is that while the definition of “goonda” contained in Section 2(j) of the Act refers to the activities of a goonda as anti-social activities, the definition of “rowdy” contained in Section 2(t) of the Act does not refer to the activities of a rowdy as anti-social activities. Section 2(a) of the Act which defines “anti-social activity” reads thus: “(a) ''anti-social activity'' means acting in such manner as to cause or likely to cause, directly or indirectly, any feeling of insecurity, danger or fear among the general public or any section thereof, or any danger to the safety of individuals, safety of public, public health or the ecological system or any loss or damage to public exchequer or to any public or private property or indulges in any activities referred inclauses (c), (e), (g), (h), (i), (l), (m), (n), (q) and (s) of this section.” Even though Section 2(a) of the Act which defines “anti-social activity” does not recite that anti-social activity includes the activities of a goonda or rowdy as defined under the Act, it could be seen that the activities which qualify a person to be regarded as a goonda or a rowdy are certainly activities which are brought under the definition of “anti-social activity” for, the words, more specifically the words “acting in such manner as to cause or is likely to cause, directly or indirectly, any feeling of insecurity, danger or fear …......” are exhaustive in nature. Any other interpretation would lead to the inference that even a gruesome murder committed broad day light in front of several persons would not cause any feeling of insecurity, danger or fear. In other words, the scheme of the statute is that the activities of both “goonda” and “rowdy” are anti-social activities which would fall under the definition of “anti-social activity” as contained in the statute. In other words, the scheme of the statute is that the activities of both “goonda” and “rowdy” are anti-social activities which would fall under the definition of “anti-social activity” as contained in the statute. It is relevant in this context to refer to sub-section (1) of Section 3 of the Act which reads thus: “(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” The scheme aforesaid of the statute is reflected from the quoted provision also, wherein the activities of both “known goonda” and “known rowdy” are referred to collectively as anti- social activities. 10. The next contention of the learned counsel for the petitioner is that the detenu has been ordered to be detained for the maximum period provided for under the Act and no reason whatsoever, is stated for detaining the detenu for the maximum period. According to the learned counsel, the order is vitiated for non-application of mind on that ground also. It is seen that an identical contention which was raised by a detenu under the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 containing pari materia provisions, has been rejected by the Apex Court in Vijay Kumar v. Union of India and Others, 1988 KHC 924. Paragraph 29 of the said judgment reads thus: “29. The last point that has been urged on behalf of the appellant is that the Government has not applied its mind while confirming the detention of the appellant for the maximum period of one year from the date of detention as prescribed in S.10 of the Act. It is submitted that some reason should have been given why the maximum period of detention is imposed on the appellant. This contention, in our opinion, is devoid of any merit. S.10 of the Act provides, inter alia, that the maximum period for which any person may be detained in pursuance of any detention order shall be a period of one year from the date of detention or the specified period. This contention, in our opinion, is devoid of any merit. S.10 of the Act provides, inter alia, that the maximum period for which any person may be detained in pursuance of any detention order shall be a period of one year from the date of detention or the specified period. S.10 does not provide that in imposing the maximum period of detention, any reason has to be given. In confirming the order of detention, it may be reasonably presumed that the Government has applied its mind to all the relevant facts and, thereafter, if it imposes the maximum period of detention, it cannot be said that the Government has not applied its mind as to the period of detention. In any event, under S.11 of the Act, a detention order may, at any time, be revoked or modified by the Government. In the circumstances, we do not think that the detenu was in the least prejudiced or that there has been non application of mind by the Government to the question of period of detention of the detenu. This contention of the appellant also fails. No other point has been urged in this appeal.” 11. The last contention of the learned counsel for the petitioner is that there has been considerable delay on the part of the Government in disposing of Ext.P6 representation preferred by the detenu against the order of detention. It was pointed out that Ext.P6 representation was one filed by the detenu as early as on 25.10.2024 and the same was disposed of by the Government only on 26.11.2024. It is seen from the materials that when the representation of the detenu was received by the Government, the matter was pending consideration before the Advisory Board. As such, the representation has been forwarded by the Government to the Advisory Board. It is also seen that the report of the Advisory Board has been received by the Government on 07.11.2024 and the order of detention was confirmed by the Government immediately thereof. It is thereafter that the representation of the detenu dated 25.10.2024 has been rejected by the Government on 26.11.2024. The conduct of the Government in forwarding the representation preferred by the detenu to the Advisory Board cannot be faulted with, in the light of the decision of the Apex Court in Golam Biswas v. Union of India and Another, 2015 KHC 5588. The conduct of the Government in forwarding the representation preferred by the detenu to the Advisory Board cannot be faulted with, in the light of the decision of the Apex Court in Golam Biswas v. Union of India and Another, 2015 KHC 5588. There is no constitutional mandate, much less, any statutory requirement to consider the representation of the detenu before confirmation of the order of detention on receiving opinion of the Advisory Board. The requirement under law is only that the representation should be considered expeditiously [See K.M.Abdulla Kunhi and B.L. Abdul Khader v. Union of India and others, 1991 KHC 897]. As noted, in the case on hand, the representation was disposed of immediately after the confirmation order. It is seen that the order of detention was confirmed on 07.11.2024 and the representation was disposed of on 26.11.2024. It cannot, therefore, be said that the representation has not been disposed of expeditiously. The writ petition, in the circumstances, is without merits and the same is accordingly dismissed.