Ahammed Afsal v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE A.HARIPRASAD FRIDAY, THE 20TH DAY OF MAY 2016/20TH VAISAKHA 1938 ## **WP(Crl.).No. 110 of 2016 (S)** ## PETITIONER: AHAMMED AFSAL, AGED 34 YEARS, S/O.FAKRDDEN, SUHAIL MANZIL, HIDAYATH NAGAR, P.O.UPPLA, KASARAGOD. BY ADVS.SRI.C.RAJENDRAN SRI.K.R.RANJITH ## RESPONDENTS: 1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA (HOME DEPARTMENT), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. DISTRICT MAGISTRATE KASARAGOD DISTRICT - 671 121. 3. THE DISTRICT POLICE CHIEF KASARAGOD DISRICT - 671 121. 4. THE SUB INSPECTOR OF POLICE MANJESWARAM, KASARAGOD DISTRICT - 671 323. 5. THE SUPERINTENDENT CENTRAL PRISON, KANNUR, KANNUR DISTRICT - 670 003. 6. THE SUPERINTENDENT CENTRAL PRISON, VIYOOR, THRISSUR - 680 010. R1,R 3 BY DIRECTOR GENERAL OF PROSECUTION SRI.ASAF ALI SENIOR GOVERNMENT PLEADER SMT.KOCHUMOL KADAVATH THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 20.05.2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## WP(Crl.).No. 110 of 2016 (S) ## **APPENDIX** ## PETITIONER'S EXHIBITS: - EXT.P1. COPY OF THE DETENTION ORDER DATED 23/01/2016 SERVED ON TO THE DETENU. - EXT.P2. COPY OF THE GROUNDS FOR PASSING EXT.P1 ORDER SERVED ON THE DETENU. - EXT.P3. COPY OF THE REPORT OF THE 3RD RESPONDENT SERVED ON THE DETENU DATED 07/01/2016. - EXT.P4. COPY OF THE MEMO FOR EXECUTING THE ORDER OF DETENTION DATED 23/01/2016 SERVED ON THE DETENU. - EXT.P5. COPY OF THE JAIL ADMISSION AUTHORISATION DATED 23/01/2016 SERVED ON THE DETENUE. - EXT.P6. COPY OF THE F.I.R. ALONG WITH F.I.S. IN CRIME NO. 484/2010 OF MANJESWARAM POLICE STATION SERVED ON THE DETENU. - EXT.P7. COPY OF THE REPORT IN CRIME NO.484/2010 DATED 24/06/2010 SERVED ON THE DETENU. - EXT.P8. COPY OF THE REPORT IN CRIME NO.484/2010 DATD 31/07/2010 SERVED ON THE DETENU. - EXT.P9. COPY OF THE FINAL REPORT IN CRIME NO.484/2010 OF MANJESWARAM POLICE STATION SERVED ON THE DETENU. - EXT.P10. COPY OF THE FIR ALONG WITH FIS IN CRIME NO. 231/2011 OF MANJESWARAM POLICE STATION DATED 25/03/2011 SERVED ON THE DETENU. - EXT.P11. COPY OF THE REPORT IN CRIME NO. 231/2011 OF MANJESWARAM POLICE STATION DATED 25/03/2011 SERVED ON THE DETENU. - EXT.P12. COPY OF ANOTHER REPORT IN CRIME NO.231/2011 OF MANJESWARAM POLICE STATION DATED 25/03/2011 SERVED ON THE DETENU. - EXT.P13. COPY OF THE REPORT IN CRIME NO.231/2011 OF MANJESWARAM POLICE STATION DATED 6/6/2011 SERVED ON THE DETENU. - EXT.P14. COPY OF THE FINAL REPORT IN CRIME NO.231/2011 OF MANJESWARAM POLICE STATION DATED 06/06/2011 SERVED ON THE DETENU. - EXT.P15. COPY OF THE FIR ALONG WITH FIS IN CRIME NO.761/2013 OF VIDYANAGAR POLICE STATION DATED 16/12/2013 SERVED ON THE DETENU. - EXT.P16. COPY OF THE FINAL REPORT IN CRIME NO.761/2013 OF VIDYANAGAR POLICE STATION DATED 31/07/2013 SERVED ON THE DETENU. - EXT.P17. COPY OF THE FIR ALONG WITH FIS IN CRIME NO.749/2015 OF MANJESWARAM POLICE STATION DATED 16/12/2013. - EXT.P18. COPY OF THE FIR IN CRIME NO.198/2014 OF MANJESWARAM POLICE STATION DATED 18/03/2014 SERVED ON THE DETENU. - EXT.P19. PHOTOCOPY OF THE REPRESENTATION SUBMITTED BY THE DETENU DATED 06/02/2016 SERVED ON THE DETENU. EXT.P20. COPY OF THE ORDER REJECTING THE REPRESENTATION DATED 18/02/2016 WHICH WAS SERVED ON THE DETENU ON 27/02/2016. ## RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ ## **K.T.SANKARAN & A. HARIPRASAD, JJ.** **---------------------------------------------------W.P.(Crl) No.110 of 2016 (S)** **---------------------------------------------------Dated this the 20[th] day of May, 2016** ## **JUDGMENT** ## **K.T.Sankaran, J.** Petitioner is the nephew of Mohammed Ali @ Ali @ Kasai Ali, who has been detained under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act (hereinafter referred to as 'the KAAPA'), as per Ext.P1 order of detention dated 23.1.2016 issued by the District Magistrate, Kasaragod. The order of detention was executed on 26.1.2016. The order of detention was confirmed on 14.3.2016. The order of detention as well as the continued detention of the detenu are under challenge in this Writ Petition. 2. Though various grounds have been raised in the Writ Petition, the learned counsel for the petitioner mainly contended that the continued detention of the detenu is illegal since many of the relied upon documents, copies of which were supplied to the detenu as Exts.P7, P8, P10, P11, P12 and P18, are illegible and ## **W.P.(Crl) No.110 of 2016 (S)** :: 2 :: unreadable. The aforesaid exhibits produced along with the Writ Petition are the copies served on the detenu and those documents contain the original seal certifying as true copies. There is no case for the respondents that Exts.P7, P8, P10, P11, P12 and P18 are not the copies served on the detenu. 3. We have perused Exts.P7, P8, P10, P11, P12 and P18. Those documents are not readable in full. Many of the portions of those documents are illegible. ## 4. In **Smt.Shalini Soni v. Union of India and others (AIR** **1981 Supreme Court 431)** , the Supreme Court held that the Constitution and the statute cast a duty on the detaining authority to communicate the grounds of detention to the detenu. The 'grounds' must be self-sufficient and self explanatory. In our view copies of documents to which reference is made in the 'grounds' must be supplied to the detenu as part of the 'grounds'. ## 5. In **Khudiram Das v. The State of West Bengal and** **others [(1975) 2 SCC 81]** , the Supreme Court held that all the basic ## **W.P.(Crl) No.110 of 2016 (S)** :: 3 :: facts and particulars which influenced the detaining authority in arriving at the requisite satisfaction leading to the making of the order of detention must be communicated to the detenu, so that the detenu may have an opportunity of making an effective and meaningful representation against the order of detention. 6. The expression “communicate to such person the grounds on which the order has been made” in Article 22(5) of the Constitution of India was considered by the Supreme Court in various decisions. If the copies of documents supplied to the detenu are illegible, it cannot be said that the information contained in those documents were communicated to him. The communication of the relied upon documents is required to enable the detenu to make an effective and meaningful representation. Non-supply of legible copies would make the order of detention illegal and continued detention of the detenu unauthorised. See **Bhupinder Singh v. Union of India and others [(1987) 2 SCC 234]** , **Manjit Singh Grewal @ Gogi v. Union of India and others (1990 (Supp) SCC 59)** , **Lallubhai Jogibhai Patel v. Union of India and others [(1981)2 SCC 427]** , **Icchu Devi Choraria v. Union of India and** ## **W.P.(Crl) No.110 of 2016 (S)** :: 4 :: ## **others [(1980) 4 SCC 531 = AIR 1980 SC 1983]** and **Shalini Soni v. Union of India and others (AIR 1981 SC 431)** . 7. In W.P.(Crl.) No.458 of 2015 another Division Bench, in which one of us was a member, held thus : _“_ Under Section 7(2) of the KAAPA, the grounds of detention as well as copies of the relied upon documents shall be supplied to the detenu within five days of detention and he shall also be informed in writing, of his right to represent to the Government and before the Advisory Board against his detention. The detaining authority gets five days' time to supply documents to the detenu after a person is detained and his liberties are curtailed. It is idle for the respondents to contend that the copies of documents supplied to the detenu are somewhat readable or he could gather the idea or certain inference could be made on going through the illegible copies. Before deciding to detain a person, the authorities concerned should make sure that their machinery should be utilised to conform to the legislative as well as the constitutional mandate with respect to the preventive detention. No excuse in that regard can be entertained by the court.” ## **W.P.(Crl) No.110 of 2016 (S)** :: 5 :: 8. It is true that very serious allegations are raised against the detenu and the crimes registered against him are for very serious offences. But, that is not a ground to hold that the continued detention of the detenu is not illegal, in spite of the fact that copies of many of the documents supplied to him are illegible. ## 9. In **Icchu Devi Choraria v. Union of India and others** **[(1980) 4 SCC 531 = AIR 1980 SC 1983],** the Supreme Court held thus: “3. ..... We may point out straightway that we are not at all happy at the thought that our order may have resulted in setting free a possible smuggler. We are not unmindful of the fact that the COFEPOSA Act has been enacted for the purpose of eradicating the evil of smuggling which is eating into the vitals of the nation like a cancerous growth and eroding the economic stability of the country and when an order in made by the Court releasing a person detained under this Act, it is quite possible that the effect of the order may be to let loose on the society, a smuggler who might in all probability, resume his nefarious activities causing incalculable mischief and harm to the economy of the ## **W.P.(Crl) No.110 of 2016 (S)** :: 6 :: nation. But at the same time we cannot forget that the power of preventive detention is a draconian power justified only in the interest of public security and order and it is tolerated in a free society only as a necessary evil. The power to detain without trial is an extraordinary power constituting encroachment on personal liberty and it is the solemn duty of the Courts to ensure that this power is exercised strictly in accordance with the requirements of the Constitution and the law. The courts should always lean in favour of upholding personal liberty, for it is one of the most cherished values of mankind. Without it life would not be worth living. It is one of the pillars of free democratic society. Men have rightly laid down their lives at its altar in order to secure it, protect it and preserve it. The Constitution has therefore, while conceding the power of preventive detention, provided procedural safeguards with a view to protecting the citizen against arbitrary and unjustified invasion of personal liberty and the courts have always zealously tried to uphold and enforce these safeguards. This Court has also through its judicial pronouncements created various legal bul-works and breakwaters into the vast powers conferred on the executive by the laws of preventive detention prevalent at different points of time. It is true that sometimes even a smuggler may be able to secure his release from detention if one of the ## **W.P.(Crl) No.110 of 2016 (S)** :: 7 :: safeguards or requirements laid down by the Constitution or the law has not been observed by the detaining authority but that can be no reason for whittling down or diluting the safeguards provided by the Constitution and the law. If the detaining authority wants to preventively detain a smuggler, it can certainly do so, but only in accordance with the provisions of the Constitution and the law and if there is a breach of any such provision, the rule of law requires that the detenu must be set at liberty, however wicked or mischievous he may be. The law cannot be subverted, particularly in the area of personal liberty, in order to prevent a smuggler from securing his release from detention, because whatever is the law laid down by the courts in the case of a smuggler would be equally applicable in the case of preventive detention under any other law. This court would be laying down a dangerous precedent if it allows a hard case to make bad law. We must, therefore, interpret the provisions of the Constitution and the law in regard to preventive detention without being in any manner trammelled by the fact that this is a case where a possible smuggler is seeking his release from detention.” 10. In the present case, the constitutional safeguards under Article 22(5) of the Constitution as well as the statutory safeguards ## **W.P.(Crl) No.110 of 2016 (S)** :: 8 :: under Section 7(2) of the KAAPA have been infringed. Therefore, the continued detention of the detenu is illegal. For the aforesaid reasons, we allow the Writ Petition and hold that the continued detention of the detenu, namely, Mohammed Ali @ Ali @ Kasai Ali, is illegal. He shall be set at liberty forthwith unless his detention is required in connection with any other case. The Registry will communicate the gist of the judgment to the Superintendent of Jail, Central Prison, Viyyur for compliance forthwith. **K.T.SANKARAN Judge** ## **A. HARIPRASAD** ## **Judge** ahz/