Anju C Ravi v. State of Kerala & Others

**CR** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS TUESDAY, THE 10[TH] DAY OF JANUARY 2023 / 20TH POUSHA, 1944 WP(CRL.) NO. 1040 OF 2022** ## **PETITIONER** ANJU C RAVI AGED 29 YEARS W/O SANJU, VILAYIL HOUSE, VEDARAPLAVU P.O., CHARUMMOODU, ALAPPUZHA DISTRICT -690505 BY ADVS. C.RAJENDRAN R.S.SREEVIDYA ## **RESPONDENTS** |1|STATE OF KERALA| |---|---| ||REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT,| ||THIRUVANANTHAPURAM-695001| |2|ADDL. CHIEF SECRETARY (HOME),| ||GOVERNMENT OF KERALA, SECRETARIAT,| ||THIRUVANANTHAPURAM-695001| |3|THE DISTRICT MAGISTRATE,| ||CIVIL STATION, COLLECTORATE, ALAPPUZHA- 688001| |4|DISTRICT POLICE CHIEF,| ||OFFICE OF THE DISTRICT POLICE CHIEF ALAPPUZHA,| ||ALAPPUZHA DISTRICT-688012| |5|STATION HOUSE OFFICER,| ||NOORANADU POLICE STATION, ALAPPUZHA DISTRICT-690| ||504| WP(Crl).1040/2022 2 6 THE SUPERINTENDENT CENTRAL PRISON, POOJAPPURA, THIRUVANANTHAPURAM-695 012 7 THE SUPERINTENDENT, CENTRAL PRISON, VIYYUR, THRISSUR- 680 010 BY SRI. K.A.ANAS-GP THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 10.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(Crl).1040/2022 3 # **CR ALEXANDER THOMAS & SOPHY THOMAS, JJ.** --------------------------------------------------------- ## W.P.(Cr). 1040 of 2022 ----------------------------------------Dated this the 10[th] day of January, 2023 ## **JUDGMENT** ## _Alexander Thomas, J._ The prayers in the afore-captioned Writ Petition (Criminal), seeking for a writ of Habeas Corpus and Certiorari, in regard to the challenge against the detention order issued against the detenu, under the Kerala Anti-Social Activities (Prevention) Act, (KAA(P)A), is as follows: _“(i) To issue a writ in the nature of Habeas Corpus or any other Appropriate writ, order or direction compelling and commanding the respondents to produce the detenu before the Honourable Court and quash the Ext.P1 detention order which was approved and confirmed, order confirming the detention order, the order disposing the detention order are liable to be quashed and to set the detenu at liberty._ _(ii) Petitioner also prays that this Hon'ble Court may be pleased to dispense with the translation of the documents produced in the vernacular language._ _(iii) To grant such other reliefs prayed for by the petitioner in the interest of justice.”_ 2. Heard Sri.C.Rajendran, learned Advocate instructed by Smt.R.S.Sreevidya, learned counsel appearing for the petitioner and Sri.K.A.Anas, learned Public Prosecutor appearing for the respondents. 3. The petitioner herein is the wife of the detenu involved in this case. In the instant case, the 4[th] respondent/District Police Chief, WP(Crl).1040/2022 4 who is the sponsoring authority, has given reports to the 3[rd] respondent/District Magistrate, the authorized detaining authority, stating that, in view of the factual aspects stated therein, steps may be taken by the 3[rd] respondent to issue orders under Sec. 3(1) of KAA(P)A to preventively detain the detenu, as otherwise, he is likely to commit prejudicial anti-social activities. The 3[rd] respondent/District Magistrate has issued Ext.P1 detention order dated 14.7.2022 under Sec. 3(1) of the Act, ordering that, in view of the factual aspects stated therein, the detenu is ordered to be detained in order to prevent him from committing further prejudicial anti-social activities. 4. Ext.P1 detention order dated 14.7.2022 was executed by the arrest and detention of the detenu on 18.7.2022. The competent authority of the 1[st] respondent/State Government in the Home Department has issued orders, as per Ext.P4, approving Ext.P1 detention order on 30.7.2022 whereby it has been ordered that six months' validity period of Ext.P1 detention order will be upto 17.1.2023. Thereafter, the competent authority of the State Government in the Home Department has referred the matter to the statutory Advisory Board for their considered opinion on 6.8.2022. The Advisory Board has given report to the 1[st] respondent/State on 19.9.2022 recommending that, in view of the facts stated therein, there is sufficient cause for the WP(Crl).1040/2022 5 preventive detention of the detenu as per Ext.P1. Thereupon, the respondent/State in the Home Department has issued Ext.P7 G.O. (Rt).No.2666/2022/Home dated 27.9.2022 confirming Ext.P1 detention order dated 14.7.2022 under Sec. 10(4) of the Act. 5. In the instant case, the eight crimes, in which the detenu has been involved, has been reckoned for the purpose of Ext.P1 detention order. The details of the said eight cases are contained in Ext.P1 and the same has also been reiterated in para 6, pages 5 to 10 of the counter affidavit dated 1.12.2022 filed by the 1[st] respondent/State. The last such crime in which the detenu has been involved is Crime No.391 of 2022 of Valancherry Police Station, Thrissur district, which is said to have been committed on 2.7.2022 and the FIR has been registered on 3.7.2022. In that case, the detenu has been arrested on 3.7.2022 and he was under judicial remand. It was when the detenu was under judicial remand, in regard to his involvement in the last crime, that Ext.P1 detention order dated 14.7.2022 has been passed by the 3[rd] respondent. The details of the reports filed by the 4[th] respondent/sponsoring authority, which led to the issuance of Ext.P1 detention order by the 3[rd] respondent, are as follows : 6. Initially, the 4[th] respondent had given a report on 23.2.2022 to the 3[rd] respondent/detaining authority, recommending for the WP(Crl).1040/2022 6 issuance of the preventive detention order. It is thereafter that the last and eighth crime is said to have been committed on 25.6.2022 which has been reported on 2.7.2022 and in which FIR has been registered on 3.7.2022. Since the detenu was arrested and remanded for the last crime on 3.7.2022, the 4[th] respondent has given yet another report in the matter to the 3[rd] respondent on 7.7.2022. It is after consideration of these three reports of the 4[th] respondent that the 3[rd] respondent/detaining authority issued Ext.P1 detention order on 14.7.2022. It appears that various statutory guidelines have not been complied with by the respondent in the issuance of Ext.P1. 7. Learned counsel for the petitioner has raised two grounds; the first contention is that, indisputably the detenu was under judicial remand and custody at the time of issuance of Ext.P1 detention order and the relevant permissible parameters for consideration of preventive detention order, in case the detenu is already under judicial remand, has not been observed and fulfilled in this case and therefore, interference is required by this Court. 8. The second contention urged by the petitioner is that, some of the crucial factual aspects stated in Ext.P1 detention order that the detenu would fulfill the parameters of “known rowdy” under Sec. 2(p) (iii) by taking into account all the eight crimes, is factually wrong and it WP(Crl).1040/2022 7 clearly shows non-application of mind by the 3[rd] respondent detaining authority, which would require interference by this Court etc. 9. These contentions of the petitioner are strongly opposed by the learned Public Prosecutor. Instead of reiterating the rival submissions, we will deal with the contentions. ## Contention (a) 10. The first contention is, indisputably that the detenu was under judicial remand and custody since 3.7.2022, with regard to his involvement in the last and eighth crime. Further that, the detenu has not secured bail in that case and he continued to be under judicial remand and custody even at the time of issuance of Ext.P1 detention order dated 14.7.2022 and the permissible relevant parameters for consideration as to whether such a detenu, who is already under judicial custody, should again be subjected to preventive detention, has not been observed in this case. 11. The legal issue on the above subject matter is well settled. The well settled law on the above subject is to the effect that a preventive detention order can be validly passed against a person, who is already in judicial custody and for that purpose, it is necessary that the grounds of detention must show that, (i) the detaining authority is aware of the fact that the detenu is already under detention and (ii) there are compelling WP(Crl).1040/2022 8 reasons to justify such preventive detention, despite the fact that the detenu is already in judicial custody. The expression “compelling reasons” in the above context would be that there must be sufficient cogent materials 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 antecedent activities of the detenu, it is likely that after release from custody, he would further indulge in prejudicial activities and therefore, it is necessary to detain him, in order to prevent him from engaging in such prejudicial activities. [Refer Dharmendra Suganchand Chelawat v. Union of India and Others ((1990) 1 SCC 746) para 21, Kamarunnissa v. Union of India ((1991) 1 SCC 128), Abdul Sathar Ibrahim Manik v. Union of India and Others ((1992) 1 SCC, 1) para 4, Union of India and Anr. v. Dimple Happy Dhakad (AIR 2019 SC 3428), Union of India v. Ankit Ashok Jalan ((2020) 16 SCC 185) para 11] 12. It is common ground that relevant portion of Ext.P1 detention order, which deals with the above said aspects, are contained in para 30, internal pages 28, 29 & 30 of Ext.P1 detention order, [see pages 42 to 44 of the paper book publication] and the same reads as follows : “ (30) ഈ കകേസസില്‍ അവസസാന നസിയമ വസിരുദ്ധ പ്രവൃതസി നടന്നതത് 26.06.2022 തതീയതസിയസിലസാണത്. എതസിര്‍കേകസികക്കെതസികരെ കകേരെളസാ സസാമൂഹഹ്യ വസിരുദ്ധ പ്രവര്‍തനങ്ങള്‍ തടയല്‍ നസിയമമം വകുപത് 3(1) പ്രകേസാരെമം നടപടസി WP(Crl).1040/2022 9 സസതീകേരെസിക്കുന്നതസികലയസായസി ജസിലസാ കപസാലതീസത് കമധസാവസി 23.02.2022 തതീയതസി ശുപസാര്‍ശസാ റസികപസാര്‍ടത് സമര്‍പസിചസിട്ടുള്ളതസാണത്. ടസി ശുപസാര്‍ശസാ സമര്‍പസിച സമയമം എതസിര്‍കേകസി ജു ഡതീഷഹ്യല്‍ കേസ്റ്റഡ സിയസില്‍ കേഴസിഞത് വന്നസിരുന്നതമം നടപടസിയസായസി പരെസിഗണസിചസിട്ടുള്ളതമസായ നൂറനസാടത് എക്സസസത് സകമം 05.2021 U/s 20(b)(I) (B) NDPS Act, നൂറനസാടത് പസി.എസത്. സകമം 72/2022 U/s 452, 294(b), 323, 506, 34 IPC എന്നതീ കകേസ്സുകേളസില്‍ ടസിയസാനത് ഉപസാധസികേകളസാകട ജസാമഹ്യമം ലഭസിചതസിനത് കശഷമം എതസിര്‍കേകസി ടസി കകേസസികന്റെ ജസാമഹ്യ ഉപസാധസികേള്‍ക്കുമം, നസാളസിതവകരെ സസതീകേരെസിചസിട്ടുള്ള സസാധഹ്യമസായ എലസാ മുല്‍കേരുതല്‍ നടപടസികേള്‍ക്കുമം യസാകതസാരു വസിലയമം കേല്‍പസിക്കെസാകത, 25/06/2022 തതീയതസി രെസാതസി 20.15 മണസികയസാടുകൂടസി മലപ്പുറമം ജസിലയസികല വളസാകഞ്ചേരെസി കപസാലതീസത് കസ്റ്റഷന്‍ പരെസിധസിയസില്‍ ഉള്‍കപട വളസാകഞ്ചേരെസി കടടൌണസില്‍ കവചത് ആലപ്പുഴ ജസിലയസില്‍ കേസായമംകുളമം പുതപള്ളസി കഗസാവസിന്ദമുടമം പസി.ഒ. യസില്‍ കകേസാലകശ്ശേരെസി വതീടസില്‍ കമസാഹന്‍ലസാല്‍ മകേന്‍ 34 വയസ്സുള്ള ശതീലസാല്‍ എന്നയസാകള ആകമസിചത് കകേസാലകപടുതസാന്‍ ശമസിചതസിനമം, ടസിയസാകന്റെ കേസാറമം മറത് മുതലുകേളമം ബലമം പ്രകയസാഗസിചത് എടുത്തു കകേസാണ്ടു കപസായതസിനമം എതസിര്‍കേകസിയമം മററ്റുുകമതസികരെ വളസാകഞ്ചേരെസി കപസാലതീസത് കസ്റ്റഷന്‍ സകമം 391/2022 U/s 342, 323, 324, 452, 384, 307, 506 r/w 34 IPC പ്രകേസാരെമം കകേസത് കൂടസി രെജസിസ്റ്റര്‍ കചെയസിട്ടുള്ളതമം ടസി കകേസസികലയത് ടസിയസാകന 03.07.2022 തതീയതസി അറസ്റ്റത് കചെയത് ജു ഡതീഷഹ്യല്‍ കേസ്റ്റഡസിയസില്‍ പസാര്‍പസിച്ചു വരുന്നതമസാണത്. ടസി കകേസത് നസിലവസില്‍ അകനസഷണസാവസ്ഥയസിലസാകണങസിലുമം ബഹ. കകേരെള സഹകക്കെസാടതസിയകട കസ്റ്റനസി അലയസാമ്മ സസാജു Vs കസ്്റത് ഓഫത് കകേരെള ആന്‍ ഡത് അകദേഴത് പ്രകേസാരെമം സഞ്ചേലന നസിയന്ത്രണമം/കേരുതല്‍ തടങല്‍ എന്നസിവയസായസി ശുപസാര്‍ശ കചെയ്യുകമസാള്‍ നസിലവസില്‍ അകനസഷണതസിലസിരെസിക്കുന്ന കകേസ്സുകേളമം പരെസിഗണസിക്കെസാമം എന്ന ഉതരെവസികന്റെ അട **സ** സാനതസിലസാണത് അകനസഷണസാവസ്ഥയസിലുള്ള ടസി കകേസത് കൂടസി എതസിര്‍കേകസിയ്കക്കെതസികരെയള്ള കേരുതല്‍ തടങല്‍ നടപടസിയസായസി പരെസിഗണസിചസിട്ടുള്ളതത്. നൂറനസാടത് എക്സസസത് സകമം 05.2021 U/s 20(b)(ii)(B) NDPS Act, നൂറനസാടത് പസി.എസത്. സകമം 72/2022 U/s 452, 294(b), 323, 506, 34 IPC ബഹ. എന്നതീ കകേസ്സുകേളസില്‍ കകേസാടതസികേളസില്‍ നസിനമം ടസിയസാനത് ഉപസാധസികേകളസാകടയസാണത് ജസാമഹ്യമം അനവദേസിചസിട്ടുള്ളകതങസിലുമം ജസാമഹ്യമം ലഭസിചതസിനത് കശഷവമം ടസിയസാന്‍ ജസാമഹ്യ വഹ്യവസ്ഥകേള്‍ക്കെത് യസാകതസാരു വസിലയമം കേല്‍പസിക്കെസാകത വതീണ്ടുമം കുറകൃതഹ്യതസില്‍ ഏര്‍കപടസിട്ടുള്ളതസിനസാലുമം, 2017 മുതലുള്ള ചുരുങ്ങസിയ കേസാലയളവസില്‍ തടര്‍ചയസായസി കഗടൌരെവതരെമസായ 11 ഓളമം കകേസ റ്റുുകേളസില്‍ പ്രതസിയസായസിട്ടുള്ള എതസിര്‍കേകസികയ അകമ പ്രവര്‍തനങ്ങളസില്‍ നസിനമം പസിനസിരെസിപസിക്കെസാന്‍ ടസി ജസാമഹ്യ വഹ്യവസ്ഥകേള്‍ ഫലപ്രദേമലസാകയനമം,. മുന്‍കകേസ്സുകേളസില്‍ ഉപസാധസികേകളസാകട ജസാമഹ്യമം ലഭസിചതസിനത് കശഷവമം ടസിയസാന്‍ വതീണ്ടുമം കുറകൃതഹ്യങ്ങളസില്‍ ഏര്‍കപടസിട്ടുള്ളതസിനസാലുമം ടസി നൂറനസാടത് എക്സസസത് സകമം 05.2021, നൂറനസാടത് പസി.എസത്. സകമം 72/2022 എന്നതീ കകേസ്സുകേളസികല ജസാമഹ്യ വഹ്യവസ്ഥകേള്‍ ടസിയസാകന അകമ പ്രവര്‍തനങ്ങളസില്‍ നസിനമം പസിനസിരെസിപസിക്കെസാന്‍ പരെഹ്യസാപ്തമസായസിടസിലസാകയനമം, WP(Crl).1040/2022 10 എതസിര്‍കേകസിയസായ സഞ്ചു @ സച്ചു നസിലവസില്‍ സസതീകേരെസിചസിട്ടുള്ള മുന്‍കേരുതല്‍ നടപടസികേള്‍ പരെഹ്യസാപ്തമകലന്നത് കതളസിയസിയമം വസിധമം തടര്‍നമം മറത് ജസിലകേളസിലുമം കഗടൌരെവതരെമസായ കകേസ്സുകേളസില്‍ പ്രതസിയസായസിട്ടുള്ളതസിനസാല്‍ എതസിര്‍കേകസിയ്കക്കെതസികരെ ശക്തമസായ മുന്‍കേരുതല്‍ നടപടസികേള്‍ സസതീകേരെസിചസികലങസില്‍ എതസിര്‍കേകസി തടര്‍നമം കഗടൌരെവതരെമസായ ആകമ പ്രവര്‍തനങ്ങളസില്‍ ഏര്‍കപടത് കപസാത ജനങ്ങളകട സമസാധസാന ജതീവസിതതസിനത് ഭമംഗമം വരുത്തുകമനമം ആയതസിനസാല്‍ സലവത് ലസിങത് നഷ്ടകപടസാകത എതസിര്‍കേകസിയസായ സഞ്ചു സച്ചുവസികനതസികരെ KAA(P)A നസിയമമം വകുപത് 3(1) പ്രകേസാരെമം എതയമം കവഗമം കേരുതല്‍ തടങല്‍ ഉതരെവത് പുറകപടുവസിചത്, കേരുതല്‍ തടങലസില്‍ പസാര്‍പസികക്കെണ്ടതത് ടസിയസാകന്റെ സസാമൂഹഹ്യ വസിരുദ്ധ പ്രവര്‍തനങ്ങകള തടയസിടുന്നതസിനത് അതഹ്യനസാകപകസിതമസാകണന്നത് എനസിക്കെത് ഉതമ കബസാധഹ്യമംവന്നസിട്ടുള്ളതസാണത്.” 13. The specific contention of Sri.C.Rajendran, the learned counsel appearing for the petitioner, is to the effect that though it is discernible from para 30 of Ext.P1 detention order that the 3[rd] respondent detaining authority is aware of the fact that the detenu was already arrested and remanded to judicial custody in regard to his involvement in the last and eighth crime since 3.7.2022, no where is it discernible therefrom that, based on cogent materials the detaining authority was fully satisfied that the detenu is likely to secure bail in that crime. Hence, it is submitted by the petitioner that though the fact regarding judicial remand was known to the detaining authority at the time of issuance of Ext.P1 and though it is also stated in para 30 of Ext.P1 that if released, the detenu is likely to engage in further prejudicial activities, no where is it stated that the detaining authority had some materials to take the view that the detenu was likely to secure WP(Crl).1040/2022 11 bail with regard to his last and eighth crime. It is thus urged by the counsel for the petitioner that all the three parameters should be satisfied and that the satisfaction of the second parameter as above is absent in this case and hence Ext.P1 detention order is liable for interdiction at the hands of this Court. This contention is strongly opposed by Sri.K.A.Anas, the learned Public Prosecutor, by placing reliance on the dictum laid down in para 35 of the decision of the Apex Court in **Union of India and Anr. v. Dimple Happy Dhakad (AIR 2019 SC 3428)** . 14. It is relevant to refer to paras 35 to 37 of the decision of the Apex Court in **Union of India and Anr. v. Dimple Happy Dhakad (AIR 2019 SC 3428)** which reads as follows: _“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”. 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, the Supreme Court held that the satisfaction of the_ WP(Crl).1040/2022 12 _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. 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 and other judgments and Guidelines No.24. The order of the High Court quashing the detention orders on those grounds cannot be sustained.”_ 15. In the facts of that case, the Apex Court has noted in para 35 of the above said decision, that from the records in that case the detaining authority was aware that the detenu is already in custody and that the bail application filed by the detenues was rejected by the Court. However, in that case, the detaining authority has not specifically recorded in the detention order that the “detenu is likely to be released” etc. But, the Apex Court has held that, merely because it is not specifically stated in the impugned detention order the “detenu's likelihood of being released on bail” etc, it cannot be said that the detaining authority has not applied its mind and that the lapse to recite in the detention order, that the detenu is likely to be released on bail, by WP(Crl).1040/2022 13 itself, will not vitiate the detention order. In that case, the Apex Court has noted that the detaining authority has clearly recorded the antecedents of the detenues and they have taken the view that the detenues in that case have high a propensity to commit such offences in the future. In para 36 thereof, the Apex Court had held that 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. Further, the Apex Court has also held, in para 36 thereof, that, in the light of the dictum laid down in _Senthamilselvi v. State of T.N. And Another ((2006) 5 SCC 676 : 2006 AIR SCW 4648),_ the satisfaction of the detaining 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. 16. Further, in para 37 thereof, the Apex Court has noted that the satisfaction of the detaining authority that the detenu may be released on bail cannot be _ipse dixi_ t of the detaining authority and on the facts and circumstances of the said case, the subjective satisfaction of the detaining authority, that the detenu is likely to be released on bail, is based on the materials and a reading of the grounds of detention clearly WP(Crl).1040/2022 14 indicates that the detenu has been indulging in smuggling gold and operating a syndicate, in coordination with others and is habitually committing the same, unmindful of the revenue loss and the impact on the economy of the nation. Further, the detention order, qua the other detenu, refers to the role played in receiving the gold and disposing of foreign origin smuggled gold through multiple jewellery outlets and his relatives. Hence, the Apex Court held, in para 37 thereof, that the High Court 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 _Kamarunnissa's case_ (supra) and other judgments. Accordingly, the impugned judgment of the High Court quashing the detention orders on those grounds, was interfered with. 17. In the instant case, the facts, as discernible from Ext.P1, would show that out of the 11 crimes, the detaining authority has taken into account 8 crimes in which the detenu has been involved as an accused and the first and second report of the 4[th] respondent were given to the 3[rd] respondent detaining authority, recommending a preventive detention order under Sec. 3(1) of the Act even before the commission of the last and eighth crime. The last and eighth crime was reported on WP(Crl).1040/2022 15 2.7.2022, in which FIR was registered on 3.7.2022. It is thereafter that the sponsoring authority has given the third and final report in the matter, which led to the issuance of Ext.P1 detention order on 14.7.2022. A reading of Ext.P1 order would indicate that the detenu has been involved consistently in many prejudicial activities, especially in the eight crimes which has been taken into account. More over, a careful reading of para 30 of Ext.P1 detention order would also disclose that the 3[rd] respondent detaining authority was well aware of the fact the detenu was already under detention. Further, the detaining authority has recited the factual details which would show that, in almost all the previous crimes, the detenu has secured bail and had violated the bail conditions with impunity, which led to the commission of the successive crimes concerned. Hence, the detaining authority has also opined that, the strict bail conditions, imposed in various previous cases, will not be sufficient to prevent the detenu from committing further prejudicial anti-social activities. All these factual aspects show the subjective satisfaction of the detaining authority that unless strict preventive detention orders and measures are taken, the detenu is again likely to involve in further prejudicial anti-social activities and therefore, his preventive detention under Sec. 3(1) of the Act is imperative. In the light of these aspects, we are of the view that the dictum laid down by the WP(Crl).1040/2022 16 Apex Court in para 35 of _Union of India and Anr. v. Dimple Happy Dhakad (AIR 2019 SC 3428)_ (supra) would apply and therefore, the mere absence of recital in the impugned Ext.P1 detention order, that the detenu is likely to secure bail etc., will not vitiate the proceedings. As held by the Apex Court, in para 36 of the above said decision, the satisfaction of the detaining authority to come to the conclusion that the likelihood of the detenu being released on bail and the likelihood of further committing prejudicial activities are all matters within the subjective satisfaction of the detaining authority, based on the facts and circumstances which are disclosed by the materials on record and normally, such subjective satisfaction need not be interfered with. The above said decision of the Apex Court in _Dimple Happy Dhakad's_ case (supra), has been relied on by the subsequent decision of the Apex Court in _Ankit Ashok Jalan's_ case _[(2020) 16 SCC 185]_ (supra), as can be seen from a reading of paras 11, 15 etc., thereof. Hence, we are not in a position to accede to the above said plea of the petitioner and the same stands overruled. ## Contention (b) 18. The second and last contention urged by the petitioner is to the effect that, he does not dispute the stand of the 3[rd] respondent detaining authority, in para 33 of Ext.P1, that the detenu has been WP(Crl).1040/2022 17 classified as a “known goonda”, as per Sec.2 (0)(ii) r/w Sec. 2(j) of the Act. But that, the 3[rd] respondent detaining authority has erred seriously in taking the stand, in para 29 of Ext.P1 detention order, that the detenue is also to be classified as “known rowdy”, as per Sec. 2(p)(iii) r/w Sec. 2(t) of the Act, by taking into account all the eight aforesaid crimes in question. The learned counsel for the petitioner would strongly urge that the above said statement of fact, recited in para 29 of Ext.P1, as if the detenue would also satisfy the definition of “known rowdy”, as per Sec. 2(p) (iii), by taking into account all the eight cases, is a factually wrong statement and it shows clear non-application of mind by the 3[rd] respondent and hence, the impugned detention order is liable to be interfered with. Such contention has been opposed by Sri.K.A.Anas, learned Public Prosecutor. 19. After hearing both sides, it is seen that the petitioner does not dispute the factual position stated in para 33 of Ext.P1, that the detenu is liable to be classified as “known goonda” as per Sec. 2(o) (ii) r/w Sec. 2(j) of the Act, by taking into account three out of the eight crimes, as the said three crimes are in relation to offences disclosed as per NDPS Act. Since the petitioner has no dispute regarding that, there is no necessity for us to examine the definitional parameters of “Known goonda” as per Sec. 2(0)(ii) r/w Sec. 2(j) of the Act. WP(Crl).1040/2022 18 ## 20. Para 29, (internal page 28) of Ext.P1 detention order reads as follows : “ (29) ജസിലസാ കപസാലതീസത് കമധസാവസി സമര്‍പസിച റസികപസാര്‍ടസില്‍ എതസിര്‍ കേകസികക്കെതസികരെ കകേരെള കപസാലതീസത് രെജസിസ്റ്റര്‍ കചെയത് വസിചെസാരെണയസിലസിരെസിക്കുന്ന 05 കകേസുകേളകടയമം, നൂറനസാടത് എക്സസസത് ഇന്‍കസ്പെക്ടര്‍ രെജസിസ്റ്റര്‍ കചെയത് വസിചെസാരെണയസിലസിരെസിക്കുന്ന 02 കകേസുകേളമം, അകനസഷണസാവസ്ഥയസിലുള്ള മലപ്പുറമം വളസാകഞ്ചേരെസി പസി.എസസികല 01 കകേസ്സുറ്റുുമം ഉള്‍കപകട 08 കകേസ കേളകട കേസാരെഹ്യ വസിവരെങ്ങള്‍, കേരുതല്‍ തടങല്‍ ഉതരെവസിനള്ള പരെസിഗണനക്കെസായസി സമര്‍പസിചസിട്ടുള്ളതസാണത്. ആയതസില്‍ NDPS Act, 1985 പ്രകേസാരെമുള്ള കകേസ റ്റുുകേള്‍ സുകവസാ-കമസാകടസാ രെജസിസ്റ്റര്‍ കചെയസിട്ടുള്ളതസാകണങസിലുമം, ടസി കകേസസികല സസാകസികേള്‍ സസതന്ത്ര വഹ്യക്തസികേള്‍ ആയതസിനസാല്‍ ടസി കകേസ്സുകേളമം ഉള്‍കപകട 08കേണക്കെസാക്കെസി ഉതരെവത് പുറകപചെടുവസിചസിട്ടുള്ളതസാണത്. കകേസുകേള്‍ പരെസിഗണസിചത് അറസിയകപടുന്ന കറടൌഡസി എന്നത്” 21. A reading of para 29 would clearly indicate that the 3[rd] respondent has only stated therein that orders have been previously issued by the authorities whereby the detenu has been classified as a “known rowdy”, by taking into account the aforesaid eight crimes. The statement in para 29 cannot be held to mean as if the 3[rd] respondent has taken the stand that the detenue is to be treated as a 'known rowdy”, as per the present proceedings in question. 22. However, to a specific query to the learned Public Prosecutor as to whether any such previous proceedings, either under Sec. 3(1) or under Sec. 15(1) of the Act, has been issued as against the detenu, treating him as a “Known rowdy” under Sec. 2(p)(iii) r/w Sec. 2(t) of the Act, we are told that, it is learnt that no such previous proceedings has WP(Crl).1040/2022 19 been issued as against the detenu. That being so, the factual statement recited in para 29 of Ext.P1 detention order, as if the respondent authorities had previously issued some proceedings classifying the detenu as “Known rowdy”, appears to be factually wrong. However, there is no dispute that the detenu would satisfy the definitional parameters of “Known goonda” as per Sec. 2(0)(ii) r/w Sec. 2(j) of the Act, when taking into account three out of the eight crimes, which are all in relation to the accused being involved in offences under the NDPS Act. Sec. 7 (4) of the KAA(P)A Act reads as follows : _“Sec.7 (4) The order of detention shall not be deemed to be invalid merely because one or more of the facts or circumstances cited among the grounds are vague, non-existent, irrelevant or invalid for any reason whatsoever and such order shall be deemed to have been made by the Government or the Authorised officer after having been satisfied about the need for detention with reference to the remaining facts and circumstances, provided that the minimum conditions for being classified as a known goonda or known rowdy are satisfied.”_ 23. Hence, even if the factually wrong statement in para 29 of Ext.P1 is eschewed, the impugned Ext.P1 detention order is liable to be sustained, in view of the provisions contained in Sec. 7(4) of the Act quoted herein above. Further, even if we assume that what was intended to be conveyed by the 3[rd] respondent in para 29 of Ext.P1 is that the detenu has to be classified as “Known rowdy”, even going by Ext.P1, still, we are of the view that Sec. 7(4) would sustain the validity of Ext.P1 order. Sec. 2(p) of the Act reads as follows : WP(Crl).1040/2022 20 _“Sec.2 (p) "known rowdy" means any person, who had been, by reason of acts done within the previous seven years as calculated from the date of the order imposing any restriction or detention under this Act,-_ - _(i) made guilty, by a competent court at least once for an offence of the nature under item (i) of clause (t) of section 2 or any offence notified as such under the said clause; or_ - _(ii) made guilty, by a competent court at least twice for any offence of the nature mentioned under item (ii) of clause (t) of section 2 or any offence notified as such under the said clause; or_ - _(iii) found on investigation or enquiry by a competent police officer or other authority, on complaints initiated by persons other than police officers, in three separate instances not forming part of the same transaction to have committed any offence mentioned in clause (t) of section 2:_ _Provided that any offence committed by a person,-_ - _(i) by virtue of his involvement as a member of the family or a close relative of the family in an incident which took place by reason of a family dispute or quarrel involving family members of close relatives on either side; or_ - _(ii) by virtue of his involvement as a neighbour or as a close relative of the neighbour in an incident which occurred due to a dispute between immediate neighbours; or_ - _(iii) by virtue of his involvement as an employee of any establishment in an incident which occurred in connection with a dispute between himself and the establishment with regard to the conditions of service; or_ - _(iv) as a member of the student community in a recognised educational institution, by virtue of his involvement, merely by his presence but without any overt act constituting the offence mentioned in clause (t) of section 2 without being involved in any criminal conspiracy facilitating the same, in an incident which occurred due to the general involvement of students of the institution in that particular incident; or_ - _(v) as a member of a recognised political party, by virtue of his involvement merely by his presence, but without any overt act constituting the offence mentioned in clause (t) of section 2 without being involved in any criminal conspiracy facilitating the same, in an incident which occurred due to the general involvement of the workers of that party in an agitation or protest or programme organised by the party with prior information given to the police officer or magistrate having jurisdiction; or_ - _(vi) by virtue of his involvement in a criminal act committed by him before he had attained the age of eighteen years,shall be omitted from the computation of the number of offences taken into account for deciding whether a person is a known rowdy;”_ WP(Crl).1040/2022 21 ## 24. Sec. 2(t) reads as follows : _“Sec.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 provisions 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 in force, coming under item (i) or (ii), as may be notified by the Government, from time to time.”_ 25. Assuming that para 29 of Ext.P1 is intended to convey as if the detenu is liable to be classified as a “Known rowdy” as per Sec. 2(p)(iii) r/w Sec. 2(t) of the Act, by taking into account all the eight crimes, the said statement is a partially wrong statement, inasmuch as three out of the eight crimes cannot be taken into account for reckoning as to whether the detenu is a “Known rowdy” or not, inasmuch as those three out of the eight crimes are in relation to NDPS offences, which will not come within the ambit of Sec. 2(p) and Sec. 2(t). However, going by the definitional parameters of Sec. 2(p)(iii) r/w Sec. 2(t), the remaining five out of the eight crimes, can be relied on for classifying the detenu as a “known rowdy” as per Sec. 2(p) r/w Sec. 2(t). Therefore, even if the statement in para 29 of Ext.P1, that all the eight crimes could be reckoned for the purpose of treating the detenu as a “Known rowdy”, is WP(Crl).1040/2022 22 not fully correct, there cannot be any dispute, that five out of the eight crimes could be pressed into service for treating the detenu as a “known rowdy” under Sec. 2(p)(iii) r/w Sec. 2(t). In that situation also, Sec. 7(4) would sustain the validity of Ext.P1 detention order, inasmuch as merely because the statement in para 29 of Ext.P1 is partially wrong, but partially correct, it cannot lead to a situation of making Ext.P1 detention order completely unsustainable. However, the heart of the matter is that the 3[rd] respondent need to only establish that the detenu should either be classified as a “Known rowdy” as per Sec. 2(p) r/w Sec. 2(t) of the Act or he should fulfil the definition of “Known goonda” as per Sec. 2(0) r/w Sec. 2(j) of the Act. In certain cases, like the present one, the detenu may satisfy both the classifications, i.e., he may satisfy both the requirements of “Known rowdy” and Known goonda”, though that is not fully necessary. Therefore, merely because the detenu in this case, has satisfied the definition of both “known goonda” and “known rowdy” and merely because there is a partial error in the statement contained in para 29 of Ext.P1, it will not make the detention order unsustainable and untenable in law, in view of Sec.7(4). 26. The scope and ambit of Sec. 7(4) of the Act has been considered by the Division Bench of this Court in **Jayalekshmi v. State of Kerala and Others (2015 KHC 961 : 2015 (4) KLT 942 :** WP(Crl).1040/2022 23 **2015 (4) KLJ 516).** The Division Bench has held in paras 18 and 19 of _Jayalekshmi's case_ (supra) that, under the KAA(P)A Act, even if one or more of the facts and circumstances cited among the grounds are vague, non-existent, irrelevant or invalid for any reason, whatsoever, that would not make the order of detention invalid and it shall be deemed that the detaining authority made the order of detention after having been satisfied about the need for detention with reference to the remaining facts and circumstances. It was held therein that, even if it is found that one or more of the cases on the basis of which the detenu is classified as a “known goonda” or known rowdy”, are found to be not within the purview of the cases coming within Clauses (0) or (p) thereof, the order of detention would not lapse or become irrelevant, provided sufficient number of cases to satisfy the definition of “known goonda” or “known rowdy” are still available against the detenu concerned. It is important to refer to the contents of paras 18 and 19 of the decision of the Division Bench of this Court in _Jayalekshmi's case_ (supra), which reads as follows : > _“18. To classify a person as 'known rowdy', the legal requirement is that the person concerned was found to have committed the offence mentioned in clause (t) of Section 2 in three separate instances. The objective test for classifying a person as 'known rowdy' is the availability of any one of the sub-clauses of clause (p) of Section 2. Even if the person concerned is involved in several crimes and it is found that some of the crimes do not come within the category of clause (p) of Section 2 and the cases satisfying the sub-clauses are sufficient to pass the objective test, the order of detention can be sustained. It cannot be said that all the cases in which the detenu is involved would constitute a single ground and if one of the cases_ WP(Crl).1040/2022 24 _fails, the whole grounds fail. Section 7(4) of the KAAPAprovides thus:_ _"7. Grounds of order of detention to be disclosed.-- xxxx xxxx xxxx_ _(4) The order of detention shall not be deemed to be invalid merely because one or more of the facts or circumstances cited among the grounds are vague, non- existent, irrelevant or invalid for any reason whatsoever and such order shall be deemed to have been made by the Government or the Authorised Officer after having been satisfied about the need for detention with reference to the remaining facts and circumstances, provided that the minimum conditions for being classified as a known goonda or known rowdy are satisfied."_ _19. Under the KAAPA, even if one or more of the facts or circumstances cited among the grounds are vague, non-existent, irrelevant or invalid for any reason whatsoever, that would not make the order of detention invalid and it shall be deemed that the detaining authority made the order of detention after having been satisfied about the need for detention with reference to the remaining facts and circumstances. The only restriction placed under Section 7(4) of the KAAPA is that the minimum conditions for classifying the person concerned as a 'known goonda' or 'known rowdy' should exist. Even if it is found that one or more of the cases on the basis of which the detenu is classified as a 'known goonda' or 'known rowdy' are found to be not within the purview of cases coming under clauses (o) or (p), the order of detention would not lapse or become irrelevant or stale or improper, provided sufficient number of cases to satisfy the definition of 'known goonda' or 'known rowdy', as the case may be, are still available against the detenu concerned. We are not inclined to accept the contention put forward by the learned counsel for the petitioner in this regard. “_ [See KHC ] 27. In the instant case, a reading of para 29 of Ext.P1 detention order makes it clear that the aspects stated therein are related to the facts and circumstances considered by the detaining authority and therefore, merely because there may be partial error in the facts stated therein, it will not, by itself, make the impugned preventive detention order liable for quashment, provided it is sustainable otherwise. 28. In view of the above aspects stated herein-above, we are of the view that the dictum laid down by the Division Bench of this Court in WP(Crl).1040/2022 25 paras 18 and 19 of _Jayalekshmi's case_ (supra) could be aptly invoked, in the facts and circumstances of this case. In the light of these aspects, we are constrained to overrule the second and the last contention of the petitioner as well. The outcome of the above discussion is that, the impugned detention order, in Ext.P1, does not deserve interdiction by this Court, in exercise of the powers of judicial review. Hence, the Writ Petition (Criminal) would stand dismissed. _Sd/-_ **ALEXANDER THOMAS JUDGE** _Sd/-_ **SOPHY THOMAS** **JUDGE** Mrcs WP(Crl).1040/2022 26 ## **APPENDIX OF WP(CRL.) 1040/2022** PETITIONER EXHIBITS Exhibit P1 A TRUE PHOTOCOPY OF THE DETENTION ORDER DATED 14/07/2022 ISSUED BY THE 3RD RESPONDENT Exhibit P2 A TRUE PHOTOCOPY OF THE LETTER ISSUED TO THE PETITIONER BY THE SUB INSPECTOR OF POLICE, VALLIKUNNAM STATING THAT THE DETENUE WAS ARRESTED ON 18/07/2022 AT 7.30 PM Exhibit P3 A TRUE PHOTOCOPY OF THE MEMO FOR EXECUTION OF ORDER OF DETENTION ISSUED BY THE DISTRICT MAGISTRATE DATED 14/07/2022 Exhibit P4 A TRUE PHOTOCOPY OF THE APPROVAL ORDER ISSUED BY THE ADDL. CHIEF SECRETARY (HOME) DATED 30/07/2022 Exhibit P5 A TRUE PHOTOCOPY OF THE ORDER DISPOSING THE REPRESENTATION BY THE 2ND RESPONDENT THE DATED 04/08/2022 Exhibit P6 A TRUE PHOTOCOPY OF THE REPRESENTATION BY THE DETENUE BEFORE 1ST RESPONDENT DATED 13/08/2022 Exhibit P7 A TRUE PHOTOCOPY OF THE CONFIRMATION ORDER DATED 27/09/2022