High Court of KeralaDivision Bench2014-07-25Writ petition allowed; Exhibit P1 not to be enf...

Ashraf v. Inspector General of Police, Kochi Range

Case / Petition Number:WP(C).No. 16320 of 2014 (L)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Thottathil B. Radhakrishnan
P. B. Suresh Kumar
Judgment Date: 2014-07-25
Court Decision / Holding: Exhibit P1 shall not be enforced against the petitioner on condition that he shall mark appearance in the office of the District Police Chief, Ernakulam Rural, on all Mondays and Thursdays, commencing from 31.7.2014, between 10 a.m. and 11 a.m. Such requirement to appear will be for a period of one year from 20.3.2014, that is to say, the period for which Exhibit P1 has been issued. This shall be monitored appropriately by the District Police Chief, Ernakulam Rural and that office will have necessary authority to issue instructions for surveillance of the petitioner.
Final Disposition: Writ petition allowed; Exhibit P1 not to be enforced against the petitioner subject to the stated conditional appearance mechanism and monitoring by the District Police Chief.

Parties to the Case

Appellants / Petitioners

Ashraf

Respondents

Inspector General of Police, Kochi Range

Legal Representation & Advocates

Counsels for Petitioners

• Smt. Anitha Mathai Muthirenthy

Counsels for Respondents

• Smt. Kochumol Kodavath

Case Synopsis & Summary

This writ petition under Article 226 of the Constitution challenges Exhibit P1, a detention order issued under the Kerala Anti-social Activities (Prevention) Act, 2007 (KAAPA), restraining Ashraf from entering the Ernakulam Rural jurisdiction for one year from 20.3.2014. The Advisory Board, having considered his representation, noted that crimes at serial Nos. 1–3 and 6 could not form the basis to sustain the order; it suggested that if Exhibit P1 were to stand, it would have to rest on crimes at serial Nos. 4, 5 and 7, which fall within KAAPA sections 2(i), 2(j) and 2(o)(ii). Ashraf contends that the order cannot be sustained on the basis of those earlier crimes, and argues that the absence of explicit satisfaction for passing the restraint on the basis of crimes 4, 5 and 7 renders Exhibit P1 unsustainable; he also contends that possession, though not expressly used in KAAPA’s definitions, is inherently part of drug-offender activity, which would bring him within the scope of KAAPA’s terms. The High Court, however, finds that the initial satisfaction was not explicit and that the order cannot survive as a blanket restraint absent proper basis. It accordingly quashes Exhibit P1 but permits conditional relief, directing Ashraf to appear before the District Police Chief on specified days for one year, with monitoring by police authorities.

Provisions of Law Cited

Article 226, Constitution of IndiaKerala Anti-social Activities (Prevention) Act, 2007 (KAAPA) – Sections 2(i), 2(j), 2(o)(ii)

Submissions & Arguments

Contentions of Appellants / Petitioners

Ashraf contends that Exhibit P1 detention order under KAAPA is unsustainable because the Advisory Board’s findings show that crimes in serial Nos. 1–3 and 6 cannot form the basis for the order. The Court should assess whether the order would have been issued on the basis of crimes 4, 5 and 7 alone, and the first-instance satisfaction must be explicit to make the restraint valid even if other crimes are ineligible. The petitioner argues that KAAPA’s definition of a drug-offender includes possession as part of stockpiling, transport, sale or distribution, and though the Act does not expressly use the word 'possession' in Section 2(i), possession is inherently encompassed, so a blanket restraint based on unrelated cases would violate constitutional protections. The challenge is to ensure procedural propriety and avoid arbitrary deprivation of liberty by quashing Exhibit P1 or imposing necessary conditions.

Contentions of Respondents

The respondents contend that the detention order under KAAPA is valid, given the petitioner’s long-standing anti-social activity. KAAPA’s definition includes possession in connection with drug activities, and the Advisory Board’s conclusion that crimes 4, 5 and 7 suffice to justify the order should be relied upon. The court should not substitute its own assessment for the competent authorities’ discretionary decision. The imprisonment order was issued after considering the petitioner’s representation and aligns with statutory requirements; upholding the order would safeguard public order and the state’s ability to prevent crime. The petition should be dismissed or the order upheld under the KAAPA framework.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Keshav Talpade v. Emperor	AIR 1943 FC 72(B)	Positive	Cited by the court for support in relation to the exercise of writ jurisdiction and the need for explicit, justified basis when sustaining restraints under KAAPA, reflecting reliance on older authorities to guide discretionary powers.
Shibban Lal v. State of U.P.	AIR 1954 SC 179	Positive	Cited for support on the discretionary use of writs and ensuring due process in constitutional contexts, aligning with the court’s stance on safeguarding rights while permitting lawful restraint.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **FRIDAY, THE 25TH DAY OF JULY 2014/3RD SRAVANA, 1936** ## **WP(C).No. 16320 of 2014 (L)** **----------------------------------------** **PETITIONER:** **------------------** **ASHRAF, AGED 53 YEARS, S/O.PAREED, KALAPPURACKAL HOUSE, KANJIRAKKATTU BHAGOM, PERUMBAVOOR VILLAGE, ERNAKULAM DISTRICT.** ## **BY ADV. SMT.ANITHA MATHAI MUTHIRENTHY** **RESPONDENT:** **---------------------** **INSPECTOR GENERAL OF POLICE, KOCHI RANGE, PIN-682031.** ## **BY SENIOR GOVERNMENT PLEADER SMT.KOCHUMOL KODAVATH** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** **WP(C).No. 16320 of 2014 (L) ----------------------------------------** ## **APPENDIX** |**PETITIONER(S)' EXHIBITS**|**PETITIONER(S)' EXHIBITS**| |---|---| |**-------------------------------------**|| |**EXT.P1**|**COPY OF ORDER NO.O9(DP)/CAMP/13 KOR DT.20.03.2014 ISSUED BY**| ||**RESPONDENT.**| |**EXT.P2**|**COPY OF APPEAL/REPRESENTATION DT.11.04.2014 BEFORE THE**| ||**HON'BLE ADVISORY BOARD,ERNAKULAM BY THE PETITIONER'S**| ||**COUNSEL**| |**EXT.P3**|**COPY OF ORDER IN O.P.32/2014 DT.02.05.2014.**| |**RESPONDENT(S)' EXHIBITS**|| |**---------------------------------------**|| ||**NIL.**| ||**/ TRUE COPY /**| ||**P.S. TO JUDGE**| ## **PJ** ## **THOTTATHIL B.RADHAKRISHNAN & P.B.SURESH KUMAR, JJ.** ------------------------------------------------------------------ W.P.(C).No.16320 of 2014 ------------------------------------------------------------------- Dated this the 25[th] day of July, 2014 Version certified for reporting ## **J U D G M E N T** ## **Thottathil B.Radhakrishnan, J.** - 1.We have heard the learned counsel for the petitioner and learned Senior Government Pleader. 2.This is a writ petition filed invoking Article 226 of the Constitution of India, seeking to quash Exhibit P1 detention order passed under the Kerala Anti-social Activities (Prevention) Act, 2007, hereinafter referred to as 'KAAPA'. That order is one restraining the petitioner from entering the jurisdictional limits of Ernakulam Rural District Police Chief, for a period of one year from 20.3.2014. Petitioner's representation to the Advisory Board under KAAPA was considered by that authority. Paragraph Nos.5 and 6 of Exhibit P3 order of the Advisory Board clearly show that crimes at serial Nos.1 to 3 and 6 in Exhibit P1 restraint order **2** _WPC.No.16320/14_ could not have been made the foundation to enter subjective and objective satisfaction to pass an order in the nature of Exhibit P1. This means that, if at all Exhibit P1 were to stand, it has to be on the basis of the crimes at serial Nos. 4, 5 and 7 as noted in Exhibit P1. The allegations against the petitioner in those cases, as rightly noted by the Advisory Board, fall squarely under Sections 2(i), 2(j) and consequently under Section 2(o) (ii) of KAAPA. Noticing the substance of the allegations of those cases, the plea of the petitioner that mere possession would not attract those provisions was rightly repelled by the Advisory Board. 'Possession' is necessarily an inseparable component of any or all of the activities of stocking, transportation, sale or distribution. Hence, the mere absence of the word 'possession' in the definition of the term 'drug-offender' in KAAPA is not decisive to exclude a person found to be in possession of any drug in contravention of the Narcotic Drugs and Psychotropic Substances Act or in contravention of any other law for the time being in force, from the ambit of 'drug-offender' as defined in Section 2(i) of KAAPA and therefore from the purview of the terms 'goonda' and 'known-goonda' defined respectively in clauses (j) and (o) **3** _WPC.No.16320/14_ of Section 2 of KAAPA. This is the law. The petitioner's plea that in the absence of the word 'possession' in those definition clauses, he cannot be covered by a restraint order under KAAPA has, therefore, been rightly repelled by the Advisory Board. - 3.But the fundamental issue is that the satisfaction of the authority at the first instance ought to be explicit to the effect that the said authority would have passed the impugned Exhibit P1 order of restraint even on the basis of the crimes noted at serial Nos.4, 5 and 7, that is to say, de hors crimes noted at serial Nos.1 to 3 and 6. We have considered the entire contents of Exhibit P1 in the light of the submissions made by the learned counsel on either side. While the petitioner is noted as one who is involved in such activities for about ten years, the fact of the matter remains that if cases on serial Nos.1 to 3 and 6 are excluded, the other three occurrences at serial Nos.4, 5 and 7 are registered as crime cases in 2011, 2013 and 2012 respectively. We notice all these only for the limited requirement to assess as to whether Exhibit P1 contains the expression of the consideration by its **4** _WPC.No.16320/14_ maker as to whether that order of restraint would have been passed on the basis of cases at serial Nos.4, 5 and 7 only, if the other cases were ineligible to be included and counted to put the petitioner within the definition of 'drug offender'. We do not see that Exhibit P1 reflects such consideration. The satisfaction in that regard which has to be arrived at by the competent authority under the Act cannot be substituted by any conclusion that the Advisory Board would enter. Nor can we independently assess and conclude by providing reasons to independently support the result of Exhibit P1. * - 4.For the aforesaid reasons, Exhibit P1 order is unsustainable in terms of the constitutional and legal requirements as prescribed by the Constitution and the laws. - 5.Be that as it may, being in writ jurisdiction, issuance of a writ in the nature of certiorari or any writ, direction or order, is within the realm of granting discretionary reliefs, of course, in accordance with law. The constitutional power of the High Court under Article 226 has to be regulated to take care of all relevant aspects that would impact on situational justice. We **5** _WPC.No.16320/14_ have assessed the quality of the allegations in crimes at serial Nos.4, 5 and 7 of Exhibit P1 and are of the clear and firm view that the petitioner cannot get a blanket order of having Exhibit P1 quashed without conditions being imposed on him by this Court. For the aforesaid reasons, it is ordered that Exhibit P1 shall not be enforced against the petitioner on condition that he shall mark appearance in the office of the District Police Chief, Ernakulam Rural, on all Mondays and Thursdays, commencing from 31.7.2014, between 10 a.m. and 11 a.m. Such requirement to appear will be for a period of one year from 20.3.2014, that is to say, the period for which Exhibit P1 has been issued. This shall be monitored appropriately by the District Police Chief, Ernakulam Rural and that office will have necessary authority to issue instructions for surveillance of the petitioner. Writ petition ordered accordingly. ## **(THOTTATHIL B.RADHAKRISHNAN, JUDGE)** ## **(P.B.SURESH KUMAR, JUDGE)** **6** _WPC.No.16320/14_ * See for support **Keshav Talpade v. Emperor** , **AIR 1943 FC 72(B)** and **Shibban Lal v. State of U.P.** , **AIR 1954 SC 179** . **(THOTTATHIL B.RADHAKRISHNAN, JUDGE)** **(P.B.SURESH KUMAR, JUDGE)** DG/Sha - -true copy- PS to Judge.