Binumon K.K. v State of Kerala & Other(s)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS`** ## **`&`** ## **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.`** ## **`WEDNESDAY, THE 8[TH] DAY OF MARCH 2023 / 17TH PHALGUNA, 1944`** ## **`WP(CRL.) NO. 1259 OF 2022`** ## **`PETITIONER:`** ``` BINUMON K.K. AGED 52 YEARS S/O KURIAKOSE, KAPPIKKARA HOUSE, PERUVA KARA, MULLAKULAM VILLAGE, KOTTYAM DISTRICT, PIN -686610 ``` ``` BY ADV AJEESH M UMMER ``` ## **`RESPONDENTS:`** |`1`|`STATE OF KERALA`| |---|---| ||`REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,`| ||`HOME DEPARTMENT, GOVERNMENT SECRETARIAT,`| ||`THIRUVANANTHAPURAM, PIN- 695001.`| |`2`|`THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE,`| ||`ERNAKULAM, PIN -682 030.`| |`3`|`THE STATION HOUSE OFFICER,`| ||`NORTH PARAVOOR POLICE STATION ,NORTH PARAVOOR,`| ||`PIN- 683513`| |`4`|`THE CITY POLICE CHIEF,`| ||`ERNAKULAM RURAL, ALUVA PIN -683 101`| |`5`|`THE CHAIRMAN,`| ||`ADVISORY BOARD ,KAAPA, SREENIVAS, PADAM ROAD,`| ||`VIVEKANANDA NAGAR, ELAMAKKARA,`| ||`PIN- 682026`| |`6`|`THE SUPERINTENDENT OF JAIL,`| ||`CENTRAL JAIL, KANNUR, PIN- 670004`| ``` 2 ``` ## **`WP(CRL.) NO. 1259 OF 2022`** ``` BY ADVS. ADVOCATE GENERAL OFFICE KERALA ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11) SRI K.A.ANAS- PUBLIC PROSECUTOR ``` ``` THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 08.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(CRL.) NO. 1259 OF 2022 ``` ``` 3 ``` ## ALEXANDER THOMAS & ZIYAD RAHMAN A.A., JJ. ================== ## W.P.(Crl) No.1259 of 2022 ================== Dated this the 8[th] day of March, 2023 ## J U D G M E N T ## ALEXANDER THOMAS, J. The prayers in the aforecaptioned writ petition (criminal) seeking for writs of habeas corpus and certiorari 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 corpus commanding the respondents to release the detenu viz. Akash, Aged 23 years, S/O Binu, Madakkathara House, Arakunnam Kara, Mulanthuruthy Village, Ernakulam District, the son of the petitioner who is illegally detained in Central Prison, Kannur and set him at liberty forthwith. - Iii. Grant such other relief as this Hon'ble Court deems fit and proper in the circumstances of the case including the costs of this Writ Petition (Criminal) And Petitioner also prays that this Hon'ble court may be pleased to dispense with the translation of the documents produced in the Vernacular Language.” 2. Heard Sri.Ajeesh M.Ummer, learned counsel ``` WP(CRL.) NO. 1259 OF 2022 ``` ``` 4 ``` appearing for the petitioner and Sri.K.A.Anas, the learned Prosecutor appearing for the respondents. 3. The petitioner herein is the father of the detenu involved in this case. R4 District Police Chief as the Sponsoring Authority has given report dated 05.08.2022, recommending to the 2[nd] respondent District Collector, who is the authorized detaining authority, that, in view of facts and circumstances disclosed in the said report, it is a fit case to enable the 2[nd] respondent to pass an order under Section 3(1) of the Kerala AntiSocial Activities (Prevention) Act, 2007, to detain the detenu, in order to prevent him from committing further prejudicial antisocial activities. The 2[nd] respondent, after consideration of the same, has issued the impugned Ext.P1 detention order bearing No.DCEKM/8469/2022-M7 dated 23.09.2022, ordering that, in view of the aspects stated in the said proceedings, the detenu is to be detained with a view to prevent him from committing further prejudicial anti-social activities, by exercising powers under Section 3(1) of the Act. Ext.P1 detention order has been executed on 26.09.2022. Thereafter, the Government has approved Ext.P1 ``` WP(CRL.) NO. 1259 OF 2022 ``` ``` 5 ``` detention order on 10.10.2022. The Government has later referred the matter for the opinion of the Advisory Board on 13.10.2022. The Advisory Board has given their report to the Government on 05.11.2022, recommending that there is sufficient cause for the preventive detention of the detenu in terms of Ext.P1. Thereupon, the Government has issued the impugned Ext.P5 G.O.(Rt) No.3177/2022/HOME dated 14.11.2022 confirming Ext.P1 detention order. The seven crimes involving the detenu were proposed by the 4[th] respondent Sponsoring Authority. However, only 5 out of the 7 crimes have been reckoned for the present case. Two cases out of the said 5 cases are cases arising out of the NDPS Act and those two NDPS cases have been excluded for treating the detenu as a ‘known rowdy’ as per Section 2(p)(iii) read with Section 2(t) of the Act. The detenu has been convicted in the said two NDPS cases, when he pleaded guilty and was awarded sentence of fine, which was duly remitted. Since the detenu has been convicted in two such NDPS crimes, which has occurred within the requisite 7 year prior period, the detenu could be treated even as a ‘known goonda’, as understood ``` WP(CRL.) NO. 1259 OF 2022 ``` ``` 6 ``` in Section 2(o)(i) read with Section 2(j) of the Act, inasmuch as conviction in one such case alone is sufficient in that regard. The details of the 5 crimes are given in Ext.P1 detention order (see page 16 of the paper book) and the same has also been reiterated in para 6 on pages 4 to 7 of the counter affidavit dated 23.01.2022, filed by R1 State. There are no major factual disputes that the allegations in those crimes are as those contained the respective FIRs. Hence, there is no serious dispute that the detenu would satisfy the definitional parameters of known rowdy, as envisaged in Section 2(p)(iii) read with Section 2(t) of the Act. 4. The last of the abovesaid 5 crimes is Crime No.547/2022 of Ramapuram Police Station, Kottayam district which has been registered for the offences punishable under Sections 332 of the IPC read with Section 3(1) of the Prevention of Destruction of Public Property Act. The date of the alleged crime incident in the 5[th] crime is 26.05.2022. The said crime has been registered on the same day and the detenu has also been arrested on the same day (26.05.2022), on account of the involvement in the said 5[th] crime. Thereafter, the detenu has been remanded to ``` WP(CRL.) NO. 1259 OF 2022 ``` ``` 7 ``` judicial custody by the order of the competent Judicial Magistrate on 27.05.2022. Final Reports, by way of charge-sheets, has already been filed after completion of investigation in 4 out of the 5 cases. The 5[th] case is under investigation. 5. The main ground urged by Sri.Ajeesh M.Ummer, the learned counsel appearing for the petitioner, is that the 2[nd] respondent, in the impugned Ext.P1 detention order, has proceeded on the premise as if the detenu was under judicial remand, on account of his involvement in the 5[th] crime, even as on the date of issuance of Ext.P1 detention order dated 23.09.2022. Whereas, as a matter of fact, the detenu was granted regular bail by this Court, as per Ext.P6 order dated 14.07.2022 rendered in bail application B.A. No.4870/2022. It is the specific contention of the petitioner that the abovesaid aspect, that the detenu was actually released on regular bail since 14.07.2022, was completely unknown to the 2[nd] respondent at the time of issuance of the impugned Ext.P1 detention order dated 23.09.2022. That, the said highly crucial relevant aspect of the matter was completely unaware to the 2[nd] respondent and therefore, it shows clear non ``` WP(CRL.) NO. 1259 OF 2022 ``` ``` 8 ``` application of mind on the part of the 2[nd] respondent. The counsel for the petitioner would place reliance on the dictum laid down by the Division Bench of this Court in decisions as in Mohanan v. State of Kerala & Others [2014 KHC 3501], paras 13 and 14 thereof. Whereas Sri.K.A.Anas, the learned Prosecutor would strongly oppose the aforesaid contention of the petitioner. 6. After hearing both sides, it is to be noted that the detenu was arrested on account of his involvement in the 5[th] crime on 26.05.2022 and he was remanded to judicial custody by the order of the Jurisdictional Magistrate Court concerned on 27.05.2022. However, the crucial fact of the matter is that later, the detenu could secure regular bail, as per Ext.P6 order dated 14.07.2022 granted by this Court in bail application, B.A. No.4870/2022 and he was released from custody, thereafter, on execution of the bail bond. A reading of para 10 and 11 of the impugned Ext.P1 detention order would indicate that the 2[nd] respondent has proceeded on the premise as if the detenu was under judicial remand in the 5[th] crime, even as on the date of issuance of Ext.P1 order dated 23.09.2022. The crucial fact, ``` WP(CRL.) NO. 1259 OF 2022 ``` ``` 9 ``` evident from Ext.P6 order, that the detenu was already granted bail in that case as early as on 14.07.2022, was not known to the 2[nd] respondent at all. In other words, the 2[nd] respondent was completely unaware about the highly crucial relevant factual aspect, that the detenu was already released on regular bail in the 5[th] crime as early as on 14.07.2022, which is much before the issuance of the impugned Ext.P1 detention order dated 23.09.2022. The matter in issue is covered in favour of the petitioner by the decision of this Court in Mohanan v. State of Kerala & Others [2014 KHC 3501], paras 13 and 14 thereof. A reading of para 14 of Mohanan’s case (supra) would indicate that in the said case neither the reports appended along with Section 3(1) detention order nor the detention order passed under the said Act contained any factual reference to the bail order granted by the trial court to the detenu. So also, there was no finding in the said impugned proceedings that the conditions imposed in the bail order are insufficient to prevent the detenu from continuing the antisocial activities. Hence, the Division Bench of this Court held that the impugned detention order therein suffers from the vice of ``` WP(CRL.) NO. 1259 OF 2022 ``` ``` 10 ``` non application of mind, rendering it illegal, unconstitutional and hence unsustainable. In that view of the matter their Lordships of the Division Bench has set aside the impugned order of detention therein. Para 14 of Mohanan’s case (supra) reads as follows: “14. In so far as this case is concerned, neither the reports made under S.3(1) nor the detention order passed under S.3(2) of the Act contain any reference to Ext. P9 bail order passed by the trial court nor a finding that the conditions imposed therein are insufficient to prevent the detenu from continuing the anti - social activities. In other words, the detention order now impugned before us suffers from the vice of non application of mind rendering it illegal, unconstitutional and hence unsustainable. For these reasons, we are constrained to set aside Ext. P3 order of detention.” 7. We are confronted with a scenario in the present case which is strikingly similar or identical to the one considered in paras 13 and 14 of Mohanan’s case (supra). As stated earlier hereinabove, the 2[nd] respondent was completely unaware about the issuance of Ext.P6 bail order as early as on 14.07.2022. The 2[nd] respondent has proceeded on the premise as if the detenu was on judicial remand in the 5[th] crime and even as on the date of issuance of Ext.P1 detention order dated 23.09.2022. The fact relating to the issuance of the bail order dated 14.07.2022, in terms of Ext.P6 herein is a highly crucial and relevant aspect and ``` WP(CRL.) NO. 1259 OF 2022 ``` ``` 11 ``` hence, non consideration or non cognizance of the existence of the said factual state of affairs, would show clear non application of mind on the part of the 2[nd] respondent. Further, the impugned Ext.P1 detention order does not make any reference whatsoever to Ext.P6 bail order. On the other hand, a reading of Ext.P1, more particularly, paras 10 and 11 thereof, would clearly show that the 2[nd] respondent has proceeded on the premise as if the detenu was on judicial remand, even as on 23.09.2022 (date of issuance of Ext.P1 order). Needless to say, the impugned proceedings are also consciously absent of the consideration as to why the bail conditions imposed in Ext.P6 order are not sufficient to prevent the detenu from committing further prejudicial anti-social activities. If the 2[nd] respondent had considered the impact of Ext.P6 bail order and had also considered the sufficiency or otherwise of the bail conditions therein to prevent the detenu from committing further prejudicial anti-social activities and had held that it is imperative to detain the detenu under Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007, that scenario would have been totally different. Such is not the case in the ``` WP(CRL.) NO. 1259 OF 2022 ``` ``` 12 ``` instant case. The issuance of the bail order, as in Ext.P6, would have been certainly known to the competent Police Authorities concerned. This Court has allowed the plea for quashment in a similar case, as can be seen from the judgment rendered by the Division Bench of this Court on 07.03.2023 in W.P.(Crl) No.1130 of 2022, in the case Sabana v. State of Kerala. The upshot of the above discussion is that the impugned detention proceedings are liable for interdiction at the hands of this Court in exercise of powers of judicial review. In that view of the matter, it is ordered, in the interest of justice, that the impugned Ext.P1 detention order bearing No.DCEKM/8469/2022-M7 dated 23.09.2022 issued by the 2[nd] respondent District Collector, Ernakulam, as confirmed by the impugned Ext.P5 G.O.(Rt) No.3177/2022/HOME dated 14.11.2022 issued by the 1[st] respondent - State Government in the Home Department, will stand quashed and set aside. We are told that the detenu is now detained in the Central Jail, Kannur. Consequently, it is ordered that the respondents as well as R6 – Superintendent of Jail, Central Prison, Kannur shall forthwith ``` 13 ``` ## **`WP(CRL.) NO. 1259 OF 2022`** release the petitioner from detention and set him at liberty, in case his detention is not necessary in any other case. The Registry will forward copies of this judgment to the respondents herein, more particularly, R6 - Superintendent of Jail, Central Prison, Kannur forthwith. The Secretary to the Office of the Advocate General will forward copies of this judgment to the respondents, more particularly to R6 - Superintendent of Jail, Central Prison, Kannur. With these observations and the directions, the afore writ petition (criminal) will stand disposed of. Sd/ALEXANDER THOMAS, JUDGE Sd/ZIYAD RAHMAN A.A., JUDGE scs ``` WP(CRL.) NO. 1259 OF 2022 ``` ``` 14 ``` ## **`APPENDIX OF WP(CRL.) 1259/2022`** ## `PETITIONER EXHIBITS` ``` Exhibit P1TRUE COPY OF THE ORDER NO DCEKM/8469/2022/M7 DATED 23.09.2022 Exhibit P2A TRUE COPY OF THE JUDGMENT IN SC 327/2020 OF THE COURT OF SPECIAL JUDGE(FOR THE TRIAL OF PROTECTION OF CHILDREN FROM SEXUAL OFFENCE ACT CASE), MUVATTUPUZHA DATED 20.09.2022. Exhibit P3AFFIDAVIT FILED BY THE DEFACTO COMPLAINANT IN CRIME 258/2022 OF MULANTHURUTHY POLICE STATION IN CRL MC 8744/2022 DATED 26.11.2022 ``` ``` Exhibit P4THE AFFIDAVIT FILED BY THE DEFACTO COMPLAINANT IN CRIME 403/2022 OF ERATTUPETTA POLICE STATION IN CRL MC 8729/2022 DATED 26.11.2022 ``` ``` Exhibit P5TRUE COPY OF THE G.O(RT) NO.3177/2022/HOME DATED 14.11.2022 ``` ``` Exhibit P6A TRUE COPY OF THE ORDER IN B.A 4870/2022 GRANTING BAIL TO THE DETENUE IN CRIME 547/2022 OF RAMAPURAM POLICE STATION DATED 14.07.2022. ```