Chandrika M. v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE A.HARIPRASAD MONDAY, THE 20TH DAY OF JUNE 2016/30TH JYAISHTA, 1938 WP(Crl.).No.143 of 2016 (S) ----------------------------- PETITIONER : - ------------------- CHANDRIKA M. AGED 59 YEARS, W/O.RAMAN, MELEPURATH HOUSE, VADANAMKURUSSI P.O.,SHORNUR, OTTAPALAM TALUK, PALAKKAD DIST. BY ADVS.SRI.O.V.MANIPRASAD SRI.JOSE ANTONY RESPONDENTS : ---------------------- 1. STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM 695 001. 2. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, PALAKKAD 678 001 3. THE DISTRICT POLICE CHIEF PALAKKAD 678 001 4. THE SUB INSPECTOR OF POLICE SHORNUR POLICE STATION, PALAKKAD DISTRICT 679 121 5. THE SUPERINTENDENT OF CENTRAL PRISON KANNUR 670 001. R1-R5 BY ADV. ADDL.DIRECTOR GENERAL OF PROSECUTION R2,R3 BY ADV. GOVERNMENT PLEADER SRI.ABDUL KAREEM THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 20-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(Crl.).No. 143 of 2016 (S) -------------------------------------- ## APPENDIX ## PETITIONER'S EXHIBITS : --------------------------------- EXT.P1 : TRUE COPY OF THE DETENTION ORDER DATED 29-01-2016 OF THE 2ND RESPONDENT - EXT.P2 : TRUE COPY OF THE GROUND OF DETENTION SERVED ON THE DETENU - EXT.P3 : TRUE COPY OF THE REPORT DATED 18-12-2015, OF THE 3RD RESPONDENT - EXT.P4 : TRUE COPY OF THE REPORT DATED 30-12-2015,OF THE 3RD RESPONDENT - EXT.P5 : TRUE COPY OF THE REPORT DATED 25-01-2016 OF THE 3RD RESPONDENT - EXT.P6 : TRUE COPY OF THE REPRESENTATION DATED 02-03-2016 SUBMITTED BEFORE THE ADVISORY BOARD - EXT.P7 : TRUE COPY OF THE GO(RT) NO 1069/2016/ HOME DATED 26-03-2016 ## RESPONDENTS' EXHIBITS : ------------------------------------- NIL //TRUE COPY// P.A. TO JUDGE ## **K.T.SANKARAN & A.HARIPRASAD, JJ.** -------------------------------------- W.P.(Crl.) No.143 of 2016 -------------------------------------Dated this the 20[th] day of June, 2016 ## _**JUDGMENT**_ ## _**K.T.Sankaran, J.**_ Babu @ Baburaj, son of the petitioner, who was detained as per Exhibit P1 order of detention dated 29.1.2016 under Sections 3(1) & (2) of the Kerala Anti-Social Activities (Prevention) Act (hereinafter referred to as 'the KAAPA'). The order of detention was executed and the petitioner was arrested on 1.2.2016. The petitioner is classified as a “known rowdy” in the order of detention. The petitioner challenges the order of detention as well as the continued detention of the detenu. 2. The learned counsel for the petitioner submitted that as revealed from Exhibit P1 order of detention, the detaining **W.P.(Crl) No.143 of 2016** **2** authority arrived at the subjective satisfaction on the basis of four reports submitted by the District Police Chief. These reports are dated 18.12.2015 (Exhibit P3), 30.12.2015 (Exhibit P4), 23.1.2016 and 25.1.2016 (Exhibit P5). The contention of the petitioner is that though reliance was placed on the four reports submitted by the District Police Chief, the detenu was not supplied with the report dated 23.1.2016 and therefore, there was violation of Article 22(5) of the Constitution of India and Section 7(2) of the KAAPA. 3. The learned Government Pleader submitted that reference is made to the four reports submitted by the District Police Chief. The report dated 23.1.2016 only shows the status of six cases in which the detenu is involved and therefore, it cannot be said that the subjective satisfaction was arrived at on **W.P.(Crl) No.143 of 2016** **3** the basis of that report as well. 4. Section 7(2) of the KAAPA provides that the grounds of detention, specifying the instances of offences, with copies of relevant documents, as far as practicable, on the basis of which the person concerned is considered as a “known goonda” or “known rowdy” shall be furnished to the detenu within five days of detention. There is no case for the respondents that the report dated 23.1.2016 was served on the detenu. 5. **Sulaiman P.A. vs. Additional Chief Secretary to Government (ILR 2009(3) Kerala 83)** deals with a similar question as is involved in the present case. In Sulaiman's case, the order of detention clearly shows that the Superintendent of **W.P.(Crl) No.143 of 2016** **4** Police submitted two reports dated 11.12.2008 and 31.3.2009 before the detaining authority. The contention put forward on behalf of the detenu was that the report dated 31.3.2009 was not furnished to the detenu. In Sulaiman's case, the Division Bench held thus : “10. The learned A.D.G.P. submits that the contents of the said document dated 31.3.2009 are not very crucial or relevant, in that it contains only information of the stage of the five cases referred above. A copy of the same has not been produced formally before this Court ; but the learned A.D.G.P. has shown to us the file and we have perused that report dated 31.3.2009. We agree readily with the learned A.D.G.P. that the information furnished therein is not crucial. It only refers to the stage of the five cases referred earlier in the report dated 11.12.2008. It confirms that four of them have already been charge-sheeted whereas the 5[th] was pending investigation. Today, when we look into the said report dated 31.3.2009, it is evident that it does not contain any vital or relevant information having a **W.P.(Crl) No.143 of 2016** **5** bearing on the order of detention. It only confirms that the cases continue at the same stage and there is no change in the status of the cases. 12. The learned counsel for the petitioner, on the contrary, contends that the question is not whether actual prejudice has resulted or not ; but whether the non furnishing of the copy of such a vital document has affected the constitutional and statutory right of the detenu to make an effective representation against the order of detention. If the non furnishing of the copy of the document has resulted in impairment of the right of the detenu to make an effective representation, then it must be held, notwithstanding the absence of proof of actual prejudice that the detention is bad and the same has to be invalidated. 13. The learned counsel for the petitioner contends that the detenu was left in the dark as to what the report dated 31.3.2009 was. Did it contain only materials to show that the detenu was a known rowdy? Or did it show that the Superintendent of Police had perceive facts and reported the same to justify the conclusion that the detention of the detenu was necessary? The learned counsel contends that this has to **W.P.(Crl) No.143 of 2016** **6** be read along with the other ground raised that there is no nexus between the last of the prejudicial acts referred to in Ext.P3 and the order of detention. At the time when the detenu had the right to make a representation under Article 22(5) of the Constitution of India and Section 7(2) of the KAAPA the detenu did not know what this report was and what the contents of the report was. It might have contained materials against him. It may not have contained relevant materials against him. In either cases, what the detenu is deprived of is his a right to make a representation against his detention. Effective representation against an order of detention cannot be made when a detenu is deprived of the opportunity to know the contents of one of the two crucial documents on which reliance is said to be placed by the detaining authority-even when it is later shown in proceedings before the Habeas Corpus Court that that document did not contain any vital information. Denial of opportunity arises from the fact that he was kept in the dark guessing about the contents of such document. His right to make an effective representation against the contents of the other document is also impaired as he has no idea as to whether the contents of the **W.P.(Crl) No.143 of 2016** **7** undisclosed document would confirm and are in tandem with the one disclosed.” 6. The learned Public Prosecutor referred to the decisions in **Fousiya v. State of Kerala and others (2012(3) KHC 131)** , **Sathi v. State of Kerala (2010 (1) KLT SN 65 Case No.80)** and **Sunitha Jain v. Union of India and another 2006(3) SCC 21=2006 KHC 399** . We are of the view that in the facts and circumstances of the case, the decisions cited by the learned Public Prosecutor do not apply to the facts of the present case. 7. Non furnishing of the report dated 23.1.2016 certainly affected the right of the detenu to make an effective representation against the order of detention. Therefore, continued detention of the detenu cannot be said to be legal. **W.P.(Crl) No.143 of 2016** **8** For the aforesaid reasons, the Writ Petition is allowed and we hold that the continued detention of the detenu is illegal. The detenu shall be released forthwith unless his detention is required in respect of any other case. The Registry will communicate the gist of the judgment to the Superintendent of Central Prison, Kannur, for compliance forthwith. **K.T.SANKARAN** **JUDGE** **A.HARIPRASAD JUDGE** csl