Devaki 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 ANIL K.NARENDRAN THURSDAY, THE 7TH DAY OF AUGUST 2014/16TH SRAVANA, 1936 ## **WP(Crl.).No. 263 of 2014 (S)** ## **PETITIONER:** DEVAKI, AGED 70 YEARS, W/O.LATE VAVA, PUTHUTHARA HOUSE, POOMKUNNAM, HARI NAGAR, THRISSUR. BY ADV. SRI.V.C.MADHAVANKUTTY. ## **RESPONDENTS:** 1. STATE OF KERALA REPRESENTED BY HOME SECRETARY, SECRETARIAT THIRUVANANTHAPURAM-695 001. 2. THE DISTRICT MAGISTRATE AYYANTHOLE, THRISSUR-680 001. 3. THE SUPERINTENDENT OF POLICE CITY THRISSUR DISTRICT-680 001. 4. THE SUB INSPECTOR OF POLICE EAST POLICE STATION, THRISSUR - 680 001. 5. THE SUB INSPECTOR OF POLICE WEST POLICE STATION, THRISSUR-680 001. 6. THE SUB INSPECTOR OF POLICE OLLUR POLICE STATION, THRISSUR-680 001. 7. THE SUB INSPECTOR OF EXCISE THRISSUR-680 001. BY ADV. ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.K.I.ABDUL RASHEED THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 07-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **WP(Crl.).No. 263 of 2014 (S)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** EXT.P1 TRUE COPY OF THE REPORT OF THE CITY POLICE COMMISSIONER, THRISSUR NUMBER 01/KAAPA/SB/RC/2014 FILED BEFORE THE DISTRICT MAGISTRATE DATED 17/1/2014. - EXT.P2 TRUE COPY OF THE ORDER NO.C1 4154/2014 DATED 6/2/2014 PASSED BY THE 2ND RESPONDENT UNDER KERALA ANTIL SOCIAL ACTIVITIES (PREVENTION) ACT 2007. - EXT.P3 TRUE COPY OF THE GOVERNMENT ORDER G.O.(RT) NO.1094/2014/HOME DATED THIRUVANANTHAPURAM, 5/4/2014. ## **RESPONDENTS' EXHIBITS** - EXT.R3(a) PHOTOCOPY OF THE SEIZURE MAHAZAR OF EXCISE RANGE IN CRIME NO.3/2013. - EXT.R3(b) PHOTOCOPY OF THE SEIZURE MAHAZAR OF THRISSUR EAST POLICE STATION IN CRIME NO.2474/2013. - EXT.R3(c) PHOTOCOPYH OF FIR IN CRIME NO.545/07 U/S.3 OF KAAPA. - EXT.R3(d) PHOTOCOPY OF THE DETENTION ORDER NO.C1 50894/07(a) ISSUED BY THE SECOND RESPONDENT. - EXT.R3(e) PHOTOCOPY OF THE CONFIRMATION OF DETENTION ORDER PASSED BY THE ADDITIONAL CHIEF SECRETARY, GOVT. OF KERALA VIDE NO.68012/SS.A5/2007/HOME DATED 4.10.2007. - EXT.R3(f) PHOTOCOPY OF THE BAIL ORDER PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT NO.1, THRISSUR. //TRUE COPY// AHZ/ ## **K.T.SANKARAN & ANIL K. NARENDRAN, JJ.** ## **---------------------------------------------------W.P.(Crl) NO. 263 OF 2014 S ---------------------------------------------------Dated this the 7[th] day of August, 2014** ## **JUDGMENT** ## **K.T.Sankaran, J.** The questions involved in this Writ Petition are: (1) Can a drug-offender as defined in Section 2(i) be considered as a goonda under Section 2(j) so as to term him as a “known goonda” under Section 2(o) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as 'the KAAPA'), without proving that he is involved in any illegal activity which is harmful for the maintenance of public order? (2) Whether it is necessary to show that the activities of the person concerned are harmful to the maintenance of public order as mentioned in Section 2(j) of the KAAPA, if it is shown that he has been indulging in any anti-social activity as defined under Section 2(a) of the Act. 2. The petitioner is the mother of Sajeevan, who has been ## **W.P.(Crl) NO. 263 OF 2014 S** :: 2 :: detained in prison in execution of an order of detention under Section 3 of the KAAPA. Sajeevan is hereinafter referred to as the detenu. 3. An order of detention dated 6.2.2014 was passed by the District Magistrate, Thrissur against the detenu under Section 3 of the KAAPA, with a view to prevent him from committing any antisocial activity within the State of Kerala in any manner, the detenu being a “known goonda” as defined under Section 2(o) of the KAAPA. The order of detention is under challenge in this Writ Petition. 4. The order of detention shows, and it is not disputed, that the detenu was earlier detained under Section 3 of the KAAPA as per the order dated 22.9.2007 and he had completed his term of detention. The order of detention further shows that after release from detention, the detenu continued to indulge in anti-social activities endangering the safety of the general public and the public health. The detenu is involved in four cases as shown below: ## **W.P.(Crl) NO. 263 OF 2014 S** :: 3 :: (1) Crime No.427 of 2011 of Thrissur West Police Station, under Section 20(b)(II)(A) of the Narcotic Drugs and Psychotropic Substances Act (in short 'NDPS Act'), in which, the allegation is that on 7.4.2011, he was found in possession of ganja for sale under the over bridge at Poonkunnam, Thrissur, in an autorickshaw. (2) Crime No.2474 of 2013 of Thrissur East Police Station under Section 20(b)(II)(A) of the NDPS Act and Section 25 of the Juvenile Justice (Care & Protection of Children) Act, 2000. It is alleged therein that on 9.10.2013, the detenu was indulging in sale of ganja in small packets to the students who had not attained majority. (3) Crime No.2353 of 2013 of Ollur Police Station under Sections 341, 323 and 324 read with Section 34 of the Indian Penal Code. (4) Crime No.3 of 2013 of Excise Range, Thrissur under Section 20(b)(II)(A) of the NDPS Act. It is alleged therein that on 22.8.2013 at 9.00 pm., on getting information that the detenu was involved in the sale of ganja, the Excise Inspector went to the spot. The detenu ran away and abandoned his motor bike. Ganja was seized from the motor bike. To avoid arrest in that case, the detenu had absconded. ## **W.P.(Crl) NO. 263 OF 2014 S** :: 4 :: 5. The learned counsel for the petitioner submitted that even if the allegations levelled against the detenu are found to be true, it would not amount to any illegal activity which is harmful for the maintenance of the public order and, therefore, it would not attract the definition of “goonda” under Section 2(j) of KAAPA. The learned counsel submitted that public order is not the same as law and order and even if a person creates a law and order situation, that cannot be a ground for terming him as a “goonda” under the KAAPA. 6. The learned Additional Director General of Prosecution submitted that the expression “public order” occurring in Section 2(j) of KAAPA would apply to only the illegal activity mentioned therein and it does not apply to any anti-social activity as defined in Section 2(a) of the KAAPA. The learned Additional Director General of Prosecution also submitted that the very inclusion of “drug-offender” in the definition of “goonda” and in the definition of “anti-social activity” would make the position clear. ## **W.P.(Crl) NO. 263 OF 2014 S** :: 5 :: 7. To comprehend the submissions made by either side, it is necessary to extract the definition of “anti-social activity”, “drugoffender” and “goonda” as defined respectively in clauses (a), (i) and (j) of Section 2 of the KAAPA. - “ **2. Definitions.** -- In this Act, unless the context - otherwise requires,-- - (a) “anti-social activity” means acting in such manner as to cause or likely to cause, directly or indirectly, any feeling of insecurity, danger or fear among the general public or any section thereof, or any danger to the safety of individuals, safety of public, public health or the ecological system or any loss or damage to public exchequer or to any public or private property or indulges in any activities referred in clauses (c), (e), (g), (h), (i), (l), (m) (n), (q) and (s) of this section; xxxx xxxx - (i) “drug-offender” means a person who illegally cultivates, manufactures, stocks, transports, sells or distributes any drug in contravention of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985) or in contravention of any other law for the time being in force, or who ## **W.P.(Crl) NO. 263 OF 2014 S** :: 6 :: knowingly does anything abetting or facilitating any such activity; - (j) “goonda” means a person who indulges in any anti-social activity or promotes or abets any illegal activity which are harmful for the maintenance of the public order directly or indirectly and includes a bootlegger, a counterfeiter, a depredator of environment, a digital data and copy right pirate, a drug offender, an hawala racketeer, an hired ruffian, rowdy, an immoral traffic offender, a loan shark or a property grabber;” 8. The detenu is involved in three cases where offences under the NDPS Act are allegedly committed by him. Sale or distribution of any drug in contravention of the NDPS Act by a person would make him a “drug-offender” as defined in Section 2(i) of the KAAPA. Therefore, he is a “drug-offender”. A “drug-offender” would become a “goonda” under Section 2(j) of the KAAPA, going by the inclusive definition. The question is whether it is necessary to show that the activities of the “drug-offender” are harmful for the maintenance of public order. In this context, the definition of “anti-social activity” also assumes importance. The activities of a “drug-offender” would ## **W.P.(Crl) NO. 263 OF 2014 S** :: 7 :: constitute anti-social activity under clause (a) of Section 2. If a person indulges in any anti-social activity, he would be a “goonda” as defined in Section 2(j) of the KAAPA. The expression “which are harmful for the maintenance of the public order” occurring in Section 2(j) of the KAAPA is applicable only to the expression “promotes or abets any illegal activity” and not to the expression “any anti-social activity”. The word “or” occurring in between the expression “antisocial activity” and the expression “promotes or abets any illegal activity” would make it clear that the qualification, namely, “harmful for the maintenance of public order” would apply to only the last expression, namely, “promotes or abets any illegal activity” and not to the expression “anti-social activity”, which is distinct and separate. Under Section 2(j), any of the following categories of persons would be a “goonda”: (a) a person who indulges in any anti-social activity, (b) a person who promotes or abets any illegal activity which are harmful for the maintenance of the public order, (c) a bootlegger, (d) a counterfeiter, (e) a depredator of environment, (f) a digital data and copy right pirate, (g) a drug-offender, (h) a hawala racketeer, (i) a hired ruffian, (j) a rowdy, (k) an immoral traffic offender and (l) a ## **W.P.(Crl) NO. 263 OF 2014 S** :: 8 :: loan shark or a property grabber. Only in respect of the category of persons who promote or abet any illegal activity, the requirement of the same being “harmful for the maintenance of public order” is required. Indulging in any anti-social activity or being a bootlegger, a counterfeiter, a drug-offender etc. mentioned in Section 2(j) would by itself make him a “goonda”, even without proof of his activities being harmful for the maintenance of public order. Going by the definition of “anti-social activity”, it would be clear that the same by itself pertains to public order. No further proof of public order factor is required once it is shown that the person concerned is a drugoffender or a person coming under any of the categories of persons mentioned in Section 2(j) of the KAAPA as bootlegger, counterfeiter etc.. The public order element would apply to only those illegal activities which are not included in the definition of “anti-social activity”. Therefore, we are of the view that it is not necessary to show that the activities of the detenu were harmful for the maintenance of the public order, in order to consider him as a “known goonda”. ## **W.P.(Crl) NO. 263 OF 2014 S** :: 9 :: 9. Public order is not the same as law and order. In the Constitution Bench decision of the Supreme Court in **Ram Manohar Lohia** v. **State of Bihar and another (AIR 1966 SC 740)** , it was held thus: “51. ....... Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. Does the expression "public order" take in every kind of disorders or only some of them? The answer to this serves to distinguish "public order" from "law and order" because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law ## **W.P.(Crl) NO. 263 OF 2014 S** :: 10 :: always affects order but before it can be said to affect public order, it must affect the community of the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under R.30 (1) (b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances. 52. ..... One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. .....” ## 10. In **Arun Ghosh** v. **State of West Bengal (AIR 1970 SC** **1228)** , it was held: “Public order is the even tempo of the life of the community than law and order. Public Order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of ## **W.P.(Crl) NO. 263 OF 2014 S** :: 11 :: public order is to be distinguished from acts directed against individuals, which do not disturb the society to the extent of causing a general disturbance of public tranquillity. It is the degree of disturbance and its effect upon the life of the community in a locality, which determines whether the disturbance amounts only to a breach of law and order.” ## 11. In **Kanu Biswas** v. **State of West Bengal (AIR 1972 SC** ## **1656)** , it was held: “6. ..... When two passengers are robbed at the point of knife while travelling in a third class compartment of a running train the act of the miscreants affects not only the passengers who are deprived of their valuables but also the other passengers who watch the whole thing in fear as helpless spectators. There is bound to be consequent terror and panic amongst the travelling public. Likewise, attack directed against a Police Party on the platform of a Railway Station by exploding bombs is bound to create panic and confusion among the passengers at the Railway Station. The acts in question in the very nature of things would adversely affect the even tempo of life of the ## **W.P.(Crl) NO. 263 OF 2014 S** :: 12 :: community and cause a general disturbance of public tranquility.” ## 12. In **Commissioner of Police** v. **C.Anita ((2004) 7 SCC** **467)** , it was held that the true distinction between the areas of law and order and public order lies not merely in the nature or quality of the act, but in the degree and extent of its reach upon society. 13. Even assuming that the public order element has to be satisfied to term the detenu as a “known goonda”, we are of the view that the activities alleged against him would certainly be harmful to the maintenance of public order. Sale or distribution of ganja among the school going children who are minors, would certainly lead to health hazards of the young generation. The number of affected students are many. A particular individual or a certain number of individuals are not targeted. Any minor student in the schools may become a prey to the illegal acts of the detenu. Consumption of narcotic drugs by the students of young age may affect their health and future, which may cause great impact not only on their families but also on the society at large. The peaceful atmosphere in the ## **W.P.(Crl) NO. 263 OF 2014 S** :: 13 :: educational institutions also would be prejudicially affected if the students become addicts to narcotic drugs. Any attempt to make the students drug addicts must be nipped in the bud. Rampant use of drugs by the student community would even mar the future of our country. Going by any standard, there is no doubt in our mind that the alleged activities of the detenu would be harmful for the maintenance of public order. On that ground also, the order of detention can be justified. For the aforesaid reasons, the Writ Petition (Criminal) is dismissed. **(K.T.SANKARAN) Judge** **(ANIL K. NARENDRAN) Judge** ahz/