Dr. Rekha Gopakumar v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH SATURDAY, THE 1ST DAY OF DECEMBER 2012/10TH AGRAHAYANA 1934 WP(Crl.).No. 386 of 2012 (S) ---------------------------- PETITIONER(S): ------------- DR.REKHA GOPAKUMAR, AGED 38 YEARS W/O. GOPAKUMAR, 'ASHIRWAD', CHETTIOD PITTUPEEDIKA, KODUVAYOOR P.O., PALAKKAD DISTRICT. BY ADVS.SRI.O.V.MANIPRASAD SRI.SAJU J PANICKER RESPONDENT(S): -------------- 1. STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT HOME DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM PIN-695001. 2. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE PALAKKAD, PIN-678001. 3. THE DISTRICT POLICE CHIEF PALAKKAD, PIN-678001. 4. THE SUB INSPECTOR OF POLICE PUDUNAGARAM POLICE STATION, PALAKKAD DISTRICT PIN-678503. 5. THE SUPERINTENDENT OF CENTRAL PRISON POOJAPPURA, THIRUVANANTHAPURAM, PIN-695012. 6. SRI. HARIDAS CIRCLE INSPECTOR OF POLICE, KUZHALMANNAM, PALAKKAD PIN-678502. BY ADV. ADDL.STATE PUBLIC PROSECUTOR (SHRI.K.I. ABDUL RASHEED) THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 16.11.2012, THE COURT ON 01-12-2012 DELIVERED THE FOLLOWING: W.P.(Crl.)386/2012 ## APPENDIX. ## PETITIONER'S EXHIBTIS: |EXT.P1:|A TRUE COPY OF THE DETENTION ORDER DATED 5.6.2012 OF THE| |---|---| ||2ND RESPONDENT.| |EXT.P2:|TRUE COPY OF THE GROUNDS OF DETENTION SERVED ON THE DETENU.| |EXT.P3:|TRUE COPY OF THE REPORT DATED 14.5.2012 OF THE 3RD| ||RESPONDENT.| |EXT.P4:|A TRUE COPY OF THE ORDER DATED 24.2.2012 IN| ||CRL.M.P.NO.526/2012 OF THE COURT OF SESSIONS, PALAKKAD.| |EXT.P5:|A TRUE COPY OF THE PETITION FOR CANCELLATION OF BAIL FILED| ||BY THE 4TH RESPONDENT.| |EXT.P6:|A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE DETENU| ||IN CRL.M.P.NO.728/2012 ON 9.4.2012.| |EXT.P7:|A TRUE COPY OF THE ORDER DATED 11.6.2012 IN| ||CRL.M.P.NO.828/2012 IN CRL.M.P.526/2012 OF THE SESSIONS| ||COURT, PALAKKAD.| |EXT.P8:|A TRUE COPY OF THE PETITION SUBMITTED BY THE DETENU BEFORE| ||THE 3RD RESPONDENT ON 17.3.2012| |EXT.P9:|A TRUE COPY OF THE CRL.M.C.NO.;919/2012 DATED 21.3.2012.| |EXT.P10:|A TRUE COPY OF THE COMPLAINT DATED 23.3.2012 IN CRL.M.P.1589| ||OF 2012.| |EXT.P11:|A TRUE COPY OF THE REPRESENTATION DATED 18.6.2012 AND| ||SUBMITTED BY THE DETENU BEFORE THE 1ST RESPONDENT.| |EXT.P12:|A TRUE COPY OF THE REPRESENTATION DATED 18.6.2012 AND| ||SUBMITTED TO THE ADVISORY BOARD BY THE DETENU FROM THE| ||CENTRAL PRISON.| |EXT.P13:|A TRUE COPY OF THE COVERING LETTER DATED 14.6.2012,| ||FOWARDING EXHIBITS P10 AND P11 ALONG WITH THE POSTAL| ||RECEIPT, ACKNOWLEDGMENT AND DELIVERY REPORT.| RESPONDENTS' EXHIBITS: 'NIL' //TRUE COPY// P.S. to JUDGE. krs. ## **PIUS C. KURIAKOSE & BABU MATHEW P. JOSEPH, JJ.** -----------------------------------------------------------W.P.(Crl.) No. 386 of 2012-S ------------------------------------------------------------Dated this the 1[st] day of December, 2012 ## **JUDGMENT** ## **Babu Mathew P. Joseph, J.** This Writ Petition is filed under Article 226 of the Constitution of India praying for the following reliefs: - (i) A writ of habeas corpus or any other appropriate writ, direction or order directing the respondents to produce the person of the detenu Gopakumar @ Chinju, S/o Parameswaran Nair, Chethiyode, Koduvayoor P.O., Palakkad District before this Hon'ble Court and to set him at liberty forthwith. - (ii) Declare that Ext.P1 detention order and the detention pursuant to the same are illegal and vitiated. - (iii) Such other orders as are deemed fit and proper in the circumstances of the case. [W.P.(Crl.).No.386/2012] 2 2. The petitioner is the wife of the detenu. The detenu was placed under preventive detention with immediate effect at Central Prison, Viyyur, by Ext.P1 order of detention dated 5.6.2012 passed by the second respondent, the District Collector and District Magistrate. The second respondent has passed Ext.P1 order exercising his powers under Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 ( for short, KAA(P)A). Pursuant to Ext.P1, the detenu was taken into custody by the sixth respondent, the Circle Inspector of Police, on 5.6.2012 itself and admitted him to the Central Prison, Viyyur. Subsequently, he was transferred to the Central Prison, Poojappura, and he is continuing under detention there. Ext.P1 order has been approved by the Government, the first respondent, as per order dated 15.6.2012. The Advisory Board sent a report dated 2.8.2012 finding that there was sufficient cause to detain the detenu. Thereafter, the first respondent has issued order dated 9.8.2012 confirming the order of detention and directing to continue the detention for six months from the date of detention. The petitioner challenges Ext.P1 order of detention on various [W.P.(Crl.).No.386/2012] 3 grounds in this Writ Petition. 3. Heard Shri. O.V.Maniprasad, the learned counsel appearing for the petitioner, and Shri. K.I. Abdul Rasheed, the learned Addl. State Public Prosecutor appearing for the respondents. Detailed arguments have been advanced by both the sides before us. They have relied on various rulings in support of their contentions. 4. The District Police Chief, third respondent, submitted Ext.P3 report dated 14.5.2012 before the second respondent requesting him to pass an order under Section 3 of KAA(P)A for detaining the detenu as he is a 'known rowdy' indulging himself in anti-social activities necessitating his detention. The second respondent, after considering Ext.P3, found the detenu to be a 'known rowdy' as defined under Section 2(p) of KAA(P)A. The second respondent, in Ext.P1 detention order, relied on the following six criminal cases in which the detenu is involved: |**Sl.**<br>**No.**|**Crime**<br>**Number**|**Name of**<br>**Police Station**|**Date of**<br>**Occurrence**|**Offences Alleged**| |---|---|---|---|---| |1|371 of 2008|Kozhinjampara|02.09.2008|143, 147, 148, 323, 324, 328,<br>342, 427 and 149 of IPC| [W.P.(Crl.).No.386/2012] 4 |**Sl.**<br>**No.**|**Crime**<br>**Number**|**Name of**<br>**Police Station**|**Date of**<br>**Occurrence**|**Offences Alleged**| |---|---|---|---|---| |2|526 of 2008|Town South,<br>Palakkad|22.09.2008|143, 147, 341, 506(ii) and<br>149 of IPC| |3|434 of 2010|Pudunagaram|18.09.2010|452, 341, 294(b) and 427 of<br>IPC| |4|163 of 2011|Pudunagaram|14.04.2011|324 and 294(b)of IPC| |5|87 of 2012|Pudunagaram|08/09.02.2012|447, 427, 452 and 34 of IPC| |6|156 of 2012|Pudunagaram|10.03.2012|294(b)and 506(i)of IPC| In all these cases, after investigation, Final Reports have been filed before the courts. 5. Learned counsel for the petitioner submitted that in Ext.P2 grounds of detention, the second respondent specifically stated that the third respondent submitted a proposal dated 25.6.2011 for passing an order of detention under KAA(P)A against the detenu based on the first four cases out of the six cases now relied on. But, as stated in Ext.P2, that proposal was returned to the third respondent by the second respondent finding that no cases enabling to take action under KAA(P)A were there. Therefore, the proposal so made by the third respondent to the second respondent and the decision of the second respondent not to take action under KAA(P)A against the detenu [W.P.(Crl.).No.386/2012] 5 are materials relied on by the second respondent while issuing Ext.P1 order of detention. But, those materials have not been served on the detenu, learned counsel submitted. The fact that those materials have not been served on the detenu remains undisputed. ## 6. The Supreme Court in **Union of India** v. **Ranu Bhandari** [(2008) 17 SCC 348] held as follows: “27. It has also been the consistent view that when a detention order is passed all the material relied upon by the detaining authority in making such an order, must be supplied to the detenu to enable him to make an effective representation against the detention order in compliance with Article 22(5) of the Constitution, irrespective of whether he had knowledge of the same or not. These have been recognised by this Court as the minimum safeguards to ensure that preventive detention laws, which are an evil necessity, do not become instruments of oppression in the hands of the authorities concerned or to avoid criminal proceedings which would entail a proper investigation.” Article 22(5) of the Constitution of India reads as follows: [W.P.(Crl.).No.386/2012] 6 “(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.” Therefore, when a person is detained in pursuance of an order made under KAA(P)A, the authority making that order of detention is duty bound to communicate, as soon as possible, to the detenu the grounds on which the order of detention has been passed and shall afford him an opportunity of making a representation against that order at the earliest. The Constitution of India holds high the personal liberty of every person. The laws governing preventive detention are only exceptions for the purpose of using only in appropriate cases and, that too, complying with the safeguards prescribed by such Statutes as well as the principles laid down by the authoritative pronouncements of the Constitutional Courts. The right of the detenu to get copies of the relevant materials relied on by the [W.P.(Crl.).No.386/2012] 7 detaining authority is a right guaranteed by the Constitution as well as by KAA(P)A. 7. The right to make a representation against the order of detention is a fundamental right guaranteed under Article 22(5) of the Constitution. A right to represent against an order of detention before the Government and the Advisory Board is available to the detenu under KAA(P)A. The grounds of detention with copies of relevant documents shall be furnished to the detenu as soon as possible. The right so guaranteed under the Constitution and under KAA(P)A must be real and effective. Such a right should enable the detenu to make an effective representation against his detention. Unless the relevant documents are furnished to the detenu, he cannot make an effective representation against his detention. Therefore, nonsupply of relevant documents pertaining to the grounds of detention will be violative of Article 22(5) of the Constitution as well the provisions of KAA(P)A. Here, the materials regarding the earlier proposal made by the third respondent to the second respondent for the detention of the detenu and the decision declining action under KAA(P)A taken by the second respondent [W.P.(Crl.).No.386/2012] 8 finding that the four cases relied on were not sufficient for action under KAA(P)A had not been served on the detenu. The authorities concerned were duty bound to serve those relevant materials on the detenu. Since those documents were not served on him, the detenu was prevented by the authorities from making an effective representation against his detention as per Ext.P1 order. This flaw on the part of the authorities is fatal in nature and hence on this ground alone the detention order passed against the detenu is liable to be quashed. 8. Learned counsel for the petitioner submitted that the sponsoring authority, third respondent, stated in his Ext.P3 report submitted to the second respondent that proceedings under Section 107 Cr.P.C. had been initiated against the detenu. This is not considered by the second respondent. No mention is made in respect of this fact either in Ext.P1 detention order or in Ext.P2 grounds of detention. The second respondent was bound to consider as to whether the proceedings under Section 107 Cr.P.C. initiated by the police against the detenu were sufficient for preventing the detenu from committing anti-social activities or not. For such a consideration, the second respondent ought to [W.P.(Crl.).No.386/2012] 9 have called for all the connected materials in respect of the proceedings under Section 107 Cr.P.C. and considered them. But, the second respondent has ignored such a relevant aspect in this case. Therefore, it is quite evident that the second respondent has not applied his mind to this relevant matter while arriving at his conclusion that the detenu has to be detained by passing Ext.P1 order of detention, learned counsel submitted. 9. The third respondent has specifically stated in his Ext.P3 report that the Sub Inspector of Police, Pudunagaram, has reported to him that proceedings under Section 107 Cr.P.C. had been initiated against the detenu. But, Ext.P3 does not show that the documents in respect of such proceedings had been forwarded to the second respondent along with that report. The second respondent did not mention about the proceedings under Section 107 Cr.P.C. initiated against the detenu either in Ext.P1 order of detention on in Ext.P2 grounds of detention. There is nothing either in Ext.P1 or in Ext.P2 that the second respondent has applied his mind to such proceedings under Section 107 Cr.P.C. initiated against the detenu while passing the order of detention. The proceedings under Section 107 Cr.P.C. are [W.P.(Crl.).No.386/2012] 10 initiated against a person for preventing him from committing breach of peace or disturbing public tranquillity. In other words, it is intended for keeping peace and public tranquillity. KAA(P)A is also intended to prevent persons from committing anti-social activities. If proceedings initiated under Section 107 Cr.P.C. are sufficient for preventing a person from committing anti-social activities, the detention order under Section 3 of KAA(P)A is not necessary. Whether the proceedings under Section 107 Cr.P.C. are sufficient or not is a question of fact depending upon various factors. In the case of certain persons, proceedings under Section 107 Cr.P.C. may be sufficient for preventing them from committing anti-social activities causing breach of peace or disturbing public tranquillity. In respect of certain other persons, the proceedings under Section 107 Cr.P.C. may not be sufficient. One thing is quite certain. Unless the detaining authority specifically addresses the question whether the proceedings under Section 107 Cr.P.C. initiated against a person are sufficient or not in the light of the materials concerning those proceedings produced before that authority, the question whether the proceedings under Section 107 Cr.P.C. are sufficient [W.P.(Crl.).No.386/2012] 11 or not cannot be decided. 10. In the case on hand, the concerned Sub Inspector of Police has reported to the third respondent that the proceedings under Section 107 Cr.P.C. had been initiated against the detenu and, in turn, the third respondent has reported that fact to the second respondent. The second respondent has not considered such a relevant question before passing Ext.P1 order of detention against the detenu. The second respondent ought to have called for the materials concerning the proceedings under Section 107 Cr.P.C. initiated against the detenu and considered them. After such consideration, he should have arrived at the conclusion whether such proceedings initiated against the detenu were sufficient or not for preventing him from committing anti-social activities causing breach of peace or disturbing public tranquillity. But, the second respondent has not applied his mind at all to such a relevant matter before passing Ext.P1 order. Therefore, absence of application of mind on his part is writ large in this case. This also vitiates the detention order. For the foregoing reasons, the petitioner is entitled to succeed on both the grounds urged by her learned counsel. [W.P.(Crl.).No.386/2012] 12 Ext.P1 detention order is liable to be quashed and the detenu is entitled to be released forthwith. Therefore, we quash Ext.P1 order issued by the second respondent and approved and confirmed by the first respondent. The Superintendent, Central Prison, Poojappura, is directed to set the detenu at liberty forthwith, if he is not wanted in any other case. The Registry of this Court is directed to issue release order forthwith. This Writ Petition is allowed. Sd/- **PIUS C. KURIAKOSE, JUDGE.** Sd/- **BABU MATHEW P. JOSEPH,** **JUDGE.** krs.