Fazaludin v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC** ## **& THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **WEDNESDAY, THE 13TH DAY OF NOVEMBER 2013/22ND KARTHIKA, 1935** **WP(Crl.).No. 413 of 2013 (S)** **-----------------------------** ## **PETITIONER(S):** **--------------------------** **FAZALUDIN,S/O. ALIKUNJU, CHUTTUVILA PUTHANVEEDU, BHARANIKKAVU WARD, PUNALOOR PO., PUNALOOR VILLAGE, PATHANAPURAM TALUK.** **BY SENIOR ADVOCATE SRI.RENJITH THAMPAN BY ADV. SRI.M.V.ANANDAN** ## **RESPONDENT(S):** **----------------------------** ## **1. THE STATE OF KERALA** - **REPRESENTED BY THE HOME SECRETARY GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM PIN 695 001.** **2. THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE COLLECTORATE, CIVIL STATION, KOLLAM PIN-691 013** **3. THE CITY POLICE COMMISSIONER** - **KOLLAM CITY, KOLLAM, PIN 691 001.** **4. THE SUB INSPECTOR OF POLICE PUNALUR POLICE STATION, KOLLAM DISTRICT,** **PIN-691 305.** ## **5. THE SUPERINTENDENT** **CENTRAL PRISON, THIRUVANANTHAPURA, PIN-691 001.** ## ***ADDL. R6 IMPLEADED** - ***6. THE DISTRICT POLICE CHIEF (RURAL) KOLLAM, KOLLAM DISTRICT, PIN - 691001.** ***IS IMPLEADED AS PER ORDER DATED 11.10.2013 IN IA 13389/2013 IN WP(CRL) NO.413/2013.** ## **R1 TO R6 BY ADDL.DIRECTOR GENERAL OF PROSECUTION** **SRI. K.I. ABDUL RASHEED** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 13-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** **WP(Crl.).No. 413 of 2013 (S) ----------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS : ------------------------------------------** |**EXT.P1 -**|**TRUE COPY OF THE MEMO FOR EXECUTING THE ORDER OF**| |---|---| ||**DETENTION 27-5-2013.**| |**EXT.P2 -**|**TRUE COPY OF THE GROUNDS OF DETENTION ISSUED BY THE 2ND**| ||**RESPONDENT DATED 27-5-2013.**| |**EXT.P3 -**|**TRUE COPY OF THE JAIL ADMISSION AUTHORIZATION DATED**| ||**27-5-2013 OF 2ND RESPONDENT.**| |**EXT.P4 -**|**TRUE COPY OF REPORT OF THE SUB INSPECTOR OF POLICE,**| ||**PUNALOOR POLICE STATION DATED 16-2-2013.**| |**EXT.P5 -**|**TRUE COPY OF THE CERTIFICATE OF DEPUTY SUPERINTENDENT OF**| ||**POLICE, PUNALOOR.**| |**EXT.P6 -**|**TRUE COPY OF THE FINAL REPORT FILED BY THE 3RD RESPONDENT**| ||**DATED -04-2013.**| |**EXT.P7 -**|**TRUE COPY OF THE ORDER OF REVOCATION DATED 19-7-2010 OF**| ||**ADDITIONAL CHIEF SECRETARY.**| |**EXT.P8 -**|**TRUE COPY OF THE APPLICATION DATED 12-7-2013 FILED BEFORE**| ||**THE ADVISORY BOARD.**| |**EXT.P9 -**|**TRUE COPY OF THE ORDER DATED 15-6-2012 IN HRMP NO.2320/2011**| ||**ON THE FILE OF THE KERALA HUMAN RIGHTS COMMISSION.**| |**EXT.P10 -**|**TRUE COPY OF THE FIR IN CRIME NO.1293/2010 REGISTERED BY**| ||**PUNALOOR POLICE STATION AGAINST 20 CPM ACTIVISTS WHO**| ||**ATTACKED THE DETENUE.**| |**EXT.P11 -**|**TRUE COPY OF THE WOUND CERTIFICATE OF THE DETENUE IN**| ||**CR.NO.1293/2010.**| |**EXT.P12 -**|**TRUE COPY OF THE WOUND CERTIFICATE OF REJI RAJ DATED**| ||**27-8-2010.**| |**EXT.P13 -**|**TRUE COPY OF THE AFFIDAVIT DATED 03-07-2011 FILED BY THE**| ||**DEFACTO COMPLAINANT ISMAIL KUNJI IN CRIME NO.1136/2011.**| |**EXT.P14 -**|**TRUE COPY OF THE AFFIDAVIT DATED 1-7-2013 FILED BY THE**| ||**DEFACTO COMPLAINANT NAZAR BEFORE THE JUDICIAL FIRST CLASS**| ||**MAGISTRATE COURT PUNALOOR IN CRIME NO.146/2013.**| |**EXT.P15 -**|**TRUE COPY OF THE AFFIDAVIT DATED 8-7-2013 BEFORE THE**| ||**JUDICIAL FIRST CLASS MAGISTRATE COURT PUNALOOR IN CRIME**| ||**NO.147/2013.**| |**EXT.P16 -**|**TRUE COPY OF THE ORDER OF ACQUITTAL OF THE DETENUE DATED**| ||**11-3-2013 IN CC.NO.737/2010 ON THE FILE OF JUDICIAL FIRST CLASS**| ||**MAGISTRATE COURT III, PUNALOOR.**| **(Contd...)** **WP(Crl.).No. 413 of 2013 (S)** ## **EXT.P17 - TRUE NEWSPAPER REPORTS DATED 11-6-2013 PUBLISHED IN DEEPIKA DAILY.** - **EXT.P17(a) - TRUE NEWSPAPER REPORTS DATED 11-6-2013 PUBLISHED IN KERALA KAUMUDI DAILY.** - **EXT.P17(b) - TRUE NEWSPAPER REPORTS DATED 11-6-2013 PUBLISHED IN MADHYAM DAILY.** - **EXT.P17(c) - TRUE NEWSPAPER REPORTS DATED 11-6-2013 PUBLISHED IN MATHRUBHUMI DAILY.** - **EXT.P17(d) - TRUE NEWSPAPER REPORTS DATED 11-6-2013 PUBLISHED IN MANORAMA DAILY.** - **EXT.P18 - TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY ST.THOMAS HOSPITAL PUNALOOR TO THE PETITIONER DATED 13-7-2013.** - **EXT.P19 - TRUE COPY OF THE ORDER NO.GO.(RT) NO.2099/2013/HOME DATED 26-7-2013 CONFIRMING EXT.P1 DETENTION ORDER ISSUED BY THE GOVERNMENT OF KERALA.** - **EXT.P20 - COPY OF THE COMPROMISE PETITION IN CC NO. 965/2012 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, PUNALUR.** - **EXT.P21 - COPY OF THE ORDER IN CC NO. 965/2012 DATED 13.8.2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, PUNALOOR.** - **EXT.P22 - COPY OF THE JUDGMENT OF THE JUDICIAL MAGISTRATE OF THE CLASS III PUNALUR IN CC NO. 849/2013 DATED 23.9.2013.** - **EXT.P23 - COPY OF THE JUDGMENT OF THE JUDICIAL MAGISTRATE OF THE CLASS III PUNALUR IN CC NO. 848/2013 DATED 9.9.2013.** - **EXT.P24 - COPY OF THE JUDGMENT OF THE JUDICIAL MAGISTRATE OF THE CLASS III PUNALUR IN CC NO. 737/2010 DATED 11.3.2013.** **RESPONDENT(S)' EXHIBITS : NIL** **----------------------------------------------------------** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ANTONY DOMINIC & P.D.RAJAN, JJ ......................................... WP(Crl) No.413 of 2013 ......................................... Dated 13[th] November, 2013 ## JUDGMENT ## **ANTONY DOMINIC, J 'CR'** Petitioner is the father of Shafeek (hereinafter referred to as the detenu for short). Detenu is an activist of Communist party of India and is the Branch Secretary of Punalur Market Road Branch of the party. He is also an activist of All India Youth Federation in Punalur. He was accused in Crime Nos.949 of 2008, 902 of 2009, 1296 of 2010, 1319 of 2010, 1136 of 2011, 146 of 2013 and 147 of 2013, all registered at Punalur Police Station for offences under the Indian Penal Code and Prevention of Damage to Public Property Act. 2. Pleadings show that narrating the involvement of the detenu in the aforesaid cases, 4[th] respondent made Ext.P4 report to the 3[rd] respondent on 16.2.2013. On the basis of the said report, additional 6[th] respondent submitted Ext.P6 report under Section 3 of the Kerala Anti Social Activities (Prevention) Act 2007 (hereinafter wpcr 413/2013 2 referred to as the Act for short) to the second respondent. In Ext.P6 report, second respondent was requested to initiate action against the detenu under the Act for classifying him as a known rowdy under Section 2(p) of the Act and to detain him under Section 3 thereof. 3. On the basis of the report thus received, second respondent initiated action under the Act and issued order dated 27.5.2013 classifying the detenu as a known rowdy and ordering his detention as recommended in Ext.P6. Ext.P1, P2 and P3 are the memo for executing the detention order, the grounds of detention and the Jail Admission Authorisation, which were all issued on 27.5.2013 in pursuance to the detention order. Based on the detention order, the detenu was arrested and detained on 9.6.2013 and since then, he is undergoing detention. It is in this background, this writ petition has been filed by his father seeking to impugn the order of detention and praying for a writ of habeas corpus to set the detenu at liberty. 4. We heard the learned counsel for the petitioner wpcr 413/2013 3 and learned Additional Director General of Prosecution, who appeared for the respondents. 5. The contention raised by the learned counsel for the petitioner are that Section 3(3) of the Act was not complied with, that the detenu was entitled to the protection of the Vth proviso to Section 2(p), that Crime Nos.146 and 147 of 2013 in which the detenu was acquitted on 23.9.2013 and 9.9.2013 by Exts.P22 and P23 judgments respectively should not have been relied on, that relevant documents were not supplied to the detenu, that the order is vitiated for malafides of the 4[th] respondent and that the order is bad for absence of subjective and objective satisfaction of the detaining authority. 6. Referring to the counter affidavits filed by the respondents, learned ADGP sought to contradict each one of these contentions and he also made available the files maintained by the respondents in order to substantiate his submissions. 7. The first contention raised is that Section 3(3) of wpcr 413/2013 4 the Act was not complied with. Learned counsel contended that Section 3(3) of the Act provides that the detention order shall be approved by the government within 12 days of the issuance of the order. It was contended that the detention order issued on 27.5.2013 was approved by the Government only on 19.6.2013 and therefore, according to him, Section 3(3) is violated. Section 3(3) of the Act reads thus:- “ **3. Power to make orders for detaining Known Goondas and Known Rowdies** - (1) xxxx ## (2)xxxxx (3) When any order is made under this section by the authorised officer under sub-section (2), he shall forthwith report the fact to the Government and the Director General of Police, Kerala, together with a copy of the order and supporting records which, in his opinion, have a bearing on the matter and no such order shall remain in force for more than 12 days, excluding public holidays, from the date of detention of such Known Goonda or Known Rowdy, unless, in the meantime, it has been approved by the Government or by the Secretary, Home Department if generally so authorised in this regard by the Government”. 8. A plain reading of this Section, makes it clear that wpcr 413/2013 5 the 12 days' period specified for the approval of the detention order, has to be reckoned, not from the date of the order, but from the date of detention. In so far as this case is concerned, the detenu was detained on 9.6.2013 and the Government approved the order of detention on 19.6.2013. If that be so, the approval of the order of detention in terms of Section 3(3) of the Act is well within the 12 days period specified therein. Therefore, we are unable to accept the contention raised by the learned counsel. 9. The second contention raised by the counsel was that the detenu was eligible to claim the benefit of the Vth proviso to Section 2(p) of the Act. Section 2(p) defines known rowdy and its Vth proviso reads thus:- “2. **Definitions** - In this Act, unless the context otherwise requires - (a) to (o) xxxxxxxxxxxxx (p) “known rowdy” means any person, who had been, by reason of acts done within the previous seven years as calculated from the date of the order imposing any restriction or detention under this Act, - (i) made guilty, by a competent Court at least once for an offence of the nature under wpcr 413/2013 6 item (i) of clause (t) of Section 2 or any offence notified as such under the said clause; or (ii) made guilty, by a competent Court at least twice for any offence of the nature mentioned under item (ii) of clause (t) of Section 2 or any offence notified as such under the said clause; or (iii) found, on investigation or enquiry by a competent police officer or other authority, on complaints initiated by persons other than police officers, in three separate instances not forming part of the same transaction to have committed any offence mentioned in clause (t) of Section 2. Provided that any offence committed by a person :- (i)xxxx (ii)xxxxx (iii)xxxxx (iv)xxxxxx (v) as a member of a recognised political party, by virtue of his involvement merely by his presence, but without any overt act constituting the offence mentioned in clause (t) of Section 2 without being involved in any criminal conspiracy facilitating the same, in an incident which occurred due to the general involvement of the workers of that party in an agitation or protest or programme organised by the party with prior information given to the police officer or Magistrate having jurisdiction; or vi) by virtue of his involvement in a criminal act committed by him before he had attained the age of eighteen years”. wpcr 413/2013 7 10. Reading of the Vth proviso to Section 2(p) reveals that what is sought to be achieved by the legislature by incorporating this provision is to exclude from the offences which are to be reckoned in terms of Section 2 (p)(i) to (iii) cases where a person as a member of a recognised political party gets involved in a case by his mere presence and without any overt act constituting the offence. However, to claim the benefit, the incident which led to the case, should also have occurred due to the general involvement of the workers of the party during an agitation or protest or programme organized by it with prior information given to the police officer or the Magistrate having jurisdiction. 11. Learned counsel for both sides took us through the grounds of detention which contains the details of the cases that were relied on against the detenu. In all these cases, there are allegations of overt acts against the detenu. The allegations also do not disclose that these cases arose out of general involvement of the workers of the party of the detenu during an agitation or protest or wpcr 413/2013 8 programme organized by the party. Further, it also does not establish that the incident which gave rise to the allegations were during any programme of the party which was organized with prior information given to the police officer or Magistrate. In other words, the materials available before this court shows that the Vth proviso to Section 2(p) of the Act is not attracted to the cases, which were relied on against the detenu. Therefore, this contention raised by the petitioner also does not merit acceptance. 12. Learned counsel then contended that Crime Nos.146 and 147 of 2013 should not have been taken into account by the detaining party. This argument was raised on the basis that in these cases, the detenu was acquitted on 23.9.2013 and 9.9.2013 respectively. In this case, the detenu was detained on the basis that he is a known rowdy and that detention is on the basis of Section 2(p)(iii) which reads thus:- - “2. **Definitions** - In this Act, unless the context otherwise requires - wpcr 413/2013 9 (a) to (o) xxxxxxxxxxxxx (p) “known rowdy” means any person, who had been, by reason of acts done within the previous seven years as calculated from the date of the order imposing any restriction or detention under this Act, - (i) xxxxxx (ii) xxxxxxx (iii) found, on investigation or enquiry by a competent police officer or other authority, on complaints initiated by persons other than police officers, in three separate instances not forming part of the same transaction to have committed any offence mentioned in clause (t) of Section 2”. 13. Reading of this provision shows that if on investigation, the detenu is found to have committed the offences specified in Section 2(t) in three separate instances not forming part of the same transaction, the ingredients of the section are attracted. The fact that as on the date of the detention order, all the seven cases were pending against the detenue is undisputed. In this case, the detention order was issued on 9.6.2013 and the acquittal claimed were only on 23.9.2013 and 9.9.2013. Having regard to the language of Section 2(p) wpcr 413/2013 10 we are inclined to think that a development subsequent to the order of detention cannot be profitably relied on by the detenu. Secondly, even if these two cases are excluded, still the requirement of three separate instances specified in Section 2(p) is satisfied in this case. Even apart from that, such a situation is saved by Section 7(4) of the Act which reads thus:- ## “ 7. **Grounds of order of detention to be disclosed** - (1) xxxxxxxxx (2)xxxxxxxxxx ## (3)xxxxxxxxxx (4) The order of detention shall not be deemed to be invalid merely because one or more of the facts or circumstances cited among the grounds are vague, non-existent, irrelevant or invalid for any reason whatsoever and such order shall be deemed to have been made by the Government or the Authorised Officer after having been satisfied about the need for detention with reference to the remaining facts and circumstances, provided that the minimum conditions for being classified as a known goonda or known rowdy are satisfied”. wpcr 413/2013 11 14. This position has also been clarified by this court in the judgments in **Sruthi V. State of Kerala** (2009 KHC 1207) and **Fousiya V. State of Kerala** (2012 (3) KHC 131). For those reasons, this contention of the learned counsel for the petitioner also is only to be rejected. 15. Further contention raised by the learned counsel for the petitioner was that the relevant documents, which were relied on by the detaining authority, were not supplied to him. In this context, specific grievance of the learned counsel was that the detention order issued on 27/5/13 was not served on the detenu. Further, he also contended that the FIR of the cases relied, the earlier detention order that was revoked on the basis of the report of the Advisory Board and the report of the Advisory Board were not supplied to the detenu. 16. In so far as the non supply of the detention order is concerned, that is covered by the pleadings in grounds (a) and (e) of the writ petition, whereas, the wpcr 413/2013 12 complaint regarding the alleged non supply of the FIR, the previous detention order and the report of the Advisory Board, are not covered by the pleadings in the petition. 17. However, the learned Additional Director General of Prosecution made available the files which show that the detention order and the other documents which were allegedly not served on the detenu, were in fact served on him, and that the detenu has signed copies thereof, in acknowledgment of its receipt. Such signatures have been affixed by the detenu on 9/6/13, when he was detained pursuant to the order of detention. Therefore, we are unable to entertain this contention of the learned counsel for the petitioner. 18. The next contention raised by the learned counsel was that the order was vitiated by _mala fides_ of the 4[th] respondent. He referred to the averments in para 5 of the writ petition, which according to the learned counsel, establishes that the 4[th] respondent had reason to be antagonistic to the detenu and that it was therefore that he made the report, which led to the detention order wpcr 413/2013 13 in question. Therefore, counsel contended that the detention order is the result of _mala fides_ of the 4[th] respondent and hence is illegal. 19. Although it is true that even in a case of preventive detention, the detenu is entitled to take a plea that the order of detention is vitiated on account of _mala fides_ of any one of the officials, who are involved in the process, it is elementary that when a plea of _mala fides_ is urged by a litigant, the person against whom _mala fides_ are alleged, should be impleaded in the case, in his personal capacity, and that, specific allegations should be levelled against him. In so far as this case is concerned, the allegations of _mala fides_ are levelled against the 4[th] respondent, but however, the petitioner has not chosen to implead the 4[th] respondent in his personal capacity. In such a situation, this Court will not be justified in taking cognizance of the plea of _mala fides_ now urged before us. Secondly, the 4[th] respondent made his report to the 6[th] respondent, who on receipt thereof, applied his mind to the allegations and on being satisfied, made his report wpcr 413/2013 14 under Section 3 of the Act to the 2[nd] respondent. The 2[nd] respondent considered the entire matter and issued the order of detention, which was approved, and thereafter, confirmed by the Government. In such a case, we cannot accept the contention that the detention order is vitiated due to the _mala fides_ of the 4[th] respondent. 20. The last contention raised by the learned counsel for the petitioner was that both subjective and objective satisfaction, for classifying the detenu as a 'known rowdy' under Section 2(p) and for his detention were vitiated. In this context, he relied on the judgments of this Court in _**Radha Thankappan v. State of Kerala and Others**_ (2009(3) KHC 7), _**Praseetha v. State of Kerala and Others**_ (2009(4) KHC 382) and _**Sreedevi v. State of Kerala and Others**_ (2012 KHC 575). We have gone through these judgments and we have no quarrel with the principle of law laid down in those judgments as well. However, the question is whether those principles have any application in so far as the facts of this case are concerned. wpcr 413/2013 15 21. In so far as this case is concerned, admittedly the detenu was involved in more than three cases involving offences specified in Section 2(t) of the Act and such cases satisfied the requirements of Section 2(p) also. It was considering the said situation that the report was made by the 6[th] respondent to the 2[nd] respondent, recommending classification of the detenu as a 'known rowdy' and his detention under Section 3 of the Act. 22. The detention order shows that these materials thus supplied by the 6[th] respondent were considered by the 2[nd] respondent in exercise of his powers under Section 3(2) and on the materials that were available before him, he was satisfied that the detenu was liable to be classified as a 'known rowdy' under Section 2(p) of the Act and that in order to prevent the detenu from carrying on antisocial activities as defined in Section 2(a) of the Act, it is necessary to keep him in preventive detention. Therefore, neither in the process of objective satisfaction nor in the process of subjective satisfaction, has the 2[nd] respondent committed any illegality, justifying the petitioner to raise wpcr 413/2013 16 such a contention before us. We are not impressed by this contentions either. Thus, we do not find substance in any one of the contentions raised before us and therefore the writ petition is only to be dismissed and we do so. ANTONY DOMINIC, JUDGE P.D.RAJAN, JUDGE lgk/Rp