Jinju v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS`** ## **`&`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 6[TH] DAY OF MARCH 2023 / 15TH PHALGUNA, 1944 WP(CRL.) NO. 1175 OF 2022 ``` ## **`PETITIONER:`** ``` JINJU AGED 38 YEARS S/O THANKACHAN, JINCHU VILASAM, ISWARYA NAGAR-18, KARRIKKODE CHERRY, MANGAD VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT, PIN – 691015 ``` ``` BY ADV ADV JOSE ANTONY ADV ABHILASH C SOMAN ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001 ``` ``` 2THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, KOLLAM, CIVIL STATION ROAD, KAANKATHU MUKKU, KOLLAM DISTRICT, PIN – 691013 3THE DISTRICT POLICE CHIEF, KOLLAM CITY, KOLLAM DISTRICT, MUNDAKKAL, KOLLAM DISTRICT, PIN – 691001 4THE CIRCLE INSPECTOR OF POLICE KILLIKOLLUR, KOLLAM DISTRICT, PIN – 691004 ``` ``` 5THE SUPERINTENDENT OF CENTRAL PRISON VIYYUR, THRISSUR, PIN – 680010 ``` ``` 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 06.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(CRL.) NO. 1175 OF 2022 ``` ``` 1 ``` ## ALEXANDER THOMAS & ZIYAD RAHMAN A.A., JJ. ================== ## W.P.(Crl) No.1175 of 2022 ================== Dated this the 6[th] day of March, 2023 ## J U D G M E N T ## ALEXANDER THOMAS, J. The prayers in the instant writ petition (criminal), seeking for habeas corpus and allied reliefs are as follows: - “(I) A writ of habeas corpus or any other appropriate writ, direction or order directing the respondents to produce the person of the detenue Linju, S/o Thankachan, Jinchu Vilasam, Iswarya Nagar-18, Karikkode Cherry, Mangad Village, Kollam Taluk, Kollam District before this Hon'ble Court and to set him at his liberty forthwith. - (ii) Declare that Ext P1 detention order and the detention pursuant to the same is illegal and vitiated. - (iii) Considering the exigencies and necessity for urgent consideration of the grievance voiced in this Writ Petition (Crl.), production of English translations of documents in vernacular, may kindly be dispensed with for the time being; - (iv) Such other orders as are deemed fit and proper in the circumstances of the case.” 2. Heard Sri.Jose Antony, learned Advocate instructed by ``` WP(CRL.) NO. 1175 OF 2022 ``` ``` 2 ``` Sri.Abhilash C. Soman, learned counsel appearing for the petitioner herein, and Sri.K.A. Anas, the learned Public Prosecutor appearing for the respondents herein. 3. The petitioner herein is the brother of the detenu involved in this case. The challenge in this writ proceedings is against Ext.P1 detention order dated 25.06.2022, issued by the 2[nd] respondent – District Collector, whereby it has been ordered under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007, that, in view of the facts and circumstances stated therein, it is imperative to detain the detenu, in order to prevent him from committing further prejudicial antisocial activities as conceived in Section 2(a) of the above Act. The brief facts leading to this case are as follows: Altogether, five crimes have been reckoned for treating the detenu as a ‘known goonda’, as conceived in Section 2(o)(ii) read with Section 2(j) of the above Act. The 5[th] and last crime was Crime No.260/2022 of Kilikkollur Police Station, registered for the offences punishable under Sections 141, 143, 147, 148, 452, 294(b), 307 read with Section 149 of IPC in which the petitioner herein has been arrayed as A1. The said crime is said to have happened on 19.03.2022 and reported ``` WP(CRL.) NO. 1175 OF 2022 ``` ``` 3 ``` to the Police on 20.03.2022. The detenu was arrested on 22.03.2022 and was remanded to judicial custody. 4. The 3[rd] respondent sponsoring authority has given 3 reports in the matter, the first one on 08.04.2022, the second one on 06.06.2022 and the third and the last one, on 14.06.2022, recommending to the 2[nd] respondent – District Collector that, in view of the facts stated therein, it is a fit case to enable the 2[nd] respondent to invoke the powers under Section 3(1) of the above Act, so as to detain the detenu under Section 3(1) of the Act, in order to prevent him from committing further prejudicial activities. The 2[nd] respondent, after considering the abovesaid reports, has passed Ext.P1 detention order dated 25.06.2022 bearing No.DCKLM/4723/2022/M16, ordering the preventive detention of the detenu under Section3(1). 5. Ext.P1 detention order has been approved by the Government on 11.07.2022. Thereafter, the Government has referred the matter to the opinion of the Advisory Board on 15.07.2022. The Advisory Board has later given its report on 25.08.2022, recommending to the Government that there is sufficient cause for the issuance of Ext.P1 detention order. ``` 4 ``` ## **`WP(CRL.) NO. 1175 OF 2022`** Thereupon, the Government has issued Ext.P2 G.O.(Rt) No.2438/2022/HOME dated 31.08.2022, confirming Ext.P1 detention order. 6. The details of the afore five crimes, so reckoned, have been stated in Ext.P1 detention order as well as in para 6 on pages 4 to 7 of the counter affidavit dated 13.01.2023, filed by the respondent State Government. The details of the said five crimes, as given in para 6 on pages 4 to 7 of the aforesaid counter affidavit of R1, reads as follows: “I). Crime No. 12/18 of Kilikollur Police Station registered u/s 143, 147, 148, 452, 294(b), 427, 354, 323, 324, 308, 149 of IPC and section 27 of Arms Act. The case is that on 30.12.2017, night, due to enmity, the detenu and the co-accused formed themselves into an unlawful assembly and trespassed into the complainant's house, assaulted and caused bodily hurt to the complainant, her husband and her sister using weapon. The detenu is the 6[th] accused. Investigation was completed and charge sheet was submitted before the Hon'ble Judicial First Class Magistrate Court, Kollam on 07.06.2018 and the case is pending trial before the Hon'ble Principal Assistant Sessions Court, Kollam as SC No. 592/19. ## II). Crime No. 542/2021 of Kundara Police Station registered u/s 341, 323, 506(i), 363, 34 of IPC. The case is that on 07.04.2021, night, the detenu and the co-accused threatened the complainant by showing knife, forcefully took him into car, caused bodily hurt and while jumping out of the car out of fear, injury was caused to the complainant. The detenu is the 1[st] accused. Investigation was completed and charge ``` WP(CRL.) NO. 1175 OF 2022 ``` ``` 5 ``` sheet was submitted before the Hon'ble Judicial First Class Magistrate Court, Kollam on 23.10.2021 and the case is pending trial before the Hon'ble Court as CC No. 2122/2021. ## - III. Crime No. 01/2021 of Excise Enforcement and Anti Narcotic Special Squad registered u/s 20(b)(ii) A & 29 of NDPS Act. The case is that on 03.01.2021, afternoon, while the detenu and other accused were coming in a motor bike, the Excise Enforcement and Anti-Narcotic Special Squad Circle Inspector and other officials restrained them, but the detenu ran away from the spot and the Excise officials recovered 126 grams of ganja kept for sale from the co-accused in the presence of independent witness. The detenu is the 1[st] accused. Investigation was completed and charge sheet was submitted before the Hon'ble Judicial First Class Magistrate Court, Sasthamkotta on 03.04.2021 and the case is pending trial before the Hon'ble Court as CC No.115/21. ## IV). Grime No. 04/2021 of Excise Enforcement and Anti-Narcotic Special Squad registered u/s 20(b)(ii) B & 29 of NDPS Act. The case is that on 18.01.2021, night, the excise officials recovered -1.5 Kg of ganja from the residence of the 2[nd] accused and arrested him at the spot and his associate took to his heals on seeing the excise officials and on questioning the 2[nd] accused, he revealed that it was the detenu and thereby both of them committed the said offences. The detenu is the 1[st] accused. Investigation was completed and charge sheet was submitted before the Hon'ble Judicial First Class Magistrate Court, Kollam on 08.04.2022 and the case is pending trial before the Hon'ble Court. ## V. Crime No. 260/2022 of Kilikollur Police Station registered u/s 141, 143, 147, 148, 452, 294(b), 307, 149 of IPC. The case is that on 19.03.2022, night, due to enmity, the detenu and co-accused trespassed into the house of the complainant, attempted to murder the complainant using a sword and also caused bodily hurt ``` WP(CRL.) NO. 1175 OF 2022 ``` ``` 6 ``` to his wife. The detenu is the 1[st] accused. The detenu was arrested in this case on 22.03.2022 and admitted to judicial custody. The case is under investigation.” The petitioner has no serious dispute that the allegations in the above crimes are as those contained in the respective FIRs. Hence, there is no serious dispute that the detenu would satisfy the definitional parameters of “known goonda”, as conceived in Section 2(o)(ii) read with Section 2(j) of the above Act. 7. The counsel for the petitioner has essentially raised four grounds, in aid of his submission that Ext.P1 detention order is liable for interdiction in this judicial review proceedings. Sri.K.A. Anas, the learned Prosecutor, has seriously opposed the said contentions. Instead of dealing with the rival contentions, we propose to render our findings on each of these contentions. Contention (a): Violation of Section 10(1) timeframe of nine weeks. 8. It is urged by the petitioner that Section 10(1) of the Act inter alia mandates that the Advisory Board should submit its opinion to the State Government within nine weeks from the date of the detention order. It is common ground that Ext.P1 detention order dated 25.06.2022 was executed by recording the arrest of ``` WP(CRL.) NO. 1175 OF 2022 ``` ``` 7 ``` the detenu on 27.06.2022. The nine weeks’ time frame is to be reckoned from 27.06.2022 (date of the detention of the detenu), and the said time is up to 29.08.2022. 9. It is specifically urged by the petitioner, in para No.14 of the writ petition (criminal) as well as ground H thereof, that there has been flagrant violation of the time mandate contained in Section 10(1) of the Act, inasmuch as the Advisory Board’s opinion has not been submitted to the Government before the expiry of the nine weeks’ time limit, which, according to the petitioner, was up to 28.08.2022. R-1 State Government has asserted, in para 22 of their counter affidavit dated 13.01.2023, that the detention order was executed on 27.06.2022 and, as per Section 9 of the Act, the case has been referred to the Advisory Board within three weeks from the date of detention. That, the case of the detenu was referred to the Advisory Board by the State Government as per letter dated 15.07.2022, which is within three weeks’ time limit. Further, it is averred that thereafter the Advisory Board has submitted its report to the Government on 25.08.2022, which is within nine weeks from the date of detention. The factual case set up by the petitioner, as if the nine weeks’ time limit is only up to ``` WP(CRL.) NO. 1175 OF 2022 ``` ``` 8 ``` 28.08.2022 may not be correct, inasmuch as reckoning nine weeks’ time limit from 27.06.2022 would go to show that the time limit is up to 29.08.2022. R-1 Government has asserted in their counter affidavit, in para 22 on page 27 of the counter affidavit, that the Advisory Board has submitted the report to the Government on 25.08.2022. The counsel for the petitioner has submitted that it may be that the Advisory Board may have tendered their opinion from their Ernakulam office as per their report dated 25.08.2022 but the report would have actually reached the Government only later. Such a factual case is not put up in the writ petition and the specific assertions in the counter affidavit have not been denied by a reply affidavit. Further, we see that the Advisory Board’s report is dated 25.08.2022 and the time limit was up to 29.08.2022 and therefore, in the absence of any specific allegation of the petitioner that the report would have actually reached the Government only after 29.08.2022, we need not delve deep into those factual issues which are not forming part of the pleadings. In other words, the petitioner has not been able to succeed in this contention. ``` WP(CRL.) NO. 1175 OF 2022 ``` ``` 9 ``` ## Contention No.(b): Non consideration of the relevant aspects regarding the judicial remand of the detenu. 10. It is urged by the counsel for the petitioner that, in the instant case, the detenu was arrested on account of his involvement in the 5[th] and the last crime on 22.03.2023 and he was remanded to judicial custody immediately thereafter. He could later get statutory bail under Section 167 of Cr.P.C. only on 27.06.2022, whereas Ext.P1 detention order has been passed on 25.06.2022, which is at a time when the judicial remand was in force and all relevant aspects regarding the judicial remand of the detenu has not been taken into account by the 2[nd] respondent and hence, it is urged that Ext.P1 detention order will get vitiated. 11. The aforesaid contentions have been strongly refuted by Sri.K.A. Anas, the learned Prosecutor appearing for the respondents. It is true that the detenu was under judicial remand since 22.03.2022 and at the time when Ext.P1 detention order was passed on 25.06.2022. The law on the subject is very clear and it is now well established by a series of rulings of the Apex Court and various High Courts that a preventive detention order can be validly passed against a person, who is already in judicial custody ``` WP(CRL.) NO. 1175 OF 2022 ``` ``` 10 ``` and for that purpose, it is necessary that the grounds for detention must show that (1) the detaining authority was aware of the fact that the detenu is already in detention and (2) there are compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression “compelling reasons”, in the context of making a preventive detention order, as against the person who is already in judicial custody, implies that there must be cogent material before the detaining authority, on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and therefore, it is necessary to detain him, in order to prevent him from engaging in such activities. It may be pertinent to refer to the decision of the Three-Judge Bench of the Apex Court in Dharmendra Suganchand Chelawat v. Union Of India And Others [1990 (1) SCC 746] para 21, which reads as follows: “21. The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that ``` WP(CRL.) NO. 1175 OF 2022 ``` ``` 11 ``` (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.” 12. Further, a Two-Judge Bench of the Apex Court, in the case, Union of India v. Dimple Happy Dhakad [AIR 2019 SC 3428], has held, in para 32 to 37 thereof, as follows: “32. The same principle was reiterated in Union of India v. Paul Manickam and another (2003) 8 SCC 342 : (AIR 2003 SC 4622, para 12) where the Supreme Court held as under:- “14. …….. Where detention orders are passed in relation to persons who are already in jail under some other laws, the detaining authorities should apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such persons on bail. The necessity of keeping such persons in detention under the preventive detention laws has to be clearly indicated. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention, and the decision in this regard must depend on the facts of the particular case. Preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order or economic stability etc. ordinarily, it is not needed when the detenu is already in custody. The detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order. If the detaining authority is reasonably satisfied with cogent materials that there is likelihood of his release and in view ``` WP(CRL.) NO. 1175 OF 2022 ``` ``` 12 ``` of his antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made. Where the detention order in respect of a person already in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated. (See N. Meera Rani v. Govt. of T.N. (1989) 4 SCC 418 : (AIR 1989 SC 2027) and Dharmendra Suganchand Chelawat v. Union of India (1990) 1 SCC 746) :(AIR 1990 SC 1196). The point was gone into detail in Kamarunnissa v. Union of India (1991) 1 SCC 128 : (AIR 1991 SC 1640) ……” ## [underlining added] 33. Whether a person in jail can be detained under the detention law has been the subject matter for consideration before this Court time and again. In Huidrom Konungjao Singh v. State of Manipur and Others (2012) 7 SCC 181 : (AIR 2012 SC 2002), the Supreme Court referred to earlier decisions including Dharmendra Suganchand Chelawat v. Union of India (1990) 1 SCC 746 : (AIR 1990 SC 1196) and reiterated that if the detaining authority is satisfied that taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. 34. In Veeramani v. State of T.N. (1994) 2 SCC 337 : (1995 AIR SCW 1730) in para (6), the Supreme Court held as under:- “6. From the catena of decisions of this Court it is clear that even in the case of a person in custody, a detention order can validly be passed if the authority passing the order is aware of the fact that he is actually in custody; if he has reason to believe on the basis of the reliable material that there is a possibility of his being released on bail and that on being so released, the detenu would in all probabilities indulge in prejudicial activities and if the authority passes an order after recording his satisfaction the same cannot be struck down.” 35. In the light of the well settled principles, we have to see, in the present case, whether there was awareness in the mind of the detaining authority that detenu is in custody and he had reason to believe that ``` WP(CRL.) NO. 1175 OF 2022 ``` ``` 13 ``` detenu is likely to be released on bail and if so released, he would continue to indulge in prejudicial activities. In the present case, the detention orders dated 17.05.2019 record the awareness of the detaining authority:- (i) that the detenu is in custody; (ii) that the bail application filed by the detenues have been rejected by the Court. Of course, in the detention orders, the detaining authority has not specifically recorded that the “detenu is likely to be released”. It cannot be said that the detaining authority has not applied its mind merely on the ground that in the detention orders, it is not expressly stated as to the “detenue’s likelihood of being released on bail” and “if so released, he is likely to indulge in the same prejudicial activities”. But the detaining authority has clearly recorded the antecedent of the detenues and its satisfaction that detenues Happy Dhakad and Nisar Aliyar have the high propensity to commit such offences in future. 36. The satisfaction of the detaining authority that the detenu is already in custody and he is likely to be released on bail and on being released, he is likely to indulge in the same prejudicial activities is the subjective satisfaction of the detaining authority. In Senthamilselvi v. State of T.N. and Another (2006) 5 SCC 676 : (2006 AIR SCW 4648), the Supreme Court held that the satisfaction of the authority coming to the conclusion that there is likelihood of the detenu being released on bail is the “subjective satisfaction” based on the materials and normally the subjective satisfaction is not to be interfered with. 37. The satisfaction of the detaining authority that the detenu may be released on bail cannot be ipse dixit of the detaining authority. On the facts and circumstances of the present case, the subjective satisfaction of the detaining authority that the detenu is likely to be released on bail is based on the materials. A reading of the grounds of detention clearly indicates that detenu Nisar Aliyar has been indulging in smuggling gold and operating syndicate in coordination with others and habitually committing the same unmindful of the revenue loss and the impact on the economy of the nation. Likewise, the detention order qua detenu Happy Dhakad refers to the role played by him in receiving the gold and disposing of the foreign origin smuggled gold through his multiple jewellery outlets and ``` WP(CRL.) NO. 1175 OF 2022 ``` ``` 14 ``` his relatives. The High Court, in our view, erred in quashing the detention orders merely on the ground that the detaining authority has not expressly recorded the finding that there was real possibility of the detenues being released on bail which is in violation of the principles laid down in Kamarunnisa (AIR 1991 SC 1640) and other judgments and Guidelines No.24. The order of the High Court quashing the detention orders on those grounds cannot be sustained.” In para 35 of Dimple Happy Dhakad’s case (supra), the Apex Court has held that even if the detaining authority has not specifically and explicitly recorded that “detenu is likely to be released”, it cannot be said that the detaining authority has not applied its mind, merely on the ground that in the detention orders, it is not expressly stated as to the “detenue’s likelihood of being released on bail” and “if so released, he is likely to indulge in the same prejudicial activities”. But the detaining authority must record the antecedent of the detenu. The Apex Court has further held in para 36 thereof, that the satisfaction of the detaining authority, that the detenu is already in detention and that he is likely to be released on bail and on being released he is likely to indulge in the same prejudicial activities, is the subjective satisfaction of the detaining authority. Further, by placing reliance on yet another decision of the Apex Court in Senthamilselvi v. State Of Tamil Nadu and Another [(2006) 5 SCC 676] now the ``` WP(CRL.) NO. 1175 OF 2022 ``` ``` 15 ``` Apex Court has further observed, in para 36 of the Dimple Happy Dhakad’s case (supra) that the satisfaction of the authority coming to the conclusion that there is likelihood of the detenu being released on bail is the “subjective satisfaction” based on the materials and normally, the subjective satisfaction is not to be interfered with. 13. Further, a Three-Judge Bench of the Apex Court in Union of India v. Ankit Ashok Jalan, [(2020) 16 SCC 185] has reiterated the abovesaid legal principles, after placing reliance on a catena of decisions. A reading of paragraph 11 of Ankit Ashok Jalan’s case (supra) would show that the decision in Dimple Happy Dhakad’s case (supra) has also been relied on therein. The aspects regarding the consideration of the judicial remand of the detenu are dealt with in para No.8 on internal page No.5 of Ext.P1 detention order (see page No.24 of the paper book), which reads as follows: “8………….. അവസാന കുറ്റകൃത്യമായ അന്വേ ഷണത്തിലുള്ള ക്രൈ ംനമ്പർ 260/22 കേ സിൽ എതിർകക്ഷിയുടേയും കൂട്ടു പ്രതികളുടെ ജാമ്യാപേ ക്ഷ നിരസിച്ചു ക ൊണ്ടുള്ള സെ ഷൻസ് ക ോടതിയുടെ ഉത്തരവ്, ക്രൈ ംനമ്പർ 260/22 കേ സിൽ കൂട്ടു പ്രതിയുടെ മുൻകൂർ ജാമ്യാപേ ക്ഷ നിരസിച്ചു ക ൊണ്ടുള്ള സെ ഷൻസ് ക ോടതിയുടെ ഉത്തരവ്, ക്രൈ ംനമ്പർ 260/22 കേ സിൽ എതിർകക്ഷി സെ ഷൻസ് ക ോടതിയിൽ രണ്ടാമത് ``` WP(CRL.) NO. 1175 OF 2022 ``` ``` 16 ``` സമർപ്പിച്ച ജാമ്യാപേ ക്ഷ, പ്രസ് **ത** ു ജാമ്യപേ ക്ഷ 07/06/22 ൽ അവസാന നിരസിച്ച ഉത്തരവ്, കുറ്റകൃത്യമായ അന്വേ ഷണത്തിലുള്ള ക്രൈ ംനമ്പർ 260/22 കേ സിലെ 3,7 കൂട്ടുപ്രതികൾക **്** ക ലഭിച്ച ജാമ്യ ഉത്തരവ് എന്നിവയുടെ പകർപ **്** പ പരിശ ോധിച്ചിട്ടുണ **്** ട. എതിർകക്ഷിയുടെ മുൻകാല പ്രവർത്തനങ്ങൾ വിലയിരുത്തിയതിൽ ജുഡീഷ്യൽ കസ്റ്റഡിയിൽനിന്നും മ മോചിതനായാൽ എതിർകക്ഷി തുടർന്നും കുറ്റകൃത്യങ്ങളിൽ ഏർപ്പെടുവാൻ സാധ്യതയുള്ളതായി കാണുന്നു. സാമൂഹ്യ വിരുദ്ധ പ്രവർത്തനങ്ങൾ തടയുന്നതിനു വേ ണ്ടിയാണ് കാപ്പ, 2007 നിയമ പ്രകാരമുള്ള കരുതൽ തടങ്കൽ എന്നതിനാലും ക ോടതി ജാമ്യ ഉത്തരവിലെ വ്യവസ്ഥകൾ സംബന്ധിച്ച ബഹു.കേ രള ഹൈ **ക** ് ക്കോടതിയുടെ ഷാജിത സുനീർ കേ സിലെ വിധി ഇനി മുതൽ ഒരു പ്രിസിഡന **്** റ ആയി കണക്കാക്കേ ണ്ടതില്ല എന്ന ബഹു. സുപ്രീക ോടതി ടി കേ സിന്മേ ലുള്ള അപ്പീലിൽ വ്യക്തമാക്കിയിട്ടുള്ളത് കണക്കിലെ ടുത്തും എതിർകക്ഷിയുടെ തുടർച്ചയായ സാമൂഹ്യ വിരുദ്ധ പ്രവർത്തനങ്ങൾ തടയുന്നതിന് ടി കക്ഷിയെ മറ കരുതൽ തടങ്കലിൽ പാർപ്പിക് **ക** ു യല്ലാതെ **്** റ മാർഗ്ഗമില്ലെന **്** ന ബബോധ്യപ്പെട്ടിട്ടുള്ളതാണ്.” A reading of para 8 of Ext.P1 would show that the detaining authority was aware about the judicial remand of the detenu, on account of his involvement in 5[th] crime, Crime No. 260/2022 of Kilikollur Police Station. Further, in paragraph 15 of Ext.P1, it is clearly stated that, in case the detenu secures bail in the 5[th] crime, then he is likely to indulge in further serious prejudicial activities. These aspects are also reiterated by the 2[nd] respondent- District Collector in the concluding para No. 15 of Ext.P1 detention order. A reading of para No.8 and para No.15 of Ext.P1 detention order ``` WP(CRL.) NO. 1175 OF 2022 ``` ``` 17 ``` would show that the requirements, as envisaged in the decisions of the Apex Court, as in Dimple Happy Dhakad’s case (supra) para Nos.35 and 36 thereof, are duly satisfied in this case. In other words, we are not in a position to concede to the abovesaid contention of the petitioner. Contention (C): Subjective satisfaction based on five crimes is vitiated. 14. The counsel for the petitioner has invited our attention to the main contents of allegations in the five crimes and has stated that the allegations in some of the crimes do not make out a serious case as against the detenu, especially the first crime, viz. Crime No.12/18 of Kilikollur Police Station, in which the detenu has been arrayed only as accused No.6 and that the material allegations against the detenu are tenuous and the said case so far may be taken into account. 15. After hearing both sides and after noting the allegations, it is seen that the allegations cannot be simply brushed aside, as the allegations are to the effect that the accused persons had formed an unlawful assembly and had trespassed into the lady complainant’s house and had assaulted and caused bodily ``` WP(CRL.) NO. 1175 OF 2022 ``` ``` 18 ``` hurt, not only to the lady complainant but also to her husband and her sister, using a weapon, and the detenu was involved as A6 and he was identified only later. The investigation has been completed and final report by way of charge sheet has been filed and the case is now pending trial as Sessions Case. Further, the counsel for the petitioner has submitted that the allegations in the 3[rd] and 4[th] crime have been registered against him by the Excise Authorities on flimsy grounds etc. After hearing both sides and after taking note of the abovesaid allegations, which are extracted in the earlier portion of the judgment, we are not in a position to agree with the said factual submissions of the petitioner. We have to bear in mind that what is essentially involved is as to whether the detenu would fulfill the objective criteria of either known goonda or known rowdy in terms of Section 2(o)(ii) read with Section 2(j) of the Act or Section 2(t) read with Section 2(p) of the Act respectively and once the objective criteria is satisfied, the only issue is as to whether, the detaining authority, with materials, has arrived at a subjective satisfaction, regarding the imperativeness and necessity for the preventive detention of the detenu, in order to prevent him from committing further prejudicial antisocial ``` WP(CRL.) NO. 1175 OF 2022 ``` ``` 19 ``` activities. It is by now well established that the sufficiency of the subjective satisfaction is not amenable to judicial review. The petitioner has no case that there are no materials, whatsoever, for the 2[nd] respondent to form the subjective satisfaction, as conceived in Section 3(1) of the Act. So also, the petitioner has no case that the allegations in the above crimes are on the basis of nonexistent facts. There is no dispute that the factual allegations in the above crimes are as those contained in the respective FIRs. The truthfulness or veracity of those allegations may be a matter of determination in further criminal proceedings. At this stage, the court exercises judicial review only to examine as to whether the objective criteria, as above, is satisfied and also as to whether the subjective satisfaction is arrived at on the basis of some materials. After hearing both sides, we are of the view that the subjective satisfaction arrived at by the detaining authority in this case cannot be successfully interdicted in judicial review proceedings and hence, the petitioner’s abovesaid contention also fails. Contention (d): Non consideration of the efficacy of Section 107 Cr.P.C. proceedings. 16. The counsel for the petitioner submits that after the ``` WP(CRL.) NO. 1175 OF 2022 ``` ``` 20 ``` institution of the first crime viz. Crime No.12/2018 of Kilikollur Police Station, the Executive Magistrate had set in motion Section 107 Cr.P.C. proceedings against the detenu and thereafter, he has not committed any crimes for the next three years and the 2[nd] , 3[rd] , 4[th] , and 5[th] crimes have been committed only subsequently in the years 2021 and 2022. 17. The learned Prosecutor has invited our attention to para No.5 of Ext.P1 detention order, given on internal pages 4 and 5 thereof (see page Nos.23 and 24 of the paper book), which reads as follows: “5.സി.ആർ.പി.സി 107 പ്രകാരമുള്ള നടപടികൾക **്** ക 31/01/2018 ൽ കിളിക ൊല്ലൂർ പ ോലീസ് സ് **റ** ് ഷനിൽ യ ക്രൈ ംനമ്പർ 87/2018 കേ സ് രജിസ്റ്റർ ചെ **്** ത ക ൊല്ലം സബ് ഡിവിഷണൽ മജിസ്ട്രേറ **്** റ മുമ്പാകെ റി **പ** ്പ്പോർട **്** ട സമർപ്പിച്ചിട്ടുള്ളതും, ആയത് എം.സി 82/18 നമ്പരായിനടപടിയിലുമാണ്. ടി നടപടിയെ ക്കുറിച **്** ച അറിവുള്ള എതിർകക്ഷി തുടർന്നും കുറ്റകൃത്യത്തിൽ ഏർപ്പെട്ടിട്ടുള്ളതാണ്. ആയതിനാൽ ക്രിമിനൽ നടപടി സംഹിത പ്രകാരമുള്ള നടപടി എതിർകക്ഷിയുടെ കുറ്റവാസനയെ തടയുവാൻ പര്യാപ്തമല്ലെന്നുബ ബോധ്യപ്പെട്ടിട്ടുള്ളതാണ്.” A reading of para No.5 supra of Ext.P1 would clearly indicate that the 2[nd] respondent detaining authority has taken into account the previous Section 107 Cr.P.C. proceedings initiated against the detenu and has opined that, going by the subsequent conduct of ``` WP(CRL.) NO. 1175 OF 2022 ``` ``` 21 ``` the detenu, such ordinary criminal laws may not suffice to prevent the detenu from committing prejudicial activities in the future. Hence, we see that due application of mind has also been rendered by the 2[nd] respondent to the abovesaid aspects, based on the previous Section 107 Cr.P.C. proceedings initiated against the detenu, after the institution of the first crime. Hence, we are constrained to overrule the last contention of the petitioner as well. The upshot of the above discussion is that, the petitioner has not made out any grounds, which have successfully made out a case for interdiction of the impugned decision making process relating to Ext.P1 detention order, in this judicial review proceedings. In that view of the matter, the above writ petition (criminal) will stand dismissed. Sd/ALEXANDER THOMAS, JUDGE Sd/ZIYAD RAHMAN A.A., JUDGE scs ## **`APPENDIX OF WP(CRL.) 1175/2022`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE DETENTION ORDER DATED 25.06.2022 OF THE 2ND RESPONDENT Exhibit P1(a)TRUE COPY OF THE GROUNDS OF DETENTION DATED 25.06.2022 Exhibit P2TRUE COPY OF THE ORDER G.O.(RT.) NO. 2438/2022/HOME DATED 31.8.2022 ```