Kamalakshi A M v State of Kerala & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS`** ## **`&`** ## **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.`** ``` TUESDAY, THE 7[TH] DAY OF MARCH 2023 / 16TH PHALGUNA, 1944 ``` ## **`WP(CRL.) NO. 5 OF 2023`** ## **`PETITIONER/S:`** ``` KAMALAKSHI A M AGED 70 YEARS KAANA MEETHALE VEETTIL HOUSE, KAMKOL AMSOM, ALAKKAD, PERINGOME, KANNUR DISTRICT 670353, PIN - 670353 ``` ``` BY ADVS. C.RAJENDRAN R.S.SREEVIDYA P.PREMARAJAN ``` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031` - `2 THE DISTRICT MAGISTRATE CIVIL STATION COLLECTORATE KANNUR, PIN - 670001` - `3 DISTRICT POLICE CHIEF OFFICE OF THE DISTRICT POLICE CHIEF KANNUR KANNUR, PIN - 670001` - `4 STATION HOUSE OFFICER PERINGOME POLICE STATION PERINGOME KANNUR, PIN - 670353` - `5 THE SUPERINTENDENT CENTRAL PRISON VIYYUR THRISSUR 680010, PIN - 680010` - `6 THE SUPERINTENDENT CENTRAL PRISON KANNUR KANNUR, PIN - 670010 BY ADVS. PUBLIC PROSECUTOR ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11) ADDL. STATE PUBLIC PROSECUTOR(AG-28)` ``` SRI. K.A.ANAS-GP ``` ``` THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 07.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(Crl) No.5/2023 1 ## ALEXANDER THOMAS & ZIYAD RAHMAN A.A, JJ. ================== WP(Crl) No.5/2023 ================== Dated this the 7[th] day of March, 2023 ## J U D G M E N T ## ALEXANDER THOMAS, J. The prayers in the instant WP(Crl) seeking for writs of Habeas Corpus and Certiorari are as follows: “(i) To issue a writ in the nature of Habeas Corpus or any other appropriate writ, order or direction compelling and commanding the respondents to produce the detenue before this Court and quash Ext.P1 detention order which was approved and confirmed, order confirming the detention order are liable to be quashed and to set the detenue at liberty. (ii) Petitioner also prays that this Court may be pleased to dispense with the translation of the documents produced in the vernacular language. (iii) To grant such other reliefs prayed for by the petitioner in the interest of justice.” 2. Heard Sri.C.Rajendran, learned counsel appearing for the petitioner and Sri.K.A.Anas, learned Prosecutor appearing for the respondents. 3. The petitioner herein is the mother of the detenu involved in this case. The petitioner is essentially aggrieved by the impugned Ext.P1 detention order dated 05.05.2022 issued by the 2[nd] respondent -District Collector, Kannur, whereby it has been ordered that in view WP(Crl) No.5/2023 - : 2 :- of the facts and circumstances stated in the said proceedings, it is highly necessary and imperative to issue an order under Section 3(1) of the Kerala Anti-Social Activities Prevention Act, 2007 in order to detain the petitioner so as to prevent him from committing further prejudicial anti-social activities. In the instant case, R3 District Police Chief as the sponsoring authority has given report on 20.04.2022, recommending to the 2[nd] respondent authorized detaining authority that in view of the facts and circumstances stated in the said report, it is a fit case to enable the 2[nd] respondent to pass an order of preventive detention against the detenu in order to restrain him from committing further prejudicial activities. The impugned Ext.P1 detention order has been issued by the 2[nd] respondent on 05.05.2022. Four cases have been proposed, out of which 3 cases have been reckoned for treating the detenu as a known rowdy as conceived in Section 2(p)(iii) read with Section 2(t) of the Act. In two out of the three cases, the final report by way of charge sheet has been filed on completion of the investigation. The last and the 3[rd] case was under investigation. The said last and the 3[rd] crime is crime No.73/2022 of Peringome Police Station, Kannur District which has been registered for offences punishable under Sec. 3 & 5 of the Explosives Act. The WP(Crl) No.5/2023 - : 3 :- crime is said to have been committed on 29.01.2022 and the same was registered on the same day. The detenu herein has been arrayed as the sole accused therein. The gist of the allegations therein is that the detenu is said to have made a country bomb in his house on 29.01.2022. The detenu as the accused in the 3[rd] and the last crime was arrested on 02.02.2022. Later the Session’s Court, Thalassery has granted him bail on 24.03.2022 and he was released on bail on 25.03.2022. It is thereafter that the 3[rd] respondent Sponsoring authority has given report on 20.04.2022 recommending preventive measures against the petitioner. It is the case of the respondents that as the detenu was then absconding, the 2[nd] respondent was not in a position to immediately secure execution of the impugned Ext.P1 detention order. Hence, they have to take appropriate measures to trace out the absconding detenu, by taking recourse to the powers under Sec. 6(1)(a) of the KAAPA. Necessary Gazette notification thereunder was also issued. It is thereafter that the detenu could be traced out. He was arrested on 22.08.2022 and thus, Ext.P1 detention order dated 05.05.2022 could be executed on 22.08.2022. 4. Thereafter, Ext.P1 detention order was approved by the State Government on 31.08.2022. Government has then placed the WP(Crl) No.5/2023 - : 4 :- matter before the Advisory Board for their opinion on 31.08.2022. The Advisory Board gave their report on 17.10.2022, recommending them that there is sufficient cause for the preventive detention of the detenu as per Ext.P1 detention order. Thereafter the Government has issued Ext.P13 GO(Rt) No.3175/2022/Home dated 14.11.2022, confirming Ext.P1 detention order dated 05.05.2022. 5. The details of the 3 crimes have been stated in the impugned Ext.P1 detention order as well as in paragraph no.6 on pages 5 to 7 of the counter affidavit dated 03.02.2023 filed by the 2[nd] respondent. There are no serious disputes that going by the nature of the said cases as well as the allegations in the said FIRs, the detenu would fulfill the definitional parameters of known rowdy as per Section 2(p)(iii) read with Section 2(t) of the Act. 6. Sri.C.Rajendran, learned Counsel appearing for the petitioner has urged various grounds including delay in the execution of the detention order as well as delay in the disposal of Ext.P12 representation dated 30.08.2022 and certain other grounds and contentions like non-supply of legible documents in relation to material and relevant proceedings in this case, non-application of mind etc. Counsel for the petitioner has given up on some of the pleas WP(Crl) No.5/2023 - : 5 :- and has confined his focus only on the last two contentions. Sri.K.A.Anas, learned Prosecutor has seriously opposed the abovesaid contentions of the petitioner. There is no necessity to reiterate the rival pleas, on the other hand, we would propose to straight away deal with the contentions of the petitioner and render our findings thereof. - Contention A: Non supply of legible copies of documents of material and relevant proceedings relied on by the detaining - authority as well as non application of mind in rejection of Ext.P12 representation. 7. These two contentions of the petitioner will be considered together. The petitioner has cogently and precisely pleaded both in the memorandum of Writ Petition Criminal as well as in Ext.P12 statutory representation dated 30.08.2022 that legible copies of the following relevant proceedings which can be relied on by the 2[nd] respondent have not been provided to him. The details of the same as given in paragraphs 4 to 6 of Ext.P12 representation are as follows: “4. The detaining authority has not provided readable and legible copy of the Memo of Evidence in Crime No.997/2016 of Peringome Police Station which is a subject matter for considering KAAPA. 5. The detention authority has not provided legible and readable copy of the Seizure mahazar, scene mahazar of Crime No.72/2022 of Peringom Police Station. 6. The detention authority has not provided legible and readable copy of the Final Report & FIS of WP(Crl) No.5/2023 - : 6 :- Crime No.1191/2016 of Payyannur Police Station.” 8. The said contentions have also been reiterated by the petitioner in the pleadings in this Writ Petition (Criminal). The abovesaid contentions of the petitioner has been opposed by the learned Prosecutor by contending that it is well established that the non-supply of legible copies of documents would vitiate the impugned decision making process only if those documents are highly pertinent and relevant and these documents have been relied on by the respondents and that copies of most of these documents are not legible and further that non-supply of those legible copies of such documents have materially prejudiced the detenue. The Prosecutor would urge that such a scenario has not arisen in this case. Sri.C.Rajendran, learned counsel for the petitioner would strongly controvert the abovesaid pleas of the learned Prosecutor. After hearing both sides we note that Ext.P4 is the true copy of the alleged non-legible copy of the relevant pages of crime No.997/2016 and the same are given in pages 41 and 42 of the paper book. From a reading of the case papers, it appears that Ext.P4 is not fully and properly legible. However, we note that the said document is only relating to the addresses of the accused persons in that crime and hence, we are of the view that the said document may not have materially and seriously prejudiced the detenu in submitting an effective WP(Crl) No.5/2023 - : 7 :- statutory representation as in Ext.P12. It has to be borne in mind that the non-supply of legible copies, can be a vitiating ground only if it pertains to a material and highly relevant proceedings which has been relied on by the respondents. The basis for this is that such non-supply of documents should prejudice the applicant in submitting an effective and proper statutory representation as conceived in Section 7(2) of the KAAP Act and which is also constitutionally embodied in Article 22 (5) of the Constitution of India. Further we note that Ext.P5 is the true copy of relevant pages of the final report of the ab0ve crime regarding the details of the accused and the same are given in pages 43 to 44 of the paper book. From a reading of Ext.P5 on pages 43 to 44, we note that the said papers are ordinarily legible and decipherable and it cannot be said that supply of such a document as in Ext.P5 has in any manner seriously prejudiced the case of the detenu. 9. Further we note Ext.P7 is a true copy of the alleged nonlegible copy of the order of the Sessions Court, Thalassery in Crl.MC No.457/2017 and the said papers are given in pages 51 to 52. A reading of Ext.P3 on pages 51 to 52 of the paper book of this WP(Crl) would indicate that the same is a bail order and can be deciphered and understood. Further, Ext.P8 is the alleged non-legible copy of FI WP(Crl) No.5/2023 - : 8 :- Statement in Crime No.119/2016 as given in pages 53 to 55 of the paper book. A reading of Ext.P8 would show that the said papers in pages 53 and 54 are broadly legible, whereas the last page thereof given on page 55 of the paper book is not very legible. Hence, we are of the veiw that supply of a document as in Ext.P8, cannot be said to be serious ground for vitiating the entire decision making process. Now, we come to the last part of the alleged non-legible copy said to have been given to the detenu and the same is in Ext.P10 which is given on pages 61 to 65 of the paper book. Ext.P10 is the alleged non-legible copy of the seizure mahazar and scene mahazar in the 3[rd] and the last crime, viz crime No.73/2022 of Peringome Police Station. A reading of Ext.P10 mahazar given on pages 61 to 65 would make it clear that the same is not legible and decipherable. Further, we note that Ext.P10 is highly vital and relevant document inasmuch as the same is the seizure mahazar as well as the scene mahazar in relation to the 3[rd] crime which is registered under the Explosives Act. Learned Prosecutor would submit that Ext.P10 as produced in the WP(Crl) may be the photocopy of the papers actually given to the detenu and would point out that the copy of Ext.P10 in the files of the respondents, cannot be said to be non-legible etc. After comparing the file papers, it is to be observed that what may WP(Crl) No.5/2023 - : 9 :- have been served to the detenu may be the photocopy of the papers now available with the official respondents and what has now been produced in Ext.P10 may be the photocopy of the document given to the detenu. Since, Ext.P10 is not very decipherable, we are inclined to agree with the submission of Sri.C.Rajendran, learned counsel appearing for the petitioner that the photocopy of Ext.P10 that was actually given to the detenu by the respondents may not have been legible and decipherable. Further, there cannot be any two opinions that Ext.P10 is a highly vital and relevant document. The said case was registered suo motu by the Police Authorities. The allegation is that the detenu has made a country bomb in his own residence. Therefore, in such a case registered under the Explosives Act, wherein the accused detenu has suffered injuries and going by the nature of the allegations, we are of the view that the seizure mahazar and scene mahazar are highly relevant and vital and there is no dispute that respondents have seriously relied on Ext.P10 document. The rationale for the judicial review court in insisting that legible copies of relevant documents should be given to the detenu is that if legible copies are not so given, it will hamper and rather obliterate the constitutional and statutory right of the detenu to make an effective and proper representation against the detention order before the competent WP(Crl) No.5/2023 **==> picture [32 x 8] intentionally omitted <==** authorities concerned as conceived in Section 7(2) of the KAAP Act and Article 22(5) of the constitution of India. Hence, we are of the view that non-supply of legible copies of Ext.P10 seizure mahazar and scene mahazar in the 3[rd] and the last crime has hampered the constitutional and statutory right of the detenu to file an effective and proper representation before the competent authorities as conceived in Section 7(2) of the KAAP Act and Article 22(5) of the Constitution of India. 10. The next plea of the petitioner is regarding non-application of mind in rejecting Ext.P12 representation. Learned Prosecutor would point out that Ext.P12 representation has been rejected by the competent authority of the State Government, after receipt of the recommendations of the Advisory board. The rejection order has been duly communicated to the petitioner as per proceedings dated 08.11.2022. A copy of the rejection order dated 08.11.2022 has also been made available to us for perusal. Sri.C.Rajendran, learned counsel appearing for the petitioner would point out that the detenu has urged highly vital and relevant contentions in Ext.P12 and the major contentions therein has not been even adverted to in the rejection order dated 08.11.2022. The said plea of the petitioner is strongly opposed by the learned Prosecutor. After hearing both sides, we are of the view that WP(Crl) No.5/2023 - : 11 :- the learned Prosecutor is right in contending by placing reliance on the dictum laid down by the constitution bench of the Apex Court in the cases as in Haradhan Saha & Another vs The State Of West Bengal & Ors, 1975 (3) SCC 198 paragraph no.26, that the rejection order need not be a speaking order and that there is no failure of justice by the rejection order in not being a speaking order. However, the constitutional Bench in the same paragraph, ie, paragraph 26 of Haradhan Saha & Another vs The State Of West Bengal & Ors. has also categorically held that it is necessary that there should be real and proper consideration by the Government and Advisory Board. Paragraph 26 of the Constitution Bench decision of the Apex Court in Haradhan Saha’s case supra 1975 (3) SCC 198, p.207 reads as follows: “The opinion of the Board as well as the order of the Government rejecting the representation of the detenu must be after proper consideration. There need not be a speaking order. There is also no failure of justice by the order not being a speaking order. All that is necessary is that there should be real and proper consideration by the Government and the Advisory Board.” 10. Both sides have made their respective factual submissions on the second plea. Since the petitioner has succeeded on his first plea supra, there is no necessity for us to render a final opinion on the rival contentions on the second plea. 11. So, the upshot of the above discussion is that petitioner is WP(Crl) No.5/2023 - : 12 :- has succeeded on the first plea and so it is ordered that the impugned decision making process which led to the impugned detention proceedings is liable for interdiction in judicial review proceedings. Accordingly, it is ordered that the impugned Ext.P1 detention order bearing No.DCKNR/4542/2022/SS1 dated 05.05.2022 issued by the 2[nd] respondent District Collector and District Magistrate, Kannur as confirmed by Ext.P13 GO(Rt) No.3175/2022/Home dated 14.11.2022, issued by the 1[st] respondent State Government in the Home Department will stand quashed and set aside. 12. We are told by both sides that Ext.P1 detention order dated 05.05.2022 was executed on 22.08.2022 and so the six months period therefrom is up to 21.02.2023. Learned Prosecutor has submitted that he is not wanted in any other case. It is also submitted that, in view of the expiry of the currency period of Ext.P1 order, the detenu has already been released from detention as he is not wanted in any other case. It is now well-settled that the currency period of the first detention order cannot exceed six months. So also, if the first detention order is valid, the 2[nd] detention order issued under the above Act could extend up to a period of one year. Whereas, if the first detention order is quashed by this Court, then the same will have to be treated as a legally invalid WP(Crl) No.5/2023 **==> picture [32 x 8] intentionally omitted <==** order and therefore, the same cannot be treated as the first detention order which is valid and therefore the 2[nd] detention order will have to be treated as a fresh order and the currency period of which cannot exceed six months. (See Vishnuja vs. State of Kerala, (2018 (1) KLT 978) paragraph 24). The legal position on the above aspects are also hereby clarified. No other orders or directions are called for. With these observations and directions, the above WP(Crl) will stand finally disposed of. sd/ALEXANDER THOMAS, JUDGE sd/ZIYAD RAHMAN A.A, JUDGE Nsd ## **`APPENDIX OF WP(CRL.) 5/2023`** |`PETITIONER EXHIBITS`|| |---|---| |`Exhibit P1`|`A TRUE PHOTOCOPY OF THE DETENTION ORDER NO.`| ||`DCKNR/4542/2022 SSI DATED 05/05/2022`| |`Exhibit P2`|`A TRUE PHOTOCOPY OF THE REPORT OF THE 3RD`| ||`RESPONDENT DATED 20/04/2022`| |`Exhibit P3`|`A TRUE PHOTOCOPY OF THE FIR & FIS IN CRIME`| ||`NO. 997/2016 OF THE PERINGOME POLICE STATION`| ||`KANNUR`| |`Exhibit P4`|`A TRUE PHOTOCOPY OF THE NON-LEGIBLE COPY OF`| ||`RELEVANT PAGES SHOWING NAME OF ADDRESS OF THE`| ||`ACCUSED IN CRIME NO 997/2016 OF PERINGOME PS`| ||`SERVED ON THE DETENUE`| |`Exhibit P5`|`TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE`| ||`FINAL REPORT, I.E. THE COLUMN 9 OF THE`| ||`"DETAILS OF THE ACCUSED"`| |`Exhibit P6`|`A TRUE PHOTOCOPY OF THE FIR IN CRIME NO.`| ||`1191/2016 OF THE PAYANNUR POLICE STATION`| ||`KANNUR`| |`Exhibit P7`|`A TRUE PHOTOCOPY OF THE NON-LEGIBLE COPY OF`| ||`THE ORDER BY HON'BLE SESSIONS COURT`| ||`THALASSERY SERVED TO THE DETENUE DATED`| ||`10/4/2017 IN CRL MC NO. 457/2017`| |`Exhibit8 P8`|`A TRUE PHOTOCOPY OF THE NON LEGIBLE COPY OF`| ||`FI STATEMENT IN CRIME NO 1191/2016 OF`| ||`PAYANNUR POLICE STATION`| |`Exhibit P9`|`A TRUE PHOTOCOPY OF THE FIR IN CRIME NO.`| ||`73/2022 OF PERINGOME POLICE STATION KANNUR`| |`Exhibit P10`|`A TRUE PHOTOCOPY OF NON -LEGIBLE COPY OF THE`| ||`SEIZURE MAHAZER AND SCENE MAHAZER IN CRIME`| ||`NO. 73/2022 OF PERINGOME POLICE STATION GIVEN`| ||`TO THE DETENUE`| |`Exhibit1 P11`|`A TRUE PHOTOCOPY OF THE ORDER IN CRL MC NO.`| ||`360/2022 DATED 24/03/2022 BY THE SESSIONS`| ||`COURT THALASSERY`| |`Exhibit1 P12`|`A TRUE PHOTOCOPY OF THE REPRESENTATION`| ||`SUBMITTED BY THE DETENUE ON 30/08/2022 BEFORE`| ||`THE KAAPA BOARD`| |`Exhibit P13`|`A TRUE PHOTOCOPY OF THE ORDER OF THE 1ST`| ||`RESPONDENT CONFIRMING THE DETENTION DATED`| ||`14/11/2022`|