Mohammed Ajmal v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V`** ``` & THEHONOURABLEMR.JUSTICEG.GIRISH FRIDAY,THE26[TH]DAYOFJULY2024/4THSRAVANA,1946 ``` ``` WP(CRL.)NO.622OF2024 ``` ``` PETITIONER ``` ``` MOHAMMEDAJMAL AGED24YEARS S/OSULAIMAN,ULLATTILHOUSE,THRIPPANGODE,KOLUPALAM, TIRUR,MALAPPURAMDISTRICT,(UNDERPREVENTIVE DETENTIONINHIGHSECURITYPRISON,VIYYUR,THRISSUR, PIN-676108 ``` ``` BYADVS. P.SAMSUDIN LIRAA.B. NASRINWAHAB DEVIKAE.D. ``` ``` RESPONDENTS: ``` - **`1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM., PIN - 695001`** - **`2 THE DISTRICT MAGISTRATE MALAPPURAM CIVIL STATION, UP-HILL, MALAPPURAM, MALAPPURAM DISTRICT., PIN - 676505`** - **`3 THE DISTRICT POLICE CHIEF MALAPPURAM POLICE QUARTERS, UP-HILL, MALAPPURAM, MALAPPURAM DISTRICT., PIN - 676505`** - **`4 THE STATION HOUSE OFFICER, PERINTHALMANNA PERINTHALMANNA POLICE STATION, PERINTHALMANNA P.O., MALAPPURAM DISTRICT, PIN - 679322`** 2 WP(Crl) No.622 of 2024 ``` BYADVS. ADVOCATEGENERALOFFICEKERALA ADDL.DIRECTORGENERALOFPROSECUTION(AG-11) ``` ## **`SRI K A ANAZ, PUBLIC PROSECUTOR`** ``` THISWRITPETITION(CRIMINAL)HAVINGCOMEUPFOR ADMISSIONON26.07.2024,THECOURTONTHESAMEDAY DELIVEREDTHEFOLLOWING: ``` 3 WP(Crl) No.622 of 2024 ## **JUDGMENT** ## **Raja Vijayaraghavan, J.** The challenge in this petition filed under Article 226 of the Constitution of India is directed against Ext.P1 order dated 3.3.2024 issued by the 2nd respondent under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (‘KAAPA’ for brevity). The petitioner has also challenged Ext.P2 order issued by the 1st respondent by which the Government pursuant to the order passed by the Advisory Board has confirmed the order of detention. ## 2. **Short facts:** It appears that the petitioner herein was earlier classified as a ‘known goonda’ and an order of preventive detention was passed against him for a period of six months. The said detention period expired on 15.09.2023. Immediately thereafter, within one month after the release of the petitioner herein, he got involved in a crime as Crime No.1352/2023 registered under Section 22(b) and Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The allegation was that on 12.10.2023 at about 2.30 a.m., he along with the other accused were found in possession of 5.20 g of MDMA. He was arrested in the aforesaid Crime and was released on 11.01.2024. While so, a report was submitted by the 4 WP(Crl) No.622 of 2024 Superintendent of Police on 12.02.2024 seeking initiation of proceedings against the petitioner under KAAPA. Pursuant to the same, Ext.P1 detention order was passed on 3.3.2024. The same was executed on 7.3.2024 and the same was confirmed by the Government on 21.03.2024. It appears that the matter was forwarded to the Advisory Board, which passed orders on 22.04.2024 and based on the same, confirmation was passed by the Government on 30.04.2024. The cases in which the petitioner is involved are as follows: |**Sl.**<br>**No.**|**Crime No. and Police**<br>**Station**|**Offence punishable**<br>**under Sections**|**Date of**<br>**Crime**| |---|---|---|---| |1|Crime No.533/2018 of the<br>Kalpakanchery Police<br>Station|380 IPC|29.07.2018| |2|Crime No.110/2018 of the<br>Tirur Police Station|20(b)ii(B) of the NDPS<br>Act.|7.02.2018| |3|Crime No.210/2019 of the<br>Tirur Police Station|341,323,325 IPC|10.03.2019| |4|Crime No.758/2019 of the<br>Tirur Police Station|341, 323, 307 r/w<br>Section 34 IPC|23.09.2019| |5|Crime No.81 of 2020 of<br>the Tirur Police Station|341, 323, 324, 308, 201<br>r/w Section 34 IPC|15.01.2020| |6|Crime No.1085/2021 of<br>the Tirur Police Station|452, 427, 506(ii) r/w<br>Section 34 IPC|01.09.2021| |7|Crime No.1086/2021 of<br>Tirur Police Station|452, 427, 506(ii), 201<br>r/w Section 34 IPC|29.08.2021| |8|Crime No.1163/2021 of<br>Tirur Police Station|341, 324, 308 r/w<br>Section 34 IPC|26.09.2021| |9|Crime No.923/2022 of<br>Tirur Police Station|20(b) of NDPS Act|18.09.2022| |10|Crime No.1352/2023 of<br>Tirur Police Station|22(b) and 29 of the<br>NDPS Act|12.10.2023| 5 WP(Crl) No.622 of 2024 ## 3. **The contention of the petitioner:** Sri.Samsudin Panolan, the learned counsel appearing for the petitioner submitted that while issuing the order of detention there is total non-application of mind by the detaining authority. The learned counsel submitted that a Division Bench of this Court in **Rema Vijayalal v. State of Kerala[1]** had occasion to hold after referring to Section 10(4) and Section 12 that while fixing the period of detention, the Government was bound to take into consideration as to whether the maximum period of one year is to be imposed. In the case on hand, a reading of the order would not disclose that the Government had applied its mind before imposing the maximum period of detention. According to the learned counsel, in view of the law laid down in **Rema Vijayalal** (supra) **,** the order is liable to be set aside on the sole ground of non-application of mind by the Government as well as the detaining authority. ## 4. **Response of the State:** In response, Sri. K A Anaz, the learned Public Prosecutor submitted that the issue raised by the petitioner has already been decided against them by this Court in W.P. (Crl) No. 711 of 2024. > 1 [2024(2) KHC 118] 6 WP(Crl) No.622 of 2024 ## **-** 5. **Whether there is non application of mind in ordering the maximum period of detention?** - a) The contention of the petitioner is that while issuing the subsequent detention order, the detaining authority ought to have applied its mind and considered whether the maximum period of detention ought to have been imposed. Much reliance is placed on the observations made by this Court in **Rema Vijayalal v. State of Kerala[2]** to substantiate his contention. - b) In **Dattatraya Moreshwar Pangarkar v. State of Bombay[3]** , the Apex Court has held that the duration for which a detenu is to be kept in detention is for the detaining authority to decide and not the Advisory Board. The said opinion finds approval in the decision of the Constitution Bench of the Apex Court in **A.K. Roy v. Union of India[4]** . The period of detention and the terminal point has, therefore, to be decided by the Government. - c) Section 12 of the KAAPA deals with the maximum period of detention. The said provision reads as under: “In pursuance of the first detention order made against any person under this Act and confirmed under Section 10, he may be detained for a period which may extend up to six months from the date of the detention and in pursuance of > 2 [2024 (2) KHC 118] > 3 [(1952) 1 SCC 372] > 4 [(1982) 1 SCC 271] 7 WP(Crl) No.622 of 2024 such subsequent detention order made against such person, he may be detained for a period which may extend up to a maximum of one year.” d) Section 10 of the Conservation of Foreign and Prevention of Smuggling Activities Act, 1974 has identical provisions, which read as under: “Section 10: Maximum period of detention.—The maximum period for which any person may be detained in pursuance of any detention order to which the provisions of Section 9 do not apply and which has been confirmed under clause (f) of Section 8 shall be a period of one year from the date of detention or the specified period, whichever period expires later and the maximum period for which any person may be detained in pursuance of any detention order to which the provisions of Section 9 apply and which has been confirmed under clause (f) of Section 8 read with sub-section (2) of Section 9 shall be a period of two years from the date of detention or the specified period, whichever period expires later: Provided that nothing contained in this section shall affect the power of the appropriate Government in either case to revoke or modify the detention order at any earlier time.” e) In **Vijayakumar v. Union of India[5]** , a contention was taken before the Supreme Court that while passing an order of detention, the Government had not applied its mind, while confirming the detention of the detenu for the maximum period of one year from the date of > 5 [(1988 KHC 924)] 8 WP(Crl) No.622 of 2024 detention, as prescribed in Section 10 of the Act. It was also contended that some reason ought to have been given, as to why the maximum period of detention is imposed. While repelling the said contention, the Apex Court in Paragraph 29 of the judgment had observed as under: “29. The last point that has been urged on behalf of the appellant is that the Government has not applied its mind while confirming the detention of the appellant for the maximum period of one year from the date of detention as prescribed in Section 10 of the Act. It is submitted that some reason should have been given why the maximum period of detention is imposed on the appellant. This contention, in our opinion, is devoid of any merit. Section 10 of the Act provides, inter alia, that the maximum period for which any person may be detained in pursuance of any detention order shall be a period of one year from the date of detention or the specified period. Section 10 does not provide that in imposing the maximum period of detention, any reason has to be given. In confirming the order of detention, it may be reasonably presumed that the government has applied its mind to all the relevant facts and, thereafter, if it imposes the maximum period of detention, it cannot be said that the Government has not applied its mind as to the period of detention. In any event, under Section 11 of the Act, a detention order may, at any time, be revoked or modified by the Government. In the circumstances, we do not think that the detenu was in the least prejudiced or that there has been non-application of mind by the Government to the question of period of detention of the detenu. This contention of the appellant also fails. No other point has been urged in this 9 WP(Crl) No.622 of 2024 ## appeal.” In the concurring opinion, it was observed in paragraph no.38 as under: “38. If the Advisory Board reports that there is in its opinion sufficient cause for the detention of the person, the concerned authority may confirm and continue the detention of the person for such period as it thinks fit. The expression “as it thinks fit” in Section 8(f) of the Act indicates that the concerned authority after considering the report of the Advisory Board may fix any period for detention. The authority is not required to give any special reason either for fixing a shorter period or for fixing the maximum period prescribed under Section 10. The opinion of the Advisory Board and the grounds of detention are the only basis for confirming and continuing the detention, for any period, even up to the maximum period prescribed. Section 11 provides for revocation of detention order. The detention order may at any time be revoked or modified. When the power to revoke the order of detention could be exercised at any time, it is not necessary for the authority to articulate special reasons for continuing the detention for any period much less for the maximum period prescribed under the Act.” It was held that the authority is not required to give any special reason either for fixing a shorter period or for fixing the maximum period prescribed under the statute. The opinion of the Advisory Board and the grounds of detention are the only basis for confirming and continuing the detention, for any period, even up to the maximum period prescribed. The Act also provides for revocation of 10 WP(Crl) No.622 of 2024 the detention order and says that the detention order may at any time be revoked or modified. When the power to revoke the order of detention could be exercised at any time, it is not necessary for the authority to articulate special reasons for continuing the detention for any period much less for the maximum period prescribed under the Act. f) Recently, in **Ameena Begam v. State of Telangana and Ors.[6]** , the Apex Court after referring to the law laid down in **Vijayakumar** (supra), held that the objective sought to be fulfilled in each case, whether sub-served by continuing detention for the maximum period, ought to bear some reflection in the order of detention. However, the Apex Court refrained from pronouncing that an order of detention, otherwise held legal and valid, could be invalidated only on the ground of absence of any indication therein as to why the detention has been continued for a maximum period. It was observed in paragraph 79 of the judgment as under: “79. Viewed reasonably, the period of detention ought to necessarily vary depending upon the facts and circumstances of each case and cannot be uniform in all cases. The objective sought to be fulfilled in each case, whether is subserved by continuing detention for the maximum period, ought to bear some reflection in the order of detention; or else, the Government could be accused of unreasonableness and unfairness. Detention being a restriction on the > 6 [(2023) 9 SCC 587] 11 WP(Crl) No.622 of 2024 invaluable right to personal liberty of an individual and if the same were to be continued for the maximum period, it would be eminently just and desirable that such restriction on personal liberty, in the least, reflects an approach that meets the test of Article 14. We, however, refrain from pronouncing here that an order of detention, otherwise held legal and valid, could be invalidated only on the ground of absence of any indication therein as to why the detention has been continued for the maximum period. That situation does not arise here and is left for a decision in an appropriate case.” - g) In **Ameena Begum** (supra), though **Vijay Kumar** (supra) was noticed, the question of whether in the absence of any indication therein as to why the detention has been continued for the maximum period of 12 months was not decided. While rendering **Rema Vijayalal** (supra), **Vijay Kumar** (supra) was not brought to the notice of their Lordships. We are bound by the observations of the Apex Court in **Vijay Kumar** (supra). - h) It is well settled that subjective satisfaction entertained by the detaining authority is not justiciable. This Court does not sit in appeal in proceedings under Article 226 of the Constitution of India over the decisions taken by the detaining authority on the basis of the materials placed before the detaining authority as to whether preventive detention is necessary or warranted. The short area of jurisdiction is to ascertain whether subjective satisfaction is entertained properly on the basis of materials placed before the 12 WP(Crl) No.622 of 2024 detaining authority. If the entertainment of the latter subjective satisfaction is vitiated by mala fides or by total absence of materials or by reference to and reliance on materials which cannot legally be taken note of, certainly the powers of judicial review vested in this Court can be invoked and the order of detention on the basis of such alleged subjective satisfaction can be set aside. But, certainly, if there are materials, it is not open to this Court to sit in appeal over the subjective satisfaction entertained by the detaining authority. (See: **Ibrahim Bachu Bafan and Another v. State of Gujarat and Another[7]** ). Having considered the entire facts, we are of the view that the detenu has not made out any case for interference. This writ petition is dismissed. Sd/- ## **RAJA VIJAYARAGHAVAN V JUDGE** Sd/- **G. GIRISH JUDGE** IAP > 7 [1985 (2) SCC 24)] 13 WP(Crl) No.622 of 2024 ## **`APPENDIX OF WP(CRL.) 622/2024`** |**`PETITIONER’S `**|**`EXHIBITS:`**|||||| |---|---|---|---|---|---|---| |**`Exhibit P1`**|**`TRUE`**<br>**`COPY`**|**`OF`**|**`THE`**|**`ORDER`**||**`NO.`**| ||**`DCMPM/15134/2022-S1`**||**`ISSUED`**|**`BY`**|**`THE`**|**`2ND`**| ||**`RESPONDENT DATED `**|**`03-03-2024`**||||| |**`Exhibit P2`**|**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`THE`**||**`ORDER`**|**`NO.G.O.(RT)`**||**`NO.`**| ||**`1248/2024/HOME`**|**`ISSUED`**<br>**`BY`**||**`1ST`**|**`RESPONDENT`**|| ||**`DATED 30-04-2024`**||||||