Molly v State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **THURSDAY, THE 22[ND] DAY OF JULY 2021 / 31ST ASHADHA, 1943 - WP(CRL.) NO.133 OF 2021 S** ## **PETITIONER/S:** **MOLLY, AGED 50 YEARS, W/O. CHARLY, THENGINGAL HOUSE, KACHERY DESOM, NADATHARA, THRISSUR, PIN - 680005.** **BY ADV M.H.HANIS** ## **RESPONDENT/S:** - **1 STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME AND VIGILANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001.** - **2 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE, CIVIL STATION, AYYANTHOLE, THRISSUR, PIN - 680003,** - **3 THE DISTRICT POLICE CHIEF, THRISSUR CITY, PIN - 680003.** - **4 THE CHAIRMAN, ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD, VIVEKANANDA NAGAR, ELAMAKKARA, PIN - 682026.** - **5 THE SUPERINTENDENT OF JAIL, CENTRAL JAIL, KANNUR, PIN – 670004. BY ADVS. ADDITIONAL DGP SRI.GRASHIOUS KURIAKOSE, ASSISTED BY GP SRI.K.A.ANAS** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 22.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **- 2 -** **W.P(Crl).133 of 2021** **K. Vinod Chandran & Ziyad Rahman A.A., JJ. ------------------------------------------W.P(Crl.)No.133 of 2021-S ------------------------------------------Dated, this the 22[nd] day of July, 2021** ## **JUDGMENT** **Vinod Chandran, J.** **The writ petition is filed by the mother of the detenu. The detenu is serving the fourth term of preventive detention; earlier six months each in 2012 and 2014 and one year in 2015. The instant detention order was passed on 20.10.2020. The detenu was arrested on 21.12.2020, from the judicial custody he was in; from 31.05.2020. The order of approval by the Government was dated 6.11.2020. Even before that on 28.10.2020 the brother of the detenu made a representation, Ext.P10, to the Advisory Board and Ext.P11 is the postal receipt, which was rejected by Ext.P9 on 04.11.2020. Ext.P4 is the representation made to the Government by the brother, again of the same date. The reference was made to the Advisory Board by the Government on 10.11.2020. The approval by the Board was on 21.12.2020. The Government affirmed the order of detention on 05.01.2020 specifying the period of detention to be one year. Ext.P4 representation to the Government received on** **- 3 -** **W.P(Crl).133 of 2021** **03.11.2020 was also forwarded to the Advisory Board. The Government after the order was affirmed by the Advisory Board rejected the representation by order dated 10.11.2020.** **2. Sri.M.H.Hanis, learned Counsel appearing for the petitioner would contend that after detention the Government was not immediately informed of the same. Section 3(3) hence is not complied with. The representation to the Advisory Board was rejected by Ext.P9 on the ground that only the detenu has the right to represent. Often it would be difficult for the detenu to get legal assistance and the relatives or the next friend could always make a representation on behalf of the detenu who has been detained on the subjective satisfaction of the District Magistrate. Ext.P4 representation by the brother to the Government too was not considered in time. The detenu was already in judicial custody from 31.05.2020 and there was no reason why he should have been detained as a preventive measure after five months; when there was again no chance for him to be released on bail. The learned Counsel read through the order to show that the bail granted to the detenu in one case was cancelled and in others, the applications filed for cancellation of bail were** **- 4 -** **W.P(Crl).133 of 2021** **pending. The last prejudicial act was on 30.05.2020 about four months back. There was no imminent danger posed by the detenu. It is also argued that the larger period of one year was prescribed by an amendment brought in by Act 41 of 2014 dated 31.12.2014. The earlier detention orders cannot be reckoned for the purpose of the subsequent detention after the amendment.** **3.** _**Pradeep Nilkanth Paturkar v. S.Ramamurthi and others [AIR 1994 SC 656]**_ **&** _**Lekha Nandakumar v. Government of India [2004(2) KLT 1094]**_ **were relied on to urge the argument of delay occasioned in passing the order.** _**Lekha Nandakumar**_ **also required that the result of the representation should be communicated to the detenu.** _**Hemlata Kantilal Shah v. State of Maharashtra and another [1981(4) SCC 647], Abdul Rahman v.State of Kerala [1989 (4) SCC 741], Rajammal v. State of Tamil Nadu [1999(1) SCC 417],**_ **&** _**Venugopal v. State of Kerala and others [2015(4) KLT 1]**_ **were placed before us to canvass the contention regarding the delay in consideration of representation. A representation can be made by any person who is authorized to do so by the detenu as held in** _**Vilasini Manikandan v. State of Kerala and others [2009(3) KLT 205].**_ **In considering the representation if there is a factual inaccuracy in the** **- 5 -** **W.P(Crl).133 of 2021** **detention order pointed out, it should be specifically dealt with and otherwise, it will be a non-speaking order:** _**Shruthi P v. State of Kerala and others [2009 (4) KLT 893].**_ **Verbatim reproduction of the report of the sponsoring authority leads to an inference that there was clear non-application of mind:** _**Tunnu v. Superintendent District Jail, Ballia 2000 KHC 2581.**_ **To press the contention that there was no material available with the Detaining Authority to assume that the detenu would be released from custody reliance was placed on** _**Rekha v. State of Tamil Nadu Tr. Sec. to Government [2011(5) SCC 244]**_ **.** **4. Sri.K.A.Anas, learned Government Pleader on the other hand seeks to sustain the order of detention. It is pointed out that the detenu is a habitual offender and a history-sheeter. Despite preventive detention of the detenu on three earlier instances, he continued with his illegal activities spreading fear and terror in the society. The detenu was also convicted for an offence in the year 2016. The sentence awarded was three years imprisonment and after his release in 2019 he again resumed his criminal activities and there are about five cases registered after his release. Out of the 8 cases falling in the prior seven years, only seven were** **- 6 -** **W.P(Crl).133 of 2021** **considered. When there is an earlier detention the requirement is only of one subsequent case charged against that person. It is also pointed out that additionally, he has suffered a conviction in the past seven years and that alone is sufficient under S.2(p)(i) of the Kerala Anti Social Activities (Prevention) Act, 2007 (for short KAA(P)A).** **5.** _**Haradhan Shah v. State of W.B. AIR 1974 SC**_ _**2154**_ **was placed before us to contend that a constitution Bench of the Hon'ble Supreme Court held that the consideration of a representation need not be a speaking one.** _**Union of India vs. Saleena (2016) 3 SCC 437**_ **found that non-communication of the order rejecting representation cannot vitiate the detention and the Court's duty is only to ensure that the rejection is not in a mechanical manner.** _**Rafiya V State of Kerala 2019 (1) KHC 63**_ **emphasized the need to communicate the detention order forthwith but the same rigour is not available in communicating the factum of detention, since the approval of the Government is to be obtained only within 12 days of detention. Reference to previous antecedents of the detenu will not vitiate the order so long as the requirement under Sections 2(o) and 2(p) are satisfied.** **- 7 -** **W.P(Crl).133 of 2021** **6. Admittedly the detenu was earlier detained thrice in the year 2012 and 2014 for six months each and in the year 2015 for a period of one year. Obviously, the detention for a period of one year in 2015 was made under the amended S.12 since earlier the maximum period of detention under the Act could not have exceeded six months from the date of detention. The earlier detention now reckoned to again order preventive detention for one year is because of continued indulgence in criminal activities after the release from preventive detention. We do not find any reason to consider the ground raised by the petitioner concerning the effect of the amendment. The contention of the petitioner that the present detention made for one year under the amendment of 2014 cannot be sustained is fallacious at least in this instance since the earlier detention of one year was also after the amendment of 2014.** ## **7. The earlier detention for one year was** **between 10.04.2015 to 09.04.2016. After release the detenu was involved in the following crimes: Ollur Police Station Crime No.2169/2016 (Date of occurrence:13.08.2016), Thrissur West Police Station Crime No.1969/16 (D/O:12.08.2016), Thrissur East Police Station Crime No.2849/16 (D/O:11.08.2016), Ollur Police** **- 8 -** **W.P(Crl).133 of 2021** **Station Crimes: 1435/19 (D/O:20.12.2019), 35/2020(D/O: 18.10.2019), 1141/2020 (D/O:29.05.2020), 1153/2020 (D/O:30.05.2020) and Medical College Police Station Crime: 1614/2016 (D/O: 11.08.2016). Of these eight cases the last, which was first in point of time was lodged on the complaint of a Police Officer. There is no prohibition in reckoning such crimes as has already been held in** _**Beji vs. State of Kerala 2012 (3) KHC 363**_ **that the expression 'complaint' appearing in S.2(p)(iii) is used in ordinary parlance and the exclusion from consideration for detention under KAA(P)A is only those cases registered by the Police suo motu. Here the case though registered by a Police Officer was against the threats levelled against him. It also has to be observed that because the instant detention follows an earlier one what is required is only one such offence registered.** **8. We have gone through the files produced by the State before us and we notice the detention order and the connected records having been communicated to the Government by e-mail and hard copy on 20.10.2020 itself, ie: the date of the order. The requirement for 'forthwith' transmission is of the detention order and the further requirement in S.7(3) is approval by the** **- 9 -** **W.P(Crl).133 of 2021** **Government within 12 days of execution. The information of the arrest is for approval and any delay would only put to peril the very detention carried out. The learned Counsel would argue that here; after execution of the order on 21.10.2020, the information was conveyed only on 27.10.2020 thus providing only four days for consideration of approval; resulting in a reasonable inference that the approval was hurriedly made mechanically. We are unable to accept this contention since the information of execution of the order is only to alert the Government so that the order of approval or otherwise can be issued within the stipulated time. S.13 of the KAA(P)A comes into play, the minute the order is issued and communicated forthwith to the Government. The scheme envisages the Government being clothed with the power to revoke detention from the moment it is issued and hence no time is specified for intimation of the execution; the mandate being the issuance of approval within 12 days of execution. We do not think the delay; of six days with an intervening weekend and the next Monday being a public holiday, can be termed unreasonable or is in any manner fatal to the detention. The approval was issued within time; within 10 days excluding the intervening public holidays.** **- 10 -** **W.P(Crl).133 of 2021** **9. The accused in the interregnum was convicted in SC.No.936/2016 arising from Crime No.2169/2016 under various provisions of the IPC. He was convicted and sentenced to imprisonment for different terms the maximum of which was for three years; which offence was one under S.308 IPC. The trial was conducted when he was on remand from 13.08.2016 onwards and the judgment was delivered on 20.08.2019. The judgment specifically directed that the sentences of imprisonment shall run concurrently and the period spend in judicial remand, be granted set off. The detenu was released from prison on 03.09.2019 and after his release, he again committed the four crimes referred to above.** **10. S.2(p) as pointed out by the learned Government Pleader deems a person to be a known rowdy if he is found guilty at least once for an offence of the nature detailed under clause (i) of Clause (t) of S.2 or any offence notified as such under the said clause. S.2(t)(i) speaks of offences punishable with five or more years of imprisonment of any type. Crime No.2169/2016 from which arose SC.No.936/2016 charged the detenu with an offence** _**inter alia**_ **under S.307 along with various other offences under IPC and the Arms Act. S.307 was held to be not proved but from the evidence, the** **- 11 -** **W.P(Crl).133 of 2021** **trial Court found an intention to commit culpable homicide under S.308 IPC. The punishment in the event of hurt caused, under S.308 is imprisonment for a term that may extend to seven years. Though the detenu was sentenced only for three years, we see from the Judgment in SC.No.936/2016 that there was hurt caused and only since it was not of a high degree that the conviction was made under S.308 and not under S.307. Though the sentence handed down was of three years, the requirement under S.2(p) and (t) is a conviction for an offence punishable with 5 or more years of imprisonment; without reckoning the actual sentence handed down. The above conviction and sentence have been imposed on the detenu for an offence that was committed after the release from the earlier detention of one year. Similarly, the last prejudicial act is the offence committed on 30.05.2020 in Crime No.1153/2020 for which arrest was made on 31.05.2020 and the detenu remanded to judicial custody; from which custody he was arrested in execution of the order of preventive detention.** **11. The learned Counsel for the petitioner raised a contention that certain documents served on the detenu were illegible copies and the specific pages were referred to. The reference made is concerning Crime** **- 12 -** **W.P(Crl).133 of 2021** **Nos.2849/2016 and 1435/2019. In this context we are of the opinion none of these be reckoned, since for preventive detention of one year following earlier detention under KAA(P)A; there need be only one crime registered as is required under S.13(2). After revocation or expiry of a detention order if the detenu continues to be a 'known goonda' or 'known rowdy' under S.2(o) or S.2(p), then under S.13(2) and if he is involved in one single offence of the nature described in S.2(o) or (p), under Section 13(2)(i); there can be a subsequent detention order. In the circumstance under S.13(2)(i), the period can also extend upto one year as per S.12. In the present case, there is also a conviction entered for the offence committed after the earlier detention and there are numerous crimes committed by the detenu. S.7(4) provides that the order of detention shall not be deemed to be invalid because one or more of the facts or circumstances cited among the grounds are vague, non-existent, irrelevant or invalid for any reason whatsoever. The illegible copies if rendering invalid for consideration the two crimes referred; even then the remaining facts legitimize the detention. We reiterate that there is only need for one such offence after the earlier detention and in the** **- 13 -** **W.P(Crl).133 of 2021** **present case there are six other cases registered. Even if the two crimes above referred are eschewed, there are six other crimes registered and also one conviction in one of such crimes registered, subsequent to the earlier detention.** **12. The Detaining Officer in Ext.P1 has considered the issue in detail. After his release from preventive detention on 09.04.2016, the detenu was involved in four crimes two on 11.08.2016, then on 12.08.2016 and 13.08.2016. He was arrested on 13.08.2016 under the last of such crimes. While continuing on remand the said offence was charged and tried in which he was convicted and sentenced to three years. He was released on 03.09.2016 after serving the sentence and thereafter he resumed his criminal activities and four crimes were charged respectively on 18.10.2019, 20.12.2019, 29.05.2020 and 30.05.2020. The seven crimes which were registered in the various police stations were reckoned, to deem the detenu to be a 'known rowdy' under the KAA(P)A. The Detaining Authority also noticed the conviction in one of the crimes registered within the seven years. The earlier crimes, which indicate the antecedents of the detenu, though noticed was specifically stated as not having been** **- 14 -** **W.P(Crl).133 of 2021** **reckoned for the instant order, for the reason of those crimes having been committed before seven years.** **13. The crimes reckoned for detention were stated to have been committed while the detenu was under observation; his name having figured in the 'Rowdy History Sheet' of Ollur Police Station. It was also noticed that the bail granted in Crime No.1969 of 2016 was cancelled for the reason of commission of other crimes, but later he was released due to the pandemic situation on 30.03.2020. It was after this that he was involved in two crimes respectively on the 29[th] and 30[th] of May 2020. The detenu was arrested again on 31.05.2020 and was remanded. An application filed for cancellation of bail in Crime No.1969 of 2016 was referred to and the cancellation effected of the bail granted in Crime No.2849/2016 and Crime No.35/2020 were also referred. As far as Crime No.1153 of 2020, the final report allege bailable offences and in Crime No.1141 of 2020 the police were unable to file the final report in the said case, even after 90 days. It was also observed that there were chances of the detenu approaching the higher courts against the cancellation of bail effected in three cases. All these factors were considered to find that there is a necessity to issue the order of** **- 15 -** **W.P(Crl).133 of 2021** **preventive detention and the delay caused was specifically explained as due to the pandemic situation. There was also said to be a delay in collecting the details of the various crimes registered in the different police stations. We cannot but observe in this context, that, the Police were front line warriors in the fight against Covid-19 and they were overburdened with work related to overseeing quarantine, enforcing regulations of lockdown and so forth.** **14. The Detaining Authority specifically spoke of the detenu providing leadership to a goonda gang who were unleashing violence in the locality causing disturbance of the peace and tranquility and interfering with the peaceful lives of the society in general. The detenu was also involved in crimes against the police and resisted arrest using force and violence with the help of lethal weapons demonstrating defiance against law and law enforcing agencies. His detentions as a preventive measure and then on remand and under conviction for long periods has not evoked any remorse and he was continuing with the criminal activities unabated which required his detention under the KAA(P)A. We find the satisfaction arrived at by the Detaining Authority on the recommendation of the Sponsoring** **- 16 -** **W.P(Crl).133 of 2021** **Authority to be perfectly valid and not liable to be interfered with.** **15. The formalities under the KAA(P)A have been complied with by the Authorities to the letter. It is argued that the Advisory Board ought not to have rejected the representation of the brother of the detenu by Ext.P9 on the ground that the right to make a representation is reserved solely to the detenu. This Court in** _**Vilasini Manikandan**_ **held that the right to representation under Art.22(5) of the Constitution and S.7 of the KAA(P)A is conferred only on the detenu, but it could be by an authorized person who submits it on behalf of the detenu. A reading of Ext.P10 representation does not show the relationship of the person with the detenu nor is it stated therein that the same is filed on behalf of the detenu; as authorized by him. In any event Ext.P9 is dated 04.11.2020, even before the reference was received by the Advisory Board. Though the Government has the power to revoke the detention order at any time after it is issued, without even reference to the Advisory Board; The Board can act only after the matter is referred to it and the Board is seized of the issue of detention. We also notice from the order of the Advisory Board that both the** **- 17 -** **W.P(Crl).133 of 2021** **representations, Ext.P4 by the brother to the Government; which is a verbatim replica of Ext.P9 and another representation by the detenu itself dated 27.10.2020 were placed before the Advisory Board, which also considered the same before affirming the order of detention.** **16. In** _**Haradhan Shah**_ **a Constitution Bench of the Hon'ble Supreme Court held so:** **“26. 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 a real and proper consideration by the Government and the Advisory Board”.** **In the present case there is no factual inaccuracy pointed out from the detention order nor is there an issue of the essential ingredients being not available.** _**Saleena**_ **held that the non-communication of the order rejecting representation cannot vitiate the detention and the Court's duty is only to ensure that the rejection is not in a mechanical manner. Here there is an additional ground taken of delay in consideration of** **- 18 -** **W.P(Crl).133 of 2021** **Ext. P4 representation by the Government. We see from the files that even before the reference to the Advisory Board the Government had considered both the representations, dated 27.10.2020 and 28.10.2020, which were rejected on 03.11.2020 itself. The same was also communicated by letter dated 10.11.2020. However, the Government sent both the representations to the Advisory Board, which is only proper as held in** _**Golam Biswas v. Union of India & Another [2015 (16) SCC 177].**_ **Later after the Board issued the order of affirmation and the detention for one year was confirmed by the Government on 05.01.2021; the representation was considered again and rejected on 10.01.2021.** **We find no reason to interfere with the detention ordered and reject the writ petition without any order on costs.** **Sd/K.Vinod Chandran Judge** **Sd/Ziyad Rahman, A.A. JUDGE** **jma/Vku.** **- 19 -** **W.P(Crl).133 of 2021** ## **- APPENDIX OF WP(CRL.)NO.133/2021 S** **PETITIONER'S EXHIBITS** - **EXHIBIT P1** **TRUE COPY OF ORDER NO.C1-9061/2020 DATED 20.10.2020 OF THE 2ND RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE RECEIPT EVIDENCING THE FILLING OF COMPLAINT BEFORE THE CHIEF MINISTER'S PUBLIC GRIEVANCE REDRESSAL CELL ON 04.05.2012.** - **EXHIBIT P3 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY, PRESS TRUST OF INDIA ON 22.08.2016.** - **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 28.10.2020 FILED BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE POSTAL RECEIPT EVIDENCING THE ISSUANCE OF EXT P4 REPRESENTATION.** - **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 10.11.2020 OF THE 1ST RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 28.10.2020 FILED BEFORE THE 4TH RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE POSTAL RECEIPT EVIDENCING THE ISSUANCE OF EXT P7 REPRESENTATION.** - **EXHIBIT P9 TRUE COPY OF THE LETTER DATED 04.11.2020 OF THE 4TH RESPONDENT.** **EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DATED 28.10.2020 FILED BEFORE THE 4TH RESPONDENT.** - **EXHIBIT P11 TRUE COPY OF THE POSTAL RECEIPT EVIDENCING THE ISSUANCE OF EXT P10 REPRESENTATION.**