R. Deepa v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 6TH DAY OF JULY 2012/15TH ASHADHA 1934 WP(Crl.).No. 254 of 2012 (S) ---------------------------- PETITIONER(S): ------------- R. DEEPA, AGED 35 YEARS W/O. LAL, CHIDAMBARAVILAKOM VEEDU, MULLUVILA ATTIPRA VILALGE, THIRUVANANTHAPURAM BY ADV. SRI.SHAJIN S.HAMEED RESPONDENT(S): -------------- 1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT HOME DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM-695001. 3. THE DISTRICT MAGISTRATE, THIRUVANANTHAPURAM COLLECTORATE KUDAPPANAKKUNNU.P.O., THIRUVANANTHAPURAM-695043. 4. THE DISTRICT POLICE CHIEF THIRUVANANTHAPURAM RURAL OFFICE OF THE SUPERINTENDENT OF POLICE KARUVANKONAM KOWDIAR, THIRUVANANTHAPURAM-695010. 5. THE SUPERINTENDENT OF PRISON CENTRAL PRISON, POOJAPPURA THIRUVANANTHAPURAM-695012. BY DIRECTOR GENERAL OF PROSECUTION SRI.T.ASAF ALI. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 06-072012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(CRL) 254 OF 2012 ## APPENDIX ## PETITIONER(S) EXHIBITS EXT.P1TRUE COPY OF THE ORDER NO. S13/83522/2011 DATED 31-2-2011 ISSUED BY THE 3RD RESPONDENT UNDER SECTION 3(1) OF THE KERALA ANTI-SOCIAL ACTIVITIES PREVENTION ACT, 2007. EXT.P2TRUE COPY OF THE REPORT NO.54/CAMP/09 DATED 16-11-2011 OF THE 4TH RESPONDENT. EXT.P3TRUE COPY OF THE REPORT NO.54/CAMP/2012T DATED 12-1-2012 ISSUED BY THE 4TH RESPONDENT. EXT.P4TRUE COPY OF THE ORDER S13.83522/2011 DATED 17-1-2012 ISSUED BY THE 3RD RESPONDENT. EXT.P5TRUE COPY OF THE ORDER G.O.(RT) NO. 1090/2012/HOME DATED 9-4-2012 PASSED BY THE 1ST RESPONDENT. RESPONDENTS' EXHIBITS : NIL (TRUE COPY ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------W.P.(Crl) No.254 of 2012 ----------------------------------------------Dated 6[th] July, 2012. J U D G M E N T** ## **K.T.Sankaran, J.** The husband of the petitioner, Lal @ MakriLal was detained under the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as 'the KAAPA'). The order of detention was issued on 31.12.2011. In execution of the order of detention, the husband of the petitioner was arrested on 26.1.2012 and he was detained in Central Prison, Thiruvananthapuram. Government approved the detention under Section 3(3) of the KAAPA on 6.2.2012. Confirmation of the order under Section 10(4) of the KAAPA was made on 9.4.2012. 2. The detaining authority, on being satisfied that the detenu was involved in six crimes, passed the order of detention on the ground that the detenu satisfies the definition of “known-rowdy”, as defined under Section 2(p)(iii) of the KAAPA. Out of the six cases, final reports were filed in four cases and the remaining two cases are under investigation. 3. The only sustainable point raised by the petitioner is that Malayalam translation of relevant documents W.P.(Crl) 254/12 2 relied upon by the detaining authority was not supplied to the detenu. It is stated that the detenu does not know to read and write English. After detention, he was supplied with copies of documents. The contention raised by the petitioner is that the Malayalam translation of the report dated 16.11.2011 made by the District Police Chief, Thiruvananthapuram to the detaining authority was not supplied to the detenu. 4. The averments in support of this contention are contained in Ground 'D' of the Writ Petition (Criminal), which read as follows : “D. The detenu was served only with Ext.P2 report which is in English. The detenu is illiterate and he does not know English. No Malayalam Copy of Ext.P2 was provided to the detenu and therefore he was unable to point out the discrepancies in Ext.P2 and P1 by making proper representation. The detenu was not provided sufficient documents in his local language to make effective representation. Therefore there is violation of Section 7 of the Act. Non supply of relevant documents in local language will vitiate the order of detention.” 5. The above contention raised by the petitioner is dealt with in paragraph 10 of the counter affidavit filed on W.P.(Crl) 254/12 3 ## behalf of respondents 1 and 2, the relevant portion of which reads as follows : “10. In Ground D of the Writ Petition, the petitioner has contended that Ext.P2 report of the Sponsoring authority is in English, the detenu, who is not conversant with English, has not been able to file any representation against the order of detention. It is humbly submitted that the Ext.P2 report of the sponsoring authority was in English. However the grounds of detention together with the materials on which the grounds of detention were based, were in Malayalam which is part of the order of detention. The whole purpose of communicating the ground to the detenu is to enable him to make a purposeful and effective representation. In the case on hand, the grounds of detention giving all relevant and sufficient particulars, were communicated to the detenu in vernacular language. Hence it cannot be said that the detenu was in any way handicapped in submitting his representation or there had been any violation of Article 22(5) of the Constitution.” ## 6. In **Said Mohammed K. v. State of Kerala and** **Others** [2011(1) KHC 544 (DB)], a Division Bench of this Court held that non-supply of the Malayalam version of the report of the Sponsoring Authority would vitiate the continued detention of the detenu. The Division Bench relied on the decision of the W.P.(Crl) 254/12 4 Supreme Court in **Radhakrishnan Prabhakaran v. State of Tamil Nadu** [2000(9) SCC 270] wherein, it was held that what is important is that copies of the documents relied on by the detaining authority for reaching the satisfaction that preventive detention of the detenu is necessary, are to be supplied to the detenu. 7. In **Bose v. Secretary to Government** [2010(2) KLT 325 (F.B.)] a Full Bench of this Court held thus : 26. It has to be remembered that a detenu while he is undergoing preventive detention is obviously denuded of his fundamental right to freedom and liberty postulated under the Constitution. Undoubtedly the power to detain a person under the prevention detention laws is hedged in by various safeguards set out in Articles 21 and 22. The so-called “opportunity” that a detenu may be provided in the jail to consult a lawyer while undergoing detention is easily imaginable. The Detaining Authority cannot refuse to give copies of the relevant documents or the translations thereof in vernacular to the detenu concerned, on the plea that the detenu's interest will be taken care of by the Superintendent of the Jail who is statutorily obliged to afford the detenu reasonable opportunity to consult a lawyer and reasonable assistance in making a representation against the detention W.P.(Crl) 254/12 5 order before the Government. However, we hasten to add that the question whether any prejudice has been caused to the detenu because of the non-supply of a document will entirely depend on the facts and circumstances of each case. Though it cannot be laid down as a general proposition of law that failure to provide the translated version of some of the documents will vitiate the order of detention, it can never be held that all relevant documents or translations therefore need not be furnished to the detenu, since he will get legal assistance in the jail through the Superintendent as provided under S.7(3) of the Act. To that extent, the observations made by the Division Bench in _Sathi_ (supra) in respect of Ss.7(2) and 7(3) of the Act of the KAAPA are held to be not good law. 8. The report submitted by the District Police Chief to the detaining authority was relied upon by the detaining authority to arrive at the subjective satisfaction that the detenu should be detained under the KAAPA. It cannot be denied that the report made by the District Police Chief is a vital document relied upon by the detaining authority. From the averments in the counter affidavit, it is fairly clear that Malayalam version of the said report was not furnished to the detenu. We also verified the original files and there is no indication therein that a Malayalam version of the said report was supplied to the W.P.(Crl) 254/12 6 detenu. 9. For the aforesaid reasons, we are of the view that the continued detention of the detenu is illegal. Accordingly, there will be a direction that Lal @ MakriLal, the husband of the petitioner shall forthwith be released from the Central Prison, Thiruvananthapuram, if his detention is not otherwise required. The Writ Petition (Criminal) is allowed as above. The Registry shall communicate the gist of this judgment to the Superintendent, Central Prison, Thiruvananthapuram. Sd/- ## **K.T.SANKARAN, JUDGE.** Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (true copy)