Rajesh Babu s/o Rajendra Babu 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 WEDNESDAY, THE 6TH DAY OF JUNE 2012/16TH JYAISHTA 1934 WP(C).No. 10487 of 2012 (I) --------------------------- ## PETITIONER(S): -------------------- RAJESH BABU S/O RAJENDRA BABU, KALLINGEL VEEDU M.C. PUREM, THAZHAM THEKKU CHERY MOONADU VILLAGE KOLLAM TALUK, KOLLAM DISTRICT. BY ADV. SRI.V.VENUGOPALAN NAIR ## RESPONDENT(S): ------------------------ 1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY LEGISLATURE SECRETARIAT THIRUVANANTHAPURAM-695001. 2. THE SECRETARY, DEPARTMENT OF HOME AFFAIRS, LEGISLATURE SECRETARIAT THIRUVANANTHAPURAM-695001. 3. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, VAZHUTHAKKADU THIRUVANANTHAPURAM-695001. 4. THE DISTRICT COLLECTOR, KOLLAM-689001. 5. THE COMMISSIONER OF POLICE, KOLLAM CITY-689001. 6. THE ASSISTANT COMMISSIONER OF POLICE, CHATHANOOR, KOLLAM DISTRICT-689001. W.P.(C) NO.10487/2012 7. THE CIRCLE INSPECTOR OF POLICE, CHATHANNOOR, KOLLAM DISTRICT-689001. 8. THE SUB INSPECTOR OF POLICE, - CHATHANNOOR, KOLLAM DISTRICT-689001. BY ADGP SRI.K.I.ABDUL RASHEED THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.10487/2012 ## APPENDIX ## PETITIONER(S) EXHIBITS : EXHIBIT P1: TRUE COPY OF THE ORDER OF THE GOVERNMENT OF KERALA BEARING NO.28000/SS.A5/HOME DATED 3.6.11 REVOKING THE EARLIER DETENTION ORDER PASSED BY THE 4TH RESPONDENT DISTRICT MAGISTRATE KOLLAM. EXHIBIT P2: TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.6778/12 DATED 4.4.12. ## ADDITIONAL DOCUMENTS : EXHIBIT P3: COPY OF W.P.(C) NO.6778/12 DATED 16.3.2012. ## RESPONDENTS' EXHIBITS : NIL //TRUE COPY// P.A. TO JUDGE ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.** --------------------------------- W.P.(C) No.10487 of 2012 --------------------------------Dated this the 6[th] day of June, 2012 ## _**JUDGMENT**_ ## K.T.Sankaran, J. The reliefs prayed for in the Writ Petition are the following : “(i) issue a writ of mandamus, direction or order directing respondents 5 to 8 not to arrest the petitioner on the basis of any detention order passed by 4[th] respondent under the provisions of Kerala Anti Social Activities (Prevention) Act, 2007. (ii) Call for the records pertaining to the last detention order passed by the 4[th] respondent against the petitioner and quash the same. (iii) Declare that petitioner cannot be treated as a 'known goonda' or 'known rowdy' as defined in Kerala Anti Social Activities (Prevention) Act, 2007 on the basis of all or any the cases so far registered against the petitioner by the police. W.P.(C) No.10487/2012 2 (iv) to grant any other appropriate relief considering the nature and circumstances of the case.” 2. As per the order dated 26.3.2011, the petitioner was detained under the provisions of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as the KAAPA). That order was revoked by the Government as per Exhibit P1 order dated 3.6.2011. In Exhibit P1, it was stated that it would be open to the authorised officer to pass a fresh order of detention as per law, if it was found necessary. 3. It is stated by the petitioner that Crime Nos.390 of 2010, 765 of 2010, 798 of 2010 and 1063 of 2010 of Paravoor Police Station and Crime Nos.1577 of 2010 and 1579 of 2010 of Chathannoor Police Station were registered against the petitioner. It is also stated that previous order of detention was on the basis of the registration of the aforesaid crimes. However, the learned Magistrate held that those cases were not properly lodged. On that basis, the Government passed Exhibit P1 order revoking the order of detention. It is also stated that the cases were re-lodged W.P.(C) No.10487/2012 3 after curing the defects and the cases are pending consideration before the Magistrate's court. It is also stated that two other crimes were registered against the petitioner subsequently and on that basis, steps were taken to pass an order under the KAAPA against the petitioner. On getting reliable information, the petitioner submitted representations before respondents 1 to 5 putting forward his grievance. The petitioner also filed W.P.(C) No.6778 of 2012 challenging the intending detention order. W.P.(C) No.6778 of 2012 was disposed of as per Exhibit P2 judgment dated 4[th] April 2012, wherein the Division Bench held thus : “4. After having heard the learned counsel for the parties, we do not think that we need grant the reliefs sought for as such. An order of detention is to be passed under Section 3 of the Act by the authorised officer. There are two indispensable elements. Firstly, the Magistrate must be satisfied on the basis of the objective criteria that the person sought to be detained is either a “known goonda” or a “known rowdy”. No doubt, learned counsel for the petitioner would submit that the definition of the word “depredator of environment” under Section 2(g) of the Act W.P.(C) No.10487/2012 4 requires that a person should be involved in direct act. 5. The other inevitable element required for a valid order of detention, is the requisite subjective satisfaction to be entertained by the detaining authority that an order of detention is required. 6. We dispose of the Writ Petition by directing that the Magistrate, if the matter is sponsored by the authority contemplated under Section 3 for detention of the petitioner, will certainly apply his mind to the facts and circumstances which are pointed out by the petitioner, which include his alleged involvement in cases, the earlier order of detention, the revocation of the order of detention, the orders passed by the Magistrate Court, any subsequent development which may have supervened pursuant to the orders of the Magistrate, the legal effect of all these and also subsequent developments in the form of any cases which may have developed and which may attract the provisions of the Act and consider whether the petitioner is a “known goonda” or a “known rowdy”. Needless to say, even if he is found to be W.P.(C) No.10487/2012 5 a “known rowdy” or “known goonda”, the Magistrate must also consider all the relevant inputs to decide whether an order of detention is necessary, that is to say, he must entertain the requisite subjective satisfaction as well.” 4. The petitioner states that he got reliable information that even before the certified copy of Exhibit P2 was submitted to the fourth respondent, an order of detention was passed by him. It is contended that that the fifth respondent mechanically issued recommendation and the fourth respondent without applying his mind and overlooking Exhibit P2 judgment, issued an order of detention, blindly relying on the satisfaction of the investigating officer. 5. The law with respect to the challenge against an order of detention before its execution is well settled in Additional Secretary to the Government of India and others vs. Alka Subhash Gadia and another (1992 Supp (1) SCC 496), wherein the Supreme Court held thus : “The courts have the necessary power and W.P.(C) No.10487/2012 6 they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question.” The decision in Additional Secretary to the Government of India and others vs. Alka Subhash Gadia and another (1992 Supp (1) SCC 496) was followed in Union of India and others vs. Atam Parkash and another (2009 (1) SCC 585). W.P.(C) No.10487/2012 7 6. The grounds on which an order of detention can be challenged at its pre-execution stage, as mentioned in Additional Secretary to the Government of India and others vs. Alka Subhash Gadia and another (1992 Supp (1) SCC 496), are not made out in the present case. The learned Additional Director General of Prosecution submitted that the petitioner is absconding and such an absconding person is not entitled to challenge the detention order before its execution. We are not satisfied that the petitioner has made out sufficient grounds to successfully challenge the order of detention passed under the KAAPA before it is executed. Accordingly, the Writ Petition is dismissed. **K.T.SANKARAN JUDGE** **M.L.JOSEPH FRANCIS JUDGE** csl