Ramseena S v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN WEDNESDAY, THE 13[TH] DAY OF DECEMBER 2023 / 22ND AGRAHAYANA,** ## **1945** ## **WP(CRL.) NO. 789 OF 2023** ## **PETITIONER/S:** RAMSEENA S, AGED 26 YEARS W/O SANOOJ, EDANADU P.O, VARINJAM, CHATHANOOR, KOLLAM,, PIN - 691579 BY ADVS. M.H.HANIS P.M.JINIMOL T.N.LEKSHMI SHANKAR ANANDHU P.C. NEETHU.G.NADH CIYA E.J. ## **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, KOLLAM DISTRICT, PIN - 691013 3 THE DISTRICT POLICE CHIEF KOLLAM CITY, PIN - 691001 WP(Crl) No.789/2023 ..2.. 4 THE CHAIRMAN ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD, VIVEKANANDA NAGAR, ELAMAKKARA, PIN - 682026 5 THE SUPERINTENDENT OF JAIL, CENTRAL JAIL, VIYYUR, PIN - 670004 BY ADVS. SRI.K.A.ANAS - PP ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11) ADDL. STATE PUBLIC PROSECUTOR(AG-28) THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 23.11.2023, THE COURT ON 13.12.2023 DELIVERED THE FOLLOWING: WP(Crl) No.789/2023 ..3.. ## **JUDGMENT** ## SHOBA ANNAMMA EAPEN, J. The prayers in the above Writ Petition ## (Criminal) are as follows; “i. call for the records leading to Ext.P1 and quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction. ii. Issue a writ of habeas corpus commanding the respondents to produce the body of the detenu, Sanooj, aged 32 years, s/o Salim, Zayan House, Edanadu P.O., Varinjam, Chathanoor, Kollam, PIN-691 579, the husband of the petitioner who is illegally detained in Central Prison, Viyur before the Hon'ble Court and set him at liberty forthwith.” 2. The petitioner is the wife of the _detenu_ , who has been ordered to be preventively detained as per the impugned Ext.P1 detention order dated 13.07.2023, issued by the second respondent - District Collector & District Magistrate, Ernakulam. The _detenu_ was earlier detained under S.3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 [for short, WP(Crl) No.789/2023 **==> picture [31 x 7] intentionally omitted <==** “KAA(P)A”], as per proceedings dated 07.12.2020, and is a 'known rowdy' as per S.2(p)(iii) read with S.2(t) of the Act. 3. According to the respondents, after the expiry of the previous detention order, the _detenu_ again got involved in five crimes and hence, the third respondent – District Police Chief, Kollam City, requested to issue an order of detention u/s.3(1) of KAA(P)A. Out of the 13 cases submitted by the sponsoring authority, two were not considered for issuing detention order. Details of the 11 cases considered for detention are as follows; |Sl.<br>No.|Crime<br>No.|Police<br>Station|Crime<br>Date|Section<br>involved|Present stage<br>(At the time of<br>reporting)| |---|---|---|---|---|---| |1|d7/16|Chathannoor|25/10/16|20(b)(ii)<br>(A) of<br>NDPS Act|ST 8/18, JFCM<br>I, Paravur<br>(acquitted)| |2|17/18|Chathannoor|09/04/18|20(b)(ii)<br>(A) of<br>NDPS Act|CC 213/18,<br>JFCM-I, Paravur<br>(acquitted)| |3|19/19|Chathannoor|21/04/18|20(b)(ii)<br>(A) of<br>NDPS Act|CC 112/18,<br>JFCM-I, Paravur<br>(acquitted)| |4|151/16|Chathannoor|25/10/16|55(A),|SC 491/19,| WP(Crl) No.789/2023 ..5.. |||||55(I),<br>67(B) of<br>Abkari<br>Act|JFCM-I,<br>Paravur, now@<br>Sub Court,<br>Paravur| |---|---|---|---|---|---| |5|266/18|Chathannoor|26/03/18|341, 323,<br>324, 325,<br>34 IPC|CC 466/18,<br>JFCM-I, Paravur| |6|620/18|Parippally|22/07/18|20(b)(ii)<br>(B) of<br>NDPS Act|SC 1353/18,<br>Dist. Sessions<br>Court, Kollam| |7|20/19|Chathannoor|19/02/19|20(b)(ii)<br>(B) of<br>NDPS Act|SC 370/20,<br>JFCM-I,<br>Paravur, now @<br>Addl.SC, Kollam| |8|61/19|Chathannoor|15/10/19|20(b)(ii)<br>(A) of<br>NDPS Act|CC 182/20,<br>JFCM-I, Paravur| |9|21/23|Chathannoor|02/01/23|294(b),<br>341, 323,<br>324, 34<br>of IPC|CC 109/23,<br>JFCM-I, Paravur| |10|197/23|Parippally|11/02/23|451, 363,<br>34 of IPC|On<br>Investigation| |11|754/23|Parippally|05/06/23|20(b)(ii)<br>(B) &<br>22(c) of<br>NDPS Act|On<br>Investigation| 4. The 3[rd] respondent – District Police Chief – as the Sponsoring authority, has given a report in the matter, recommending to issue an order under S.3(1) of KAA(P)A so as to preventively detain the petitioner, in order to WP(Crl) No.789/2023 **==> picture [31 x 7] intentionally omitted <==** prevent him from committing further prejudicial anti-social activities as understood in S.2(aa) of KAA(P)A. After taking into consideration the said report, the second respondent has passed the impugned Ext.P1 detention order dated 13.07.2023 stating that, in view of the factual aspects stated therein, the _detenu_ is ordered to be preventively detained under S.3(1) of KAA(P)A, in order to prevent him from committing further prejudicial activities. 5. At the time of issuance of Ext.P1 detention order, the _detenu_ was already in judicial custody from 05.06.2023, in connection with Crime No.754 of 2023 of Parippally Police Station and after getting formal permission of the jurisdictional Magistrate Court concerned, the second respondent has ensured execution of Ext.P1 detention order by formal arrest of the _detenu,_ which was effected on 16.07.2023. Ext.P1 detention was approved by the respondent WP(Crl) No.789/2023 **==> picture [31 x 7] intentionally omitted <==** Government on 29.07.2023. 6. The main ground urged by the petitioner is against the legality of the subjective satisfaction arrived at by the second respondent in issuing Ext.P1 detention order. Learned counsel for the petitioner has raised the following averments; a)The _detenu_ being under judicial custody alleging commission of offence punishable u/s 20(b)(ii)B and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “NDPS Act”), the sponsoring authority or the detaining authority has not considered the fact that there is a statutory bar under Section 37 of the NDPS Act for grant of bail in cases involving commercial quantity. b)Ext.P1 order was not sent to the government and to the State Police Chief for detailed verification and approval as per Section 3(3) of the Act. WP(Crl) No.789/2023 **==> picture [31 x 7] intentionally omitted <==** c)Out of the 11 crimes, four crimes were pleaded guilty; in one case, FIR is quashed by this Court; one case is bailable offence; in two crimes, reports are not filed; and only three cases are ripe before the court; and the sponsoring authority or the detaining authority failed to consider this aspect. 7. In support of his contentions, the learned counsel for the petitioner relied on a _catena_ of decisions such as, **Vijay Kumar** v. **Union of India & Others** [1988 KHC 924]; **Fasil** v. **State of Kerala** [2023 (3) KHC 212]; **Abdul Sathar Ibrahim Manik** v. **Union of India & Others** [1992 KHC 726]; **Shiraz Ahmad Lone** v. **State & Others** [2012 KHC 3192]; **Union of India Through Joint Secretary (COFEPOSA), Ministry of Finance, New** **Delhi** v. **Ankit Ashok Jalan** [2019 KHC 7166] **Sushanta Kumar Banik** v. **State of Tripura & Others** [2022 KHC 7042]; and **Riyas** v. **State of Kerala** [2023 (3) KHC 526]. WP(Crl) No.789/2023 **==> picture [31 x 7] intentionally omitted <==** 8. However, the main argument that there is a statutory bar under Section 37 of the NDPS Act for grant of bail in cases involving commercial quantity has no relevance in view of the fact that the _detenu_ was enlarged on bail in the said case. 9. Learned Public Prosecutor would strongly oppose the tenability of the abovesaid pleas put forward by the learned counsel for the petitioner and submit that the said pleas are liable to be rejected by this Court. It is pointed out that earlier, the _detenu_ was under detention in the year 2020 and after releasing from prison, he again involved in four crimes. The learned Public Prosecutor further contended that out of 11 cases, three cases were convicted by the court, six cases are pending before the courts and the remaining two cases are under investigation. According to him, the allegation that the report was not sent to the government forthwith is not WP(Crl) No.789/2023 **==> picture [37 x 7] intentionally omitted <==** correct. On 14.07.2023, in compliance with Sec.3(3) of the KAA(P)A, the report was sent to the Government and the Director General of Police through e-mail along with a copy of the order and supporting records. The arrest was communicated to the Government in time and the Government approved the order of detention on 29.07.2023, within the time limit prescribed. 10. The _detenu_ was involved in 11 crimes and earlier in the year 2020, he had been under preventive detention. Therefore, there cannot be any serious quarrel that the _detenu_ had continued to be a person within the definition of 'known rowdy' or 'known goonda', as understood in S.2(o) or 2(p) of KAA(P)A. There is also no factual dispute that after expiry of the previous detention order, the _detenu_ has got involved in several crimes. Though the learned counsel for the petitioner vehemently argued with regard to the statutory bar under Section 37 of the NDPS WP(Crl) No.789/2023 **==> picture [37 x 7] intentionally omitted <==** Act, it was admitted that the _detenu_ was already on bail. Hence, the question of statutory bar does not arise in this case. On a reading of paragraph VIII of Ext.P1, it can be seen that the detaining authority had considered that the _detenu_ was under judicial remand in the last crime and that, if he is released on bail, he is very likely to commit further prejudicial antisocial activities and that the second respondent is fully satisfied that it is imperative to issue an order under S.3(1) of KAA(P)A to detain the _detenu_ in order to ensure that he is restrained from committing further anti-social activities. **==> picture [380 x 13] intentionally omitted <==** under Art.21 of the Constitution of India provides for its deprivation according to the procedure established by law. Likewise, the freedom guaranteed under Art.19(1)(d) & (e) can be fettered by sub-clause (5) in the interest of the general public. While considering the WP(Crl) No.789/2023 **==> picture [37 x 7] intentionally omitted <==** constitutional validity of the preventive detention laws, the Honourable Supreme Court, in **A.K.Roy** v. **Union of India and Others** [1982 (1) SCC 271], held thus: "It is evident that the power of preventive detention was conferred by the Constitution in order to ensure that the security and safety of the country and the welfare of its people are not put in peril. SO long as a law of preventive detention operates within the general scope of the affirmative words used in the respective entries of the union and concurrent lists which give that power and so long as it does not violate any condition or restriction placed upon that power by the Constitution, the Court cannot invalidate that law on the specious ground that it is calculated to interfere with the liberties of the people. Khanna, J., in his judgment in the Habeas Corpus case, 1976 Supp SCR 172 at pp.291292, 294-296 : (AIR 1976 SC 1207 at pp. 1268, 1269, 1270, 1271 and 1272), has dwelt upon the need for preventive detention in public interest." 12. The _detenu_ is involved in crimes related to NDPS with commercial quantity and after release from prison, he again involved in several crimes. Further, it is well settled that an order of preventive detention can be validly passed against a person already in judicial custody and for that purpose, it is necessary WP(Crl) No.789/2023 **==> picture [37 x 7] intentionally omitted <==** that, (1) the detaining authority must be aware of the fact that the _detenu_ is already under detention; (2) there were compelling reasons justifying such detention, despite the fact that the _detenu_ is already under detention. Further, the compelling reasons in that regard should imply that there must be cogent materials before the detaining authority, on the basis of which, it is to be satisfied that, (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of antecedent activities of the _detenu_ , it is likely that, after his release from custody, he would indulge in prejudicial activities and hence, it is necessary to detain him in order to prevent him from engaging in such further activities, as thus held in **Dharamendra Suganchand Chelawat** v. **Union of India & Others** [1990 (1) SCC 746]. So, the law is well settled that the abovesaid legal parameters should be fulfilled by the detaining WP(Crl) No.789/2023 ..14.. authority to justify a case of preventive detention. 13. In the instant case, the detaining authority was satisfied that the _detenu_ was likely to be released from custody and he would indulge in prejudicial activities and the preventive detention order is imperative and necessary with a view to prevent him from committing further prejudicial activities, in view of the aspects stated in Ext.P1. The detaining authority scrutinized the previous history of the _detenu_ independently and satisfaction was arrived at that the _detenu_ committed crimes continuously by causing threat and fear among the public and that the _detenu_ was a drug offender and it is necessary to prevent him from pursuing such crimes. The detaining authority passed the detention order on 13.07.2023 and the order was executed on 16.07.2023. As regards the ground raised by the WP(Crl) No.789/2023 **==> picture [37 x 7] intentionally omitted <==** petitioner that Ext.P1 order was not sent to the government and to the State Police Chief for detailed verification and approval as per Section 3(3) of the Act, paragraph nos.28 and 29 of the counter affidavit filed by the respondents are extracted hereunder; “28. With regard to Para 8, 9 & Ground F, it is submitted that, the District Magistrate, Kollam as per his letter No.DCKLM/4420/2023/M16 dated 14.07.2023, forthwith informed the Government about the issuance of detention order dated 13.07.2023 along with copy of the order and connected documents as per section 3(3) of the Act. The detention order was executed on 16.07.2023 and admitted in Central Prison, Thiruvananthapuram. Superintendent, Central Prison, Thiruvananthapuram after complying the provisions under section 7 of the Act informed the same in Government. Thereafter the District Magistrate as per No.DCKLM/4420/2023/M16 dated 22.07.2023 submitted proposal for approval of the detention order along with connected documents as required u/s 3(3) of the Act. Section 3(3) of the Act, lays down that the Order of Detention passed by the Authorised Officer needs to be approved by Government within 12 days excluding public holidays from the date of detention of the person and not from the date of detention order. Hence the time limit of 12 days for approval from Government has to be counted from 16.07.2023 and not from 13.07.2023. Due to 'Karkkidada Vavu' and 'Muharam' 17.07.2023 and 28.07.2023 were holidays for Government offices. Also 16.07.2023 and 23.07.2023 were Sundays and these 4 dates have to be excluded in counting the days for Order of Approval of the detention order as per section 3(3) of the Act. WP(Crl) No.789/2023 ..16.. 29. Government approved the detention order within the prescribed time limit on 29.07.2023. The said 'Order of Approval' was served to the detenu through the Superintendent of Central Prison, Viyyur.” **==> picture [380 x 11] intentionally omitted <==** follows: “3. Power to make orders for detaining Known Goondas and Known Rowdies. - xxxxx (3) When any order is made under this section by the authorised officer under sub-section (2), he shall forthwith report the fact to the Government and the Director General of Police, Kerala, together with a copy of the order and supporting records which, in his opinion, have a bearing on the matter and no such order shall remain in force for more than 12 days, excluding public holidays, from the date of detention of such Known Goonda or Known Rowdy, unless, in the meantime, it has been approved by the Government or by the Secretary, Home Department if generally so authorised in this regard by the Government.” **==> picture [380 x 12] intentionally omitted <==** sent to the government and proper explanation has also been given by the respondents regarding compliance of the procedure under Section 3(3) of KAA(P)A. It is a fact that the detenu was under WP(Crl) No.789/2023 **==> picture [37 x 7] intentionally omitted <==** detention from 10.12.2020 as per detention order dated 07.12.2020 of the District Collector & District Magistrate, Kollam and had been in prison to undergo the period of detention and after release, he again got involved in several crimes. Restrictions were made on the rights of the _detenu_ to protect the public order and peaceful life of people from the anti-social activities of the _detenu._ We do not find any merit in this writ petition. The Writ Petition (Crl) is, therefore, dismissed. ## **Sd/-** ## **A. MUHAMED MUSTAQUE** ## **JUDGE** **Sd/-** **SHOBA ANNAMMA EAPEN** **JUDGE** bka/- WP(Crl) No.789/2023 ..18.. ## **APPENDIX OF WP(CRL.) 789/2023** PETITIONER EXHIBITS Exhibit-P1 A TRUE COPY OF ORDER NO. DCKLM/4420/2023 M-16 DATED 13.07.2023 OF THE 2ND RESPONDENT