High Court of KeralaDivision Bench2012-08-17Order of detention quashed; detenu released for...

Rasheed v. District Magistrate, Kollam District; Commissioner of Police, Kollam District; Sub Inspector of Police, Karunagappally; State of Kerala

Case / Petition Number:WP(Crl.) No. 323 of 2012 (S)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. T. Sankaran
M. L. Joseph Francis
Judgment Date: 2012-08-17
Court Decision / Holding: The writ petition is allowed; the detention order is quashed and the detenu is to be released forthwith.
Final Disposition: Order of detention quashed; detenu released forthwith.

Parties to the Case

Appellants / Petitioners

Rasheed

Respondents

District Magistrate, Kollam District
Commissioner of Police, Kollam District
Sub Inspector of Police, Karunagappally, Kollam District
State of Kerala, represented by Home Secretary, Home Department, Secretariat, Thiruvananthapuram
Addl. Director General of Prosecution Sri.K.I.Abdul Rasheed

Legal Representation & Advocates

Counsels for Petitioners

• Sri B. Sainu

Case Synopsis & Summary

Rasheed, father of Nizar, challenges detention of his son under the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA). Nizar was detained on 2.6.2012, arrested on 9.6.2012, and the Government approved the detention under Section 3(3) KAAPA on 20.6.2012. The grounds of detention state that the detenu is a "known rowdy" under Section 2(p)(iii) KAAPA, on the basis of three criminal cases: Crime No.2069 of 2011 (IPC sections 143, 147, 148, 324, 308, 345) pending as CP No.7 of 2012; Crime No.2810 of 2011 ( IPC 363 read with 34) pending as CC No.615 of 2012; and Crime No.45 of 2012 (IPC sections 450, 376, 506(1)) pending as CP No.88 of 2012. The detaining authority, after receiving a report from the City Police Commissioner, recorded its subjective satisfaction that the detenu’s activities would be detrimental to public safety and order. The petitioner argued that the detaining authority did not properly apply its mind, contending that the offences are ordinary criminal acts that can be dealt with by regular law, making preventive detention unnecessary. He relied on Supreme Court decisions including Rekha, Munagala Yadamma, Haradhan Shah, and Sreedevi v. State of Kerala to argue that the ingredients of Section 2(a) KAAPA must be satisfied and that mere registration of crimes cannot justify detention. The High Court agreed that the detaining authority failed to apply mind to the 2(a) requirements, quashed the detention order, and directed the detenu’s release from Central Prison, Viyyur.

Provisions of Law Cited

Kerala Anti-Social Activities (Prevention) Act, 2007 - Section 2(a)Kerala Anti-Social Activities (Prevention) Act, 2007 - Section 2(p)(iii)Kerala Anti-Social Activities (Prevention) Act, 2007 - Section 3(3)Indian Penal Code - Section 143Indian Penal Code - Section 147Indian Penal Code - Section 148Indian Penal Code - Section 324Indian Penal Code - Section 308Indian Penal Code - Section 345Indian Penal Code - Section 363 read with Section 34Indian Penal Code - Section 450Indian Penal Code - Section 376Indian Penal Code - Section 506(1)

Legal Doctrines & Maxims

Anti-social activity must be proven under KAAPA (Section 2(a)) before invoking Section 3 KAAPA.
Ingredients of Section 2(a) KAAPA must be satisfied to invoke Section 3 KAAPA.
Subjective satisfaction of the detaining authority is required and cannot rely solely on registration of offences.
Non-application of mind by the detaining authority vitiates the detention order.
Detention under KAAPA is an extraordinary measure; ordinary criminal law should be the default unless the ingredients of 2(a) are satisfied.
Consideration of the nature of the offence, the number of persons affected, motive, and other relevant facts can influence subjective satisfaction.
References to Rekha, Munagala Yadamma, Haradhan Shah support the need for proper application of mind and the 2(a) ingredients, as clarified in Sreedevi v. State of Kerala.
Sreedevi v. State of Kerala (2012) applied to hold detention vitiated for lack of proper consideration of KAAPA’s prerequisites.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the detaining authority did not properly apply its mind to the ingredients of Section 2(a) KAAPA. He argues that absence of a direct link between the three crimes and anti-social activity means detention cannot be justified under KAAPA; the offences cited are susceptible to regular criminal proceedings and do not demonstrate the public-safety risk required by detention law. The father emphasizes that the subjective satisfaction necessary under KAAPA was not demonstrated, and reliance on the mere number of crimes is insufficient. He cites Rekha, Munagala Yadamma, Haradhan Shah, and Sreedevi to illustrate that the detaining authority must assess whether, despite the existing criminal proceedings, detention is necessary to prevent anti-social activity under KAAPA, and that the facts require a more careful appraisal of Section 2(a) ingredients.

Contentions of Respondents

The respondents argue that the detaining authority properly relied on a report from the Kollam City Police Commissioner and found the detenu’s activities to be detrimental to public safety. They contend that the three cases and their details show potential for anti-social activity and justify preventive detention under KAAPA. They point to the detaining authority’s satisfaction under Section 3(3) KAAPA and argue that the representation against detention did not reveal any flaw that would invalidate the order; they rely on established precedents that KAAPA detention requires more than mere criminal offences and that the authorities must consider relevant aspects under Section 2(a).

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Rekha v. State of Tamil Nadu and another	(2011) 5 SCC 244	Positive	Used to emphasize that detention under KAAPA requires the detaining authority to evaluate the ingredients of Section 2(a) and apply mind beyond mere registration of offences.
Munagala Yadamma v. State of A.P. and others	(2012) 1 KLT SN 61 (C.NO.71) SC = 2012 ACR 383	Positive	Cited to support the need for proper application of mind and consideration of Section 2(a) ingredients in detention proceedings.
Haradhan Shah v. State of W.B. and other	(AIR 1974 SC 2154)	Positive	Referenced as authority on principles governing preventive detention and the necessity of grounded satisfaction.
Sreedevi v. State of Kerala	(2012 (3) KLT 528)	Positive	Applied to verify the requirement that ingredients of Section 2(a) must be present and that non-application of mind vitiates detention.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## 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 17TH DAY OF AUGUST 2012/26TH SRAVANA 1934 ## **WP(Crl.).No. 323 of 2012 (S)** PETITIONER: ------------- RASHEED,, AGED 64 YEARS KANNAMPALLI KIZHAKKETHARAYIL HOUSE, KADATHOOR MURI, KULASEKHARAPURAM VILLAGE, KARUNAGAPALLY, KOLLAM DISTRICT. BY ADV. SRI.B.SAINU RESPONDENTS: - -------------- 1. THE DISTRICT MAGISTRATE, KOLLAM DISTRICT 691 001 2. THE COMMISSIONER OF POLICE, KOLLAM DISTRICT 691 001 3. THE SUB INSPECTOR OF POLICE, KARUNAGAPALLY, KOLLAMD DISTRICT 691 518 4. THE STATE OF KERALA, REPRESENTED BY HOME SECRETARY, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001 ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.K.I.ABDUL RASHEED THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 17-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.** **---------------------------------------------------W.P.(CRL.) NO.323 OF 2012 S ---------------------------------------------------Dated this the 17[th] day of August, 2012** ## **JUDGMENT** ## **K.T.Sankaran, J.** The petitioner, father of Nizar, who has been detained in Central Prison, Viyyur pursuant to an order of detention dated 2.6.2012 under the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as “KAAPA”), challenges the order of detention in this Writ Petition. Pursuant to the order of detention, Nizar was arrested on 9.6.2012. The Government approved the order of detention under Section 3(3) of KAAPA on 20.6.2012. In the order of detention, it is stated that the detenu is involved in three criminal cases and, therefore, he satisfies the definition of “known rowdy” under Section 2(p)(iii) of KAAPA. 2. The following are the cases which are referred to in the order of detention: (i) Crime No.2069 of 2011 of Karunagappally Police Station for the offences under Sections 143, 147, 148, 324, ## **W.P.(CRL.) NO.323 OF 2012 S** :: 2 :: 308 and 345 of the Indian Penal Code. The detenu is accused No.6. The date of occurrence was on 22.8.2011. After completing the investigation, charge was laid before the Court of the Judicial Magistrate of the First Class, Karunagappally and the case is now pending as C.P.No.7 of 2012. (ii) Crime No.2810 of 2011 of Karunagapally Police Station. In that case, an offence under Section 363 read with Section 34 of the Indian Penal Code was alleged in respect of an incident which took place on 22.11.2011. The detenu is accused No.3 in that case. After completing the investigation, charge sheet was filed and the case is now pending as C.C.No.615 of 2012 on the file of the Court of the Judicial Magistrate of the First Class, Karunagapally. (iii) Crime No.45 of 2012 of Karunagappally Police Station. The detenu is the sole accused in that case and the offences alleged are under Sections 450, 376 and 506(1) of the Indian Penal Code. The date of occurrence was on 10.10.2011. After completing the investigation, charge sheet was filed before the Court of the Judicial Magistrate of the First Class, Karunagappally and it is pending as C.P.No.88 of 2012. 3. On the basis of the aforesaid three crimes and on the basis ## **W.P.(CRL.) NO.323 OF 2012 S** :: 3 :: of the report submitted by the City Police Commissioner, Kollam, the detaining authority recorded the satisfaction that the activities of the detenu would be detrimental to the safety of the general public. 4. The learned counsel for the petitioner submitted that the detaining authority did not properly apply his mind while passing the order of detention. The crimes referred to in the grounds of detention are of such a nature that it cannot be said that the detenu was involved in any antisocial activities within the meaning of the KAAPA and that in order to prevent him from committing any antisocial activity, it is necessary to make an order of detention. It is also submitted that even if all the allegations levelled against the detenu are taken as true, no authority could arrive at a conclusion that the activities of the detenu affected the public safety, public order or public health or the safety of individuals. It is submitted that in the nature of the offences alleged against the detenu, ordinary criminal laws of the land would be sufficient to deal with the situation and the extraordinary recourse to preventive detention was uncalled for. 5. Relying on the decisions of the Supreme Court in **Rekha** ## **W.P.(CRL.) NO.323 OF 2012 S** :: 4 :: **v. State of Tamil Nadu and another** [(2011) 5 SCC 244]; **Munagala Yadamma v. State of A.P. and others** (2012 (1) KLT SN 61 (C.NO.71) SC = 2012 ACR 383) and **Haradhan Shah v. State of W.B. and other** (AIR 1974 SC 2154), we held in **Sreedevi** v. **State of Kerala** (2012 (3) KLT 528) thus: “13. ..... Only on the ground that a person is involved in sufficient number of crimes which attract the definition of “known rowdy”, he need not be detained under the provisions of the KAAPA. The detaining authority must be satisfied that with a view to prevent such person from committing any antisocial activity within the State of Kerala in any manner, it is necessary to pass an order of detention. “Anti-social Activity” is defined under Section 2(a) of the KAAPA, which reads as follows : “”anti-social activity” means acting in such manner as to cause or likely to cause, directly or indirectly, any feeling of insecurity, danger or fear among the general public or any section thereof, or any danger to the safety of individuals, safety of public, public health or the ecological system or any loss or damage to public exchequer or to any public or private property or indulges in any activities referred in clauses (c), (e), (g), (h), (i), (l), (m), (n), (q) and (s) of this section” ## **W.P.(CRL.) NO.323 OF 2012 S** :: 5 :: 14. The ingredients of Section 2(a) of the KAAPA must be satisfied, in order to invoke Section 3 of the KAAPA. The subjective satisfaction of the detaining authority should not rest on the mere fact of registration of the required number of crimes against the person concerned. The detaining authority must be satisfied that in spite of the application of the ordinary laws of the land, in order to prevent such person from committing any antisocial activity, his detention is required under the KAAPA. For that purpose, the ingredients of Section 2 (a) of the KAAPA should be available. The nature of the offence, the number of persons affected by the commission of such offence, the motive for the commission of offence and all other relevant facts could be taken into account for the purpose of arriving at the subjective satisfaction of the detaining authority. If there is non-application of mind by the detaining authority in respect of the relevant aspects under Section 2(a) of the KAAPA, the order of detention would be vitiated.” 6. The dictum laid down in **Sreedevi** v. **State of Kerala** (2012 (3) KLT 528) squarely applies to the facts of the present case. The detenu is aged 22 years. He is involved only in three cases. All the three crimes were registered in 2011. There is no indication that ## **W.P.(CRL.) NO.323 OF 2012 S** :: 6 :: after the registration of Crime No.2810 of 2011 in respect of the incident on 22.11.2011, the detenu was involved in any other case before passing the order of detention. The detaining authority, in our view, did not properly apply his mind to the relevant aspects under Section 2(a) of KAAPA. In the representation submitted by the father of the detenu, it was stated that the alleged victim in Crime No.2810 of 2011 was married. It was also stated in the representation that the alleged victim in Crime No.45 of 2012 was leading a licentious life and several persons of the locality made a representation to the Honourable Chief Minister of Kerala and other authorities against her. It is submitted by the learned Additional Director General of Prosecution that the said representation was a creation of the relatives of the detenu. 7. We are of the view that the order of detention is vitiated due to non-application of mind by the detaining authority. 8. For the aforesaid reasons, the order of detention issued against the detenu is quashed and the detenu is set at liberty. The detenu (Nizar, S/o.Kannampalli Kizhakketharayil Rasheed, Kadathoor Muri, Karunagapally) shall be released forthwith from the ## **W.P.(CRL.) NO.323 OF 2012 S** :: 7 :: Central Prison, Viyyur, if his detention is not required in any other case. The Writ Petition (Criminal) is allowed as above. The Registry will communicate the gist of the judgment to the Superintendent of Central Prison, Viyyur. **(K.T.SANKARAN) Judge** **(M.L.JOSEPH FRANCIS) Judge** ahz/