REMA VIJAYALAL v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **FRIDAY ,THE 21ST DAY OF DECEMBER 2018 / 30TH AGRAHAYANA, 1940 WP(Crl.).No. 335 of 2018** ## **PETITIONER/S:** **REMA VIJAYALAL AGED 47 YEARS W/O. VIJAYALAL, THEKKETHARA HOUSE, KUTTANALLOOR P.O., ELAMTHURUTHY, THRISSUR - 680014. BY ADV. SRI.M.H.HANIS** |**RESPONDENT/S**<br>**:**|**RESPONDENT/S**<br>**:**|| |---|---|---| |**1**||**STATE OF KERALA**| |||**REPRESENTED BY THE PRINCIPAL SECRETARY TO**| |||**GOVERNMENT,**| |||**HOME AND VIGILANCE DEPARTMENT,**| |||**GOVERNMENT SECRETARIAT,**| |||**THIRUVANANTHAPURAM - 695001.**| |**2**||**THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE**| |||**THRISSUR, PIN- 680003.**| |**3**||**THE CITY POLICE CHIEF**| |||**THRISSUR - 680020.**| |**4**||**THE CHAIRMAN**| |||**ADVISORY BOARD, KAAPA, SREENIVAS,**| |||**PADAM ROAD, VIVEKANANDA NAGAR,**| |||**ELAMAKKARA, PIN- 682026.**| |**5**||**THE SUPERINTENDENT TO JAIL,**| |||**CENTRAL JAIL, KANNUR - 670004.**| |||**BY SRI. K.A ANAS, GOVERNMENT PLEADER**| **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 21.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** K.VINOD CHANDRAN & ASHOK MENON, JJ. ------------------------------------------WP(Crl.) No.335 of 2018 ------------------------------------------Dated this the 21[st] day of December, 2018 J U D G M E N T ## Ashok Menon, J. Petitioner is the mother of the detenu, named Amith Sankar @ Pass, aged 25 years, who is undergoing detention pursuant to Ext.P1 order under Section 3(1) read with Section 13(2)(i) of the Kerala Anti Social Activities (Prevention) Act, 2007 ('KAAPA', for short), passed by the second respondent dated 28.02.2018, confining the detenu to preventive detention. 2. The records indicate that the detenu was, on an earlier occasion, subjected to a preventive detention on 22.08.2016, which was confirmed by the Government on the basis of the opinion rendered by the Advisory Board, consequent to which, the detenu was in custody from 27.08.2016 to 27.02.2017. WP(Crl.) No.415/2016 filed by the petitioner herein challenging that order of detention, was dismissed by a Division Bench of this Court. The detenu was thus classified as a “known rowdy” as defined under Section 2(p)(iii) read with Section 2(t) of the KAAPA, being involved in five crimes, within a period of seven years. WP(Crl.)335/18 -3- 3. Consequent to his release from the custody, from the last detention order on 27.02.2017, the detenu got involved in yet another crime No.1158/2017 of Mannuthy Police Station for offences punishable under Section 394 read with Section 34 of Indian Penal Code on 30.09.2017, and the final report was filed on 29.10.2017. As the offence alleged comes under Chapter-XVII of the IPC it was sufficient to attract the provisions of Section 2(t) of KAAPA. Being a person who had already undergone detention once, and found to have again involved in an offence of the nature described under Section 2(p), the sponsoring authority being the District Police Chief, Thrissur City, filed a report dated 02.02.2018 on the basis of which the detaining authority passed the order of detention. 4. The learned counsel for the petitioner points out certain infirmities in the proceedings and seeks release of the accused invoking the power to issue writ of Habeas Corpus. WP(Crl.)335/18 -4- 5. The first objection is that the detenu was arrested on 10.03.2018 which was after more than 11 days consequent to the order of detention passed on 28.02.2018 and that the delay is unexplained. 6. The second point raised by the learned counsel for the petitioner is that two representations (Exts.P2 and P3) made by the petitioner on behalf of her son, were not properly considered. Ext.P2 before the Government on 16.03.2018 was rejected, and Ext.P4 approval of detention was made on 24.03.2018. It is submitted that the objections raised in Ext.P2 have not been discussed and answered in Ext.P4 and therefore, the order of detention is not valid. 7. Ext.P3 representation was made before the Advisory Board. That also has not been considered by the Advisory Board and therefore, resulted in prejudice to the detenu. The Advisory Board had confirmed the detention order on 20.03.2018, and on 28.04.2018 vide Ext.P6, the Government has approved the detention of the detenu with effect from the date of detention. Neither in Ext.P6, did the Government consider Ext.P3 WP(Crl.)335/18 -5- representation filed before the Advisory Board and therefore, the detention is unsustainable. 8. Yet another objection raised by the petitioner is that copies of the earlier crimes in which the detenu was allegedly involved during the period of seven years were not supplied to the detenue and therefore, prejudice has been caused. 9. It is submitted that Crime No.2194/14 of Ollur Police Station is one of the crimes relied upon for the purpose of detention. But, that has ended in acquittal and this fact has not been considered either by the detaining authority, Advisory Board or the Government. 10. Lastly, the learned counsel for the petitioner submits that Ext.P6 order confirming detention is not by a competent authority because the Additional Chief Secretary to Government has not signed that order and the copy, which is forwarded to the detenu, is seen only signed by the Section Officer and therefore, it is not sustainable. WP(Crl.)335/18 -6- 11. Heard the learned counsel appearing for the petitioner and the learned Government Pleader. 12. The first objection that there is delay in the arrest of the detenu consequent to the detention order and hence, the detention is vitiated, does not appeal to us. The detention order was passed on 28.02.2018 and report was submitted to the Government on 02.03.2018. The Government approved the order of detention on 20.03.2018 and even prior to that the order of detention was executed on 10.03.2018. Nowhere is it stated that the order of detention has to be executed forthwith. If such a contention is accepted, a person who successfully evades arrest could always take the ground of delay to avoid the detention. The last prejudicial act by the detenu was committed on 30.09.2017, in connection with which he was arrested on 01.10.2017 and released on bail only on 01.12.2017. The detenu having been arrested after 11 days of order of detention, there cannot be alleged an unreasonable delay, and the live-link has not been snapped from the last date of prejudicial activity to the date of his detention order or WP(Crl.)335/18 -7- the actual arrest. Hence, this objection raised by the petitioner is not acceptable to us. 13. The next objection raised by the petitioner is that the representation made by the petitioner before the Government as Ext.P2 has not been considered. Ext.P4 is the reply sent to the petitioner regarding the consideration of Ext.P2 submission made by her. In that, it is stated that the Government has considered the objections raised by the petitioner with regard to the detention of her son and held that the objections are not sustainable and therefore, the request to release the detenu was rejected. The reply given vide Ext.P4 clarifies that Ext.P2 submission made by the petitioner before the Government has been considered and rejected on merits. Therefore, the contention that Ext.P2 representation was not considered, is not acceptable to us. 14. It is contended that Ext.P3 representation made before the Advisory Board, has not been considered by the Board or thereafter by the Government before upholding the order of detention. WP(Crl.)335/18 -8- The learned Government Pleader placed before us the file containing the report of the Advisory Board. In that report, it is admitted that a representation was submitted by the detenu before the Advisory Board. But, on going through the opinion of the Advisory Board, it is seen that the representation has not been considered, discussed or referred to in the opinion. 15. Section 7(2) of the KAAPA states that when a person is arrested in pursuance of a detention order, he shall be informed in writing, under acknowledgment, of his right to represent the Government and before the Advisory Board against his detention. The representation made by the petitioner before the Government as per Ext.P2 has been rejected after considering it. But, the Section also provides for the right of the detenu to make a representation before the Advisory Board against his detention. The orders of the Advisory Board would also indicate that such a representation was received by the Board. But, unfortunately, that representation has not been discussed and rejected on merits by the Advisory Board. WP(Crl.)335/18 -9- Section 7(2) insists on informing the detenu of his right to make a representation not only before the Government, but also before the Advisory Board. If such a representation is made before the Advisory Board, it is incumbent that the Board shall go through it and on its merits either allow or reject it. The fact that the representation made by the detenu was not considered at all by the Advisory Board would definitely be prejudicial to the detenu. 16. It is also pertinent to note that the findings of the Advisory Board as per Section 10(4) of the KAAPA are binding on the Government in case the opinion of the Board is against the detention, and the Government shall revoke the detention order. Even if the Advisory Board is of the opinion that there is sufficient cause for detention of a person, the Government has option either to accept it or reject it. Hence, the learned counsel's argument that in case the representation made by the petitioner for the detenu before the Advisory Board had been considered, there was every possibility that it would have been accepted WP(Crl.)335/18 -10- by the Advisory Board and the Board could have formed an opinion that no sufficient cause for detention of the detenu concerned existed. Such opinion of the Advisory Board would then have been binding on the Government to revoke the order of detention. In view of the fact that the representation made by the petitioner was neither considered nor referred to in the order of the Advisory Board, the detention order cannot be sustained. We find substance in this objection raised by the petitioner. 17. The objection of the petitioner that copies of the earlier crimes against the detenu have not been furnished and therefore, the detention order is invalid, is not acceptable to us. The earlier detention order was confirmed even by this Court. That detention order could not have been confirmed without serving copies of the records pertaining to the crimes mentioned therein on the detenu. The present detention is one under Section 13(2)(i) of KAAPA, which requires only one instance of involvement in a crime and all records pertaining to that crime have been handed over WP(Crl.)335/18 -11- to the detenu. Hence, the argument that the records pertaining to the earlier crimes, which he was already in possession of, were not given again, is not a ground to set aside the detention. 18. Yet another argument of the learned counsel appearing for the petitioner is that crime No.2194/14 of Ollur Police Station against the detenu had ended in acquittal, and that factor has not been considered by the detaining authority, Advisory Board or the Government, and therefore, the detention is not sustainable. There is absolutely no material to indicate that the fact of acquittal of the detenu was brought to the notice of the detaining authority or the Advisory Board. No material is placed before us as well, to indicate that the detenu was acquitted in one of the crimes. Even if that crime is ignored, the detenu was involved in more than three crimes during the period of seven years, which would have been sufficient to proceed against him under the KAAPA. Hence, this argument of the learned counsel for the petitioner is not acceptable to us. WP(Crl.)335/18 -12- 19. More over, the fact that the criminal court has acquitted the detenu in one of the cases is not a bar to order preventive detention as is held by the Honourable Supreme Court in 1975 KHC 525 [Sadhu Roy v. State of W.B.], wherein it is held as follows: “10.1 The discharge or acquittal by a criminal court is not necessarily a bar to preventive detention on the same facts for 'security' purposes. But if such discharge or acquittal proceeds on the footing that the charge is false or baseless, preventive detention on the same condemned facts may be vulnerable on the ground that the power under the MISA has been exercised in a malafide or colourable manner.” 20. The final point raised by the learned counsel for the petitioner is that Ext.P6 order has not been signed by the authority. On a perusal of Ext.P6, which is the abstract of the order dated 28.04.2018, it is seen that the order is passed by Subrata Biswas, who is the Additional Chief Secretary to Government. Section 3(3) of KAAPA states that the order has to be approved by the Government or by the Secretary, Home Department, if generally so authorised in this regard by the Government. The order is made by the Additional -13- WP(Crl.)335/18 Chief Secretary to Government, Home Department. Therefore, there is absolutely no infirmity in the order, as pointed out by the learned counsel for the petitioner, and is not acceptable to us. 21. The detenu is, therefore, to be released only for the reason that Ext.P3 representation made before the Advisory Board was not duly considered by the Board. Therefore, the opinion of the Board cannot be said to be sustainable. Resultantly, the order of detention confirmed by the Government based on the opinion of the Advisory Board would also not be sustainable. 22. In the light of the findings above, the detention proceedings against the detenu is set aside and the detenu Amith Sankar @ Pass, aged 25 years, Thekethara House, Kuttanalloor P.O., Elamthuruthy, Thrissur, PIN - 680 014; who is now detained in Central Prison, Kannur, is ordered to be set at liberty, if he is not required in connection with any other case. Registry shall communicate this order to the WP(Crl.)335/18 -14- Superintendent of Central Prison, Kannur forthwith, for compliance. The writ petition is allowed. There shall be no order as to costs. **Sd/-** **K.VINOD CHANDRAN JUDGE** **Sd/ASHOK MENON JUDGE** WP(Crl.)335/18 -15- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF ORDER NO.C1-4523/2018 DATED 28/02/2018 OF THE 2ND RESPONDENT ALONG WITH THE ENCLOSED RECORDS.** - **EXHIBIT P2** **TRUE COPY OF THE REPRESENTATION DATED 16/03/2018 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 16/03/2018 SUBMITTED BY THE DETENUE BEFORE THE CHAIRMAN, ADVISORY BOARD, KAAPA.** - **EXHIBIT P4 ORIGINAL OF THE REPLY OF THE 1ST RESPONDENT DATED 24/03/2018** - **EXHIBIT P4(a) ORIGINAL POSTAL COVER.** - **EXHIBIT P5** - **ORIGINAL ORDER NO. HOME-SSA1/81/2018HOME DATED 20/03/2018 OF 1ST RESPONDENT.** - **EXHIBIT P6 ORIGINAL GO(RT) NO.1226/2018/HOME DATED 28/04/2018.** **EXHIBIT P7 TRUE COPY OF PETITION FILED BY THE DETENUE BEFORE THE 5TH RESPONDENT.** [True Copy] jg