Renu v State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 29TH DAY OF NOVEMBER 2019 / 8TH AGRAHAYANA, 1941** **WP(Crl.).No.350 OF 2019** ## **PETITIONER/S:** **RENU AGED 28 YEARS W/O.MAHESH, KARINATTUVALLI, WARD NO.VI, PALLIPURAM PANCHAYATH, ALAPPUZHA DISTRICT-688541** **BY ADVS. SMT.SANDHYA R.NAIR SRI.M.M.NIAS SMT.V.A.HARITHA** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO**| ||**GOVERNMENT OF KERALA, MINISTRY OF HOME AFFAIRS,**| ||**KERALA GOVERNMENT SECRETARIAT,**| ||**PALAYAM, THIRUVANANTHAPURAM,**| ||**KERALA 695001**| |**2**|**THE DISTRICT COLLECTOR**| ||**1ST FLOOR, COLLECTORATE,**| ||**CIVIL STATION,**| ||**ALAPPUZHA-688001**| |**3**|**THE SUPERINTENDATN OF POLICE**| ||**OFFICE OF THE DISTRICT POLICE CHIEF, 689121**| |**4**|**THE KAAPA ADVISORY BOARD,**| ||**PADOM ROAD, ELAMAKKARA,**| ||**ERNAKULAM-682026 REPRESENTED BY ITS REGISTRAR**| **WP(Crl.).No.350 OF 2019** **2** **5 THE SUPERINTENDANT CENTRAL PRISON, THRISSUR-SHARANUR ROAD, VIYYUR, THRISSUR PIN-680010** **R1-3, R5 BY ADDL.DIRECTOR GENERAL OF PROSECUTION R3 BY PUBLIC PROSECUTOR SRI K.A ANAS** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 29.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(Crl.).No.350 OF 2019** **3** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 29[th ] day of November, 2019**_ ## _**Ravikumar, J.**_ This habeas corpus writ petition _in re_ one Mr. Mahesh, hereinafter referred to as 'the detenu', is filed by his wife Smt. Renu seeking quashment of Exts.P1, P3 and P5; to produce the body of **Mahesh** who has been detained in custody under Exts.P1 and P2 orders and to set him at liberty. Ext.P1 is the order of detention dated 04.06.2019 passed against the detenu under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (for short, 'KAA(P)A'). According to the petitioner, the order was executed on 10.06.2019 and copies of documents were supplied to the detenu pursuant to his arrest. Subsequently, Ext.P1 order was approved by the Government as per Ext.P3 **WP(Crl.).No.350 OF 2019** **4** order dated 25.6.2019 invoking the power under Section 3(3) of KAA(P)A. The matter was referred to the KAA(P)A Advisory Board on 01.08.2019 and according to the petitioner, neither she nor the detenu knew. In the meanwhile, the detenu submitted representation dated 17.06.2019 addressed to the Chairman, Advisory Board. The Advisory Board along with its opinion forwarded the representation to the Government and Ext.P5 order was passed thereafter by the Government. As stated earlier, Exts.P1, P3 and P5 are sought to be quashed. 2. As per Ext.P1, the detenu was ordered to be detained under section 3(1) of the KAA(P)A. Conspicuously, in Ext.P1, the period for which the detenu is to be detained preventively is not mentioned. Before considering the contentions of the petitioner, it is only befitting to consider, firstly, the question what is the effect of non-specification of the period of detention in the order of detention under KAA(P)A? **WP(Crl.).No.350 OF 2019** **5** 3. In the contextual situation, it is relevant to refer to Section 12 of the KAA(P)A. It reads thus:- _“_ _**12. Maximum period of detention** .- In pursuance of the first detention order made against any person under this Act and confirmed under section 10, he may be detained for a period which may extend up to six months from the date of the detention and in pursuance of such subsequent detention order made against such person, he may be detained for a period which may extend up to maximum of one year.”_ 4. A bare perusal of Section 12 of KAA(P)A would reveal that the said provision only provides the maximum permissible period of preventive detention. Obviously, it is six months from the date of detention, in the case of first detention order against anyone and if the detention is to be made in pursuance of subsequent detention order, of the same person the maximum permissible period is one year. The short question is whether the failure to mention a period of detention in the order of detention would vitiate the order **WP(Crl.).No.350 OF 2019** **6** of detention. That question is no longer _res integra._ In the decision in _**T. Devaki v. Government of Tamil Nadu & Others** [(1990) 2 SCC 456],_ the Hon'ble Apex Court held that non-mentioning of the period of detention in the order of detention could not vitiate the order of detention. A Full Bench decision of this Court in _**Bose v. Secretary to Government** [2010 (2) KLT 325 (F.B.)]_ would also answer the question. Paragraph 7 of the said decision is relevant in this context and it reads thus:- _“7. In view of the precedents by way of the decision of the Apex Court referred to above, in our view, the decision of the Division Bench of this Court in the case of Anitha Bruse is just and proper conclusion and as such we answer the reference as follows: Nonspecification of the period of detention in the order of detention passed under S.3(1) as also the order of approval under S.3(3) of KAAPA does not vitiate the order of detention.”_ Thus, it is obvious that the Full Bench in **Bose's** case, relying on the decisions of the Hon'ble Apex Court in _**Makhan Singh v. State of Punjab** [AIR 1952 SC 27]_ and _**T. Devaki v. State**_ **WP(Crl.).No.350 OF 2019** **7** _**of Tamil Nadu** (supra)_ held that non-specification of the period of detention in the order of detention passed under Section 3(1) as also in the order of approval under Section 3(3) of KAA(P)A would not vitiate the order of detention. In view of the said exposition of law by the Hon'ble Apex Court and the Full Bench of this Court the fact that the period is not specifically mentioned in Ext.P1 order of detention or in the order of approval would not and could not vitiate the same. Having answered the question as aforesaid we will now consider the other contentions raised by the petitioner. 5. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 6. The main contention of the petitioner is that Ext.P3 order of approval under Section 3(3) of KAA(P)A was passed beyond the period therefor, viz., within 12 days from the date of detention. This contention is adopted in the wake of the fact that order of detention is dated 4.6.2019 and Ext.P3, which is the order of approval under Section 3(3) of KAA(P)A, was passed only on 25.6.2019. For the purpose of **WP(Crl.).No.350 OF 2019** **8** appreciating the said contention it is only profitable to refer to Section 3(3) of KAAPA and it reads thus:- “ _3. Power to make orders for detaining Known Goondas and Known Rowdies.-_ _…............._ _(3) When any order is made under this section by the authorised officer under subsection (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.”_ 7. A bare perusal of Section 3(3) of KAA(P)A would reveal that an order of detention would remain in force for 12 days and for the purpose of counting the said period of 12 days from the date of detention public holidays are to be **WP(Crl.).No.350 OF 2019** **9** excluded. In this case, actually, Ext.P1 order was executed and the petitioner was detained only on 12.6.2019. In this context it is to be noted that the contention of the petitioner is that the detenu was arrested on 10.6.2019 at 7 p.m. But, we perused the records and they would reveal that the petitioner was arrested only on 11.6.2019 at 2 p.m. When that be so, the said contention of the petitioner cannot hold good. Even otherwise, for the purpose of Section 3(1) of KAA(P)A, as noticed hereinbefore, the crucial date is the date of detention and not the date of order of detention. When there can be no dispute regarding the fact that the detenu was detained only on 12.6.2019, the 12 days' period provided under Section 3(3) of KAA(P)A could be counted only from 12.6.2019. In the contextual situation, it is also relevant to refer to Section 8 of the Kerala Interpretation and General Clauses Act, 1135 (for short 'the Act'). It reads thus:- _“(8) “covenant” shall mean the covenant entered into by the Rulers of Travancore and Cochin for the formation of the United State of Travancore and Cochin;”_ **WP(Crl.).No.350 OF 2019** **10** 8. There can be doubt with respect to the position that Section 8 of the Act is applicable for the purpose of computing the period in terms of the provisions under Section 3(3) of KAA(P)A. As noticed hereinbefore, Section 3(3) of KAA(P)A provides that no order shall be remained 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. Thus, it is evident that for the purpose of counting the period of 12 days, going by Section 3(3), after excluding the public holidays, 12 days have to be computed from the date of detention of such Known Goonda or Known Rowdy. In the case on hand, the fact is that in between the period of 12.06.2019, the date of detention in execution of Ext.P1 order and 25.06.2019, the date on which Ext.P1 was approved as per Ext.P3, there were two holidays, viz. on **WP(Crl.).No.350 OF 2019** **11** 16.06.2019 and 23.06.2019, as they being Sundays. In the said circumstances, even without looking into the provisions under Section 8 of the Act, it can safely be held that the order of approval was passed within the period of 12 days, computed strictly in terms of the provisions under Section 3(3) of KAA(P)A. Application of Section 8 of the Act would bring Ext.P3 order well within the time beyond any shadow of doubt. In short, the contention of the petitioner that the order of detention was passed beyond 12 days in terms of Section 3(3) of KAA(P)A cannot be upheld. 9. Now, we will consider the contention of the petitioner that the live link was snapped owing to the unexplained delay of four months from the date of the last prejudicial activity. The last prejudicial activity in the case on hand allegedly occurred on 10.02.2019 and it resulted in registration of FIR in Crime No.418/2019 at Cherthala Police Station under Sections 143, 144, 147, 148, 149, 447, 506(ii), 448, 436, 427 and 212 read with Section 149 IPC and Sections 3(a) and 4(a) of the Explosive Substances Act, 1908 **WP(Crl.).No.350 OF 2019** **12** and Section 27 of the Arms Act. To support the said contention, the learned counsel for the petitioner relied on the decisions of this Court in _**Jimesh Jose v. State of Kerala** [2013 (1) KHC 49]_ and in _**Rahila Nazeer v. State of Kerala** [2016 (2) KLT 838]_ . At the same time, to resist the said contention, the learned Public Prosecutor relied on the decisions in _**Vishnuja v. State of Kerala and others** [2018 (1) KHC 933]_ and also in _**Rahila Nazeer** (supra)_ . Thus, it is evident that both sides relied on the decision in _**Rahila Nazeer** (supra)_ . A careful scanning of the decisions cited on behalf of the petitioner and also by the learned Public Prosecutor would reveal that in essence, there is no cleavage of opinion in those decisions. Going by all those decisions, the mere fact that there occurred delay taking into account the date of the last prejudicial activity and the date of order of the detention by itself would not vitiate the order of detention and the relevant question is whether the delay has been satisfactorily explained. **WP(Crl.).No.350 OF 2019** **13** 10. The decision in _**Jimesh Jose** (supra)_ was considered in _**Rahila Nazeer** (supra)_ and as noticed earlier, both sides relied on _**Rahila Nazeer** (supra)._ After hearing both sides based on the said decision, we think that it is not necessary to consider the submission made based on _**Jimesh Jose** (supra)_ separately and it will be suffice if paragraph 12 of _**Rahila Nazeer** (supra)_ , which is very much pertinent in regard to the question posed, is considered. It is only befitting to extract the same and it reads thus:- _“It is not the delay alone that matters. If the delay in passing the order of detention is unexplained and inordinate, it could be said that the live link between the prejudicial activity and the order of detention is snapped. It is not a mechanical test that can be applied in the matter of ascertaining whether the live link is snapped. If the delay is satisfactorily explained, it cannot be held that the live fink is snapped. The KAAPA Act does not provide that if the period of six months from the last prejudicial activity expires, no order of detention can be passed. The legislature in its wisdom did not think that an order of detention_ **WP(Crl.).No.350 OF 2019** **14** _cannot be passed after the expiry of the period for which a person can be detained under Section 3, reckoning the period from the date of the last prejudicial activity to the order of detention. The period of detention under Section 3 as such cannot be a determining factor to assess whether there is inordinate and unexplained delay. The facts and circumstances of the case are relevant in each case. Reasons may be varied as to why the order of detention is passed after several months of the date of the last prejudicial activity. If the person concerned is in judicial custody and there is no likelihood of his being released shortly, the detaining authority may stay its hands for a short while and think of passing an order of detention subsequent to the release of the person concerned. It is not necessary that the person concerned should commit another crime after the expiry of his judicial custody (in the crimes already registered and pending investigation) in order to enable the detaining authority to pass an order of detention. In short, the facts situation in each case makes it relevant the question whether the delay is inordinate so as to vitiate the order of detention on the ground of lack of live nexus between the prejudicial activity and the order of detention.”_ (Emphasis added) **WP(Crl.).No.350 OF 2019** **15** 11. In _**Vishnuja** (supra)_ relied on by the learned Public Prosecutor, virtually, the afore-extracted paragraph from the decision in _**Rahila Nazeer** (supra)_ was quoted with agreement and ultimately, it was held that the so-called delay of three months occasioned after petitioner's husband was released from jail on bail would not be a sufficient ground to release him or to question the order of detention. 12. In that view of the position of law thus settled, we will consider the question whether the delay of about four months occurred in between the last prejudicial activity and the date of order of detention, in the case on hand, is explained satisfactorily by the detaining authority. The learned Public Prosecutor drew our attention, in that regard, to paragraph 25 of Ext.P1 order to establish that in the order of detention itself, the reasons as to why it was passed after a lapse of about four months from the date of the last prejudicial activity have been specifically mentioned. It reads thus:- **WP(Crl.).No.350 OF 2019** **16** “25. ഈ കകേസസിൽ അവസസാന നസിയമ വസിരുദ പ്രവ്രുതസി നടന്നതത് 10.02.2019 തതീയതസിയസിലസാണത്. ജസിലസാ കപസാലതീസത് ചതീഫത് 23.03.2019 തതീയതസിയസിലല ഡസി-19356/2019 എ നമ്പർ കേതത് പ്രകേസാരരം KAA(P)A പ്രകേസാരരം നടപടസി സസതീകേരസിക്കുന്നതസിനത് ശുപസാർശ റസികപസാർടത് 30.03.2019 തതീയതസിയസിൽ ഈ കേസാരരസാലയതസിൽ പ്രകതരകേ ദൂതൻ മുകഖേന റസികപസാർടത് കനരസിടത് ഹസാജരസാകസിയസിരുന്നതസാണത്. ടസി റസികപസാർടരം അനുബന്ധ റസികസാർഡുകേളരം വസിശദമസായസി പരസികശസാധസിച്ചതസിനത് കശഷരം, എതസിർകേകസിയുലട കകേസത് വസിവരങ്ങൾ സരംബന്ധസിച്ചത് കൂടുതൽ വസിവരങ്ങൾ ജസിലസാ കപസാലതീസസിൽ നസിനരം ലഭരമസാക്കുന്നതസിനത് 27.04.2019 തതീയതസി ജസിലസാ മജസികസ്ട്രേറസിലന കേസാരരസാലയതസിൽ നസിനരം ജസിലസാ കപസാലതീസത് കമധസാവസിയത് നസിർകദ്ദേശരം നൽകേസിയസിരുന്നതുമസാണത്. കകേസത് വസിവരങ്ങൾ സരംബന്ധസിച്ചത് പുതുകസിയ വസിവരങ്ങൾ ഉൾലപടുതസിയ റസികപസാർടത് 07.05.2019 തതീയതസി ജസിലസാ കപസാലതീസത് ചതീഫത് ഹസാജരസാകസിയസിടള്ളതുമസാണത്. 2019 മസാർച്ചത് മസാസതസിൽ കലസാകേത് സഭ ഇലകൻ പ്രഖേരസാപസിക് യുരം 23.04.2019 തതീയതസിയസിൽ കവസാലടടുപത് നടന്ന നസിശ്ചയസിച്ചസിരുന്ന ഇലകൻ സരംബന്ധമസായ കജസാലസികേളസിൽ ജസിലസാ മജസികസ്ട്രേറസിലന കേസാരരസാലയതസിലല ബന്ധലപട ലസകൻ മുഴുവനുരം, കൂടസാലത ജസിലസാ കപസാലതീസത് സരംവസിധസാനങ്ങളരം വരസാപ്രുതരസായസിരുന്നതുമസാണത്. തന്മൂലമസാണത് ഈ ഉതരവത് പുറലപടുവസിക്കുന്നതസിനത് 4 മസാസകതസാളരം കേസാലതസാമസരം ഉണസായസിടള്ളതത്. കകേസത് സരംബന്ധസിച്ചത് വസിശദമസായസി പരസികശസാധസിച്ചത് വസ്തുനസിഷ്ഠവരം ആത്മനസിഷ്ഠവമസായസി ഈ കബസാധരലപടതസിനത് കശഷമസാണത് ഉതരവത് പുറലപടുവസിക്കുന്നതത്. ജസിലസാ ഇലകൻ ഓഫതീസർ കൂടസിയസായ ജസിലസാ മജസികസ്ട്രേറസിലന കേസാരരസാലയതസിലലയുരം ഇലകകനസാടനുബന്ധസിച്ചത് ജസിലസാ കപസാലതീസത് സരംവസിധസാനതസിലലയുരം ഓഫതീസത് നടപടസി ക്രമങ്ങളസിലുണസായ ഈ കേസാലതസാമസരം, ലപസാതുസമസാധസാനലത തകേർക്കുന്ന **WP(Crl.).No.350 OF 2019** **17** എതസിർകേഷസിലയതസിലരയുള്ള ഉതരവത് പുറലപടുവസിക്കുന്നതസിനത് തടസ്സമസാകേരുലതന്നത് എനസികത് കബസാധരലപടസിടള്ളതസാണത്.” 13. Paragraph 25 as extracted above would reveal that the fact that the last prejudicial activity had taken place on 10.02.2019 was taken note of by the detaining authority and thereupon, the District Police Chief, as per his first report dated 23.03.2019, recommended or virtually sponsored for initiation of action under KAA(P)A. In that regard, a subsequent report was submitted by the District Police Chief on 07.05.2019. The above extracted portion would reveal that upon receipt of the first report, for getting further details from the office of the District Police Chief, instruction was issued on 27.04.2019. In fact, it is upon receiving the said instruction that the second report dated 07.05.2019 was submitted. In fact, just prior to the submission of the first report, election to the Lok Sabha was declared on 10.03.2019. Going by the election notification, 23.04.2019 was fixed as the date of election and in fact, election was conducted on that day itself. All District Collectors got pivotal **WP(Crl.).No.350 OF 2019** **18** roles to play in the matter of conduct of election to Lok Sabha. The learned counsel appearing for the petitioner submitted that despite such busy schedule, if the District Magistrate can issue instruction on 24.07.2019 to get further details from the District Police Chief, there is absolutely no justification for contending that an order could not have been passed immediately on receipt of such instruction. We afraid the said contention cannot be accepted. The fact that before the receipt of even the first report dated 23.03.2019, election to the Lok Sabha was declared. Despite the busy schedule of Lok Sabha Election, the 2[nd] respondent found time to go through the first report and thereafter, he called for further details and obtained the required materials from the office of the District Police Chief on 07.05.2019. The order in question was passed on 04.06.2019. There can be no doubt that after obtaining the report and materials, the 2[nd] respondent, in his capacity as the detaining authority, had to apply his mind in the evaluation and study of the matter for passing order of detention. We do not find any reason for not **WP(Crl.).No.350 OF 2019** **19** accepting the statement in that regard in Ext.P1 and the same given as explanation in the counter affidavit filed by him. In such circumstances and in view of the explanation, we are not inclined to accept the contention of the petitioner that there occurred snapping of the live link between the alleged last prejudicial activity and the order of detention. 14. Now, we will consider the other contentions. It is also to be noted that proceedings under KAA(P)A was recommended, rather the sponsoring authority requested for initiation of such action under KAA(P)A taking into account the fact that the detenu had involved in nine cases. Ext.P1 would reveal that the sponsoring authority gave the details of nine crimes registered against the detenu and the detaining authority took them into consideration. 15. The learned counsel for the petitioner submitted that Crime No.1341/2016 registered at Cherthala Police Station under Sections 341 and 294(b) IPC ought not have been taken into account for the reason that the said allegedly committed offences are not mentioned in Clause (t) of **WP(Crl.).No.350 OF 2019** **20** Section 2(t) of KAA(P)A. On a careful perusal of the provisions under Section 3 of KAA(P)A, wherein the list of offences under the Indian Penal Code falling under Clause (t) of Section 2 are given to bring a person under the sweep of Section 2(p)(iii) of KAA(P)A, would reveal that Sections 341 and 294(b) IPC are not included therein. When that be the circumstances, definitely, the learned counsel for the petitioner is justified in contending that Crime No.1341/2016 registered for offences under Sections 341 and 294(b) IPC also ought not have been included in the list. The question is whether Ext.P1 order is vitiated owing to non-consideration of the question whether Crime No.1341/2016 registered at Cherthala Police Station for offences allegedly committed under Sections 341 and 294(b) IPC was available for objective satisfaction? In that regard, whether the question those offences are mentioned in the list of offences under the Indian Penal Code falling under Clause (t) of Section 2 so as to bring a person under the sweep of Section 2(p)(iii) of KAA(P)A, as also bound to be considered? Obviously, Crime **WP(Crl.).No.350 OF 2019** **21** No.880/2016 was not at all taken into account for the purpose of passing Ext.P1 order. We have already found that Sections 341 and 294(b) IPC are not mentioned in the aforesaid list. The learned counsel would further contend that there are other instances as well revealing nonapplication of mind by the detaining authority while passing Ext.P1. This contention is founded on the fact revealed from Ext.P1, more particularly paragraph 5 therein, that Crime No.1883/2016 of Cherthala Police Station was taken into account and in troth, no crime with such a number was registered against the petitioner. At any rate, there is no such case for the sponsoring authority, it is further contended. It is a fact revealed from Ext.P1 itself and Ext.P2 that no such crime with FIR No.1883/2016 of Cherthala Police was forwarded by the sponsoring authority to the detaining authority. Hence, it can only be a mistake. In fact, a perusal of the records would also reveal that no such crime was placed before the detaining authority for consideration. In this context, the learned Public Prosecutor drew our attention **WP(Crl.).No.350 OF 2019** **22** to paragraphs 15 to 24 of Ext.P1. They would clearly go to show that the detaining authority had actually considered only the following crimes registered at Cherthala/Kuthiyathodu Police Stations:- - (1) Crime No.2446/2013 of Cherthala Police Station - (2) Crime No.1426/2015 of Cherthala Police Station - (3) Crime No.466/2016 of Cherthala Police Station - (4) Crime No.469/2016 of Cherthala Police Station - (5) Crime No.471/2016 of Cherthala Police Station - (6) Crime No.1341/2016 of Cherthala Police Station - (7) Crime No.880/2016 of Kuthiyathodu Police Station - (8) Crime No.302/2016 of Cherthala Police Station - (9) Crime No.418/2019 of Cherthala Police Station Thus, recitals in paragraphs 15 to 24 of Ext.P1 itself would reveal that Crime No.1883/2016 was not at all mentioned and considered by the detaining authority and it is only a mistake that resulted in incorporation of such a crime number in Ext.P1 order. In such circumstances, the contention in that **WP(Crl.).No.350 OF 2019** **23** regard, referred hereinbefore, raised by the learned counsel for the petitioner is bereft of any merit. 16. It is further contended by the learned counsel for the petitioner that it is also contended that in the list of cases forwarded by the sponsoring authority, no crime with No.780/2016 registered at Kuthiyathodu Police Station was included. However, Crime with No.780/2016 registered at Kuthiyathodu Police Station was also stated to have been taken into account by the detaining authority for passing Ext.P1 order. 17. The learned Public Prosecutor would contend that a careful scanning of Ext.P1 would reveal that in paragraph 5, Crime No.780/2016 of Kuthiyathodu Police Station was mistakenly shown due to clerical error instead of Crime No.880/2016 of Kuthiyathodu Police Station and this fact is evident from paragraph 21 of Ext.P1 order. We have gone through paragraph 21 of Ext.P1. It would reveal that Crime No.880/2016 registered at Kuthiyathodu Police Station was the crime which was taken into account. Since the fact that it **WP(Crl.).No.350 OF 2019** **24** is nothing but an error evident from the order itself and a scanning of the order would reveal that actually what was taken into account by the detaining authority is the crime with No.880/2016 registered at Kuthiyathodu Police Station, the mere fact that the number was mistakenly shown in paragraph 5 owing to clerical mistake also cannot be a reason for treating Ext.P1 order as vitiated. Section 2(p)(iii) is worthy for reference in this context. It reads thus:- _“2(p) 'known rowdy' means any person, who had been, by reason of acts done within the previous seven years as calculated from the date of the order imposing any restriction or detention under this Act,-_ _(i) …........_ _(ii) …........_ _(iii) found, on investigation or enquiry by a competent police officer or other authority, on complaints initiated by persons other than police officers, in three separate instances not forming part of the same transaction to have committed any offence mentioned in clause (t) of Section 2.”_ **WP(Crl.).No.350 OF 2019** **25** When more than the minimum number of cases are still there to arrive at a subjective satisfaction for passing an order of detention, the fact that Crime No.1341/2016 of Cherthala Police Station registered under Sections 341 and 294(b) IPC was not legally available to be considered in view of Section 2(p)(iii) cannot be a reason to hold that Ext.P1 order is vitiated by its inclusion and consideration. In this context, there is a decision of a Division Bench of this Court in _**Sathyavathi v. State of Kerala and others**_ [2014 (4) KHC 576]. Even if there are certain grounds which disentitled counting of some cases which lead to detention order, when allegations in other three cases clearly disclose sufficient materials, detention order cannot be held as invalid, it was held therein. The decision in _**Jayalekshmi v. State of Kerala and others** [2015 (4) KLT 942]_ would assume relevance. Paragraphs 18 and 19 of the decision are very much relevant and they read thus:- _“18. To classify a person as 'known rowdy', the legal requirement is that the person_ **WP(Crl.).No.350 OF 2019** **26** _concerned was found to have committed the offence mentioned in clause (t) of Section 2 in three separate instances. The objective test for classifying a person as 'known rowdy' is the - availability of any one of the sub clauses of clause (p) of Section 2. Even if the person concerned is involved in several crimes and it is found that some of the crimes do not come within the category of clause (p) of Section 2 and the - cases satisfying the sub clauses are sufficient to pass the objective test, the order of detention can be sustained. It cannot be said that all the cases in which the detenu is involved would constitute a single ground and if one of the cases fails, the whole grounds fail. Section 7(4) of the KAAPA provides thus:_ _"7. Grounds of order of detention to be disclosed.-xxxx xxxx xxxx_ _(4) The order of detention shall not be deemed to be invalid merely because one or more of the facts or circumstances cited among the grounds are vague, nonexistent, irrelevant or invalid for any reason whatsoever and such order shall be deemed to have been made by the Government or the Authorised Officer after having been_ **WP(Crl.).No.350 OF 2019** **27** _satisfied about the need for detention with reference to the remaining facts and circumstances, provided that the minimum conditions for being classified as a known goonda or known rowdy are satisfied."_ _19. Under the KAAPA, even if one or more of the facts or circumstances cited among the grounds - are vague, non existent, irrelevant or invalid for any reason whatsoever, that would not make the order of detention invalid and it shall be deemed that the detaining authority made the order of detention after having been satisfied about the need for detention with reference to the remaining facts and circumstances. The only restriction placed under Section 7(4) of the KAAPA is that the minimum conditions for classifying the person concerned as a 'known goonda' or 'known rowdy' should exist. Even if it is found that one or more of the cases on the basis of which the detenu is classified as a 'known goonda' or 'known rowdy' are found to be not within the purview of cases coming under clauses (o) or (p), the order of detention would not lapse or become irrelevant or stale or improper, provided sufficient number of cases to satisfy the definition of 'known goonda' or 'known_ **WP(Crl.).No.350 OF 2019** **28** _rowdy', as the case may be, are still available against the detenu concerned. We are not inclined to accept the contention put forward by the learned counsel for the petitioner in this regard.”_ (Underline supplied) 18. We are in perfect agreement with the conclusions/findings in _**Jayalekshmi** (supra)_ made with reference to Section 7(A) of KAA(P)A. A perusal of paragraph 5 of Ext.P1 would reveal that involvement of the detenu in five cases was referred to thereunder solely for the purpose of concluding the fact that the detenu was required to execute a bond under Section 107 Cr.P.C., was not sufficient to prevent him from indulging in anti-social activities. The learned counsel appearing for the petitioner would submit that a perusal of Ext.P2, which contains the report of the sponsoring authority, would reveal that without any application of mind, the detaining authority simply copied the details of cases mentioned in the report of the sponsoring authority. The relevant portion in paragraph 5 of Ext.P1 **WP(Crl.).No.350 OF 2019** **29** ## reads thus:- |“........<br>നടപടസകയസ|.എനസൽ<br>ടസ<br>കബസണസകനസ<br>മൻകരതൽ|.എനസൽ<br>ടസ<br>കബസണസകനസ<br>മൻകരതൽ| |---|---|---| ||<br> <br> <br><br>യസലതസര വസലയര കൽപസകസലത ടസയസൻ|| |<br>തടർനര<br>കചർതല<br>പസ.എസ.<br>കക<br>1341/2016,<br>1883/2016, 302/2019, 418/2019 കതസയകതസട പസ.എസ.<br>കക<br>780/2016<br> എനത<br>5<br>കകസകളസൽ<br>ഉൾലപടസടളതസലണനര<br>,<br>ടസയസൻ||| |||<br><br>,<br>ടസയസൻ| |അകമപവർതനങളസൽ<br>തടർനര<br>ഏർലപട||| |<br> <br><br>വരനതസനസൽ<br>107<br>സസ<br>.<br>ആർ<br>.<br>പസ<br>.<br>സസ<br>.<br>പകസരമളകകസര||| |<br><br><br><br> <br>അനബന<br>നടപടസകളര<br>ടസയസലന<br>കമൽവസവരസച||| |<br> <br><br><br>പകസരമളഅകമപവർതനങളസൽ നസനര ടസയസലന||| |<br>പസനസരസപസകസൻ പരരസപമല എനര ഞസൻ പരസകശസധസച||| |<br>കബസധരലപടസടളതസണ<br>.”||| (Underline supplied) Thus, a scrutiny of the afore-extracted recital from paragraph 5 of Ext.P1 would reveal that the consideration was whether execution of a bond by the detenu under Section 107 Cr.P.C. was sufficient to prevent him from indulging in further antisocial activities. It is to arrive at a finding on that the detaining authority referred to the crimes allegedly committed by him subsequent to the execution of the bond. Thus, it is a fact that if one or two cases could not have been taken into account or non-existent would not make the conclusion **WP(Crl.).No.350 OF 2019** **30** arrived at that the execution of the bond under Section 107 Cr.P.C. before the Sub Divisional Magistrate, Alappuzha was not sufficient to prevent the detenu from indulging in antisocial activities, incorrect or invalid as the fact is that crimes of serious nature were registered against him even after its execution. 19. Paragraphs 15 to 24 of the impugned Ext.P1 order would reveal that more than the minimum number of cases required statutorily for holding a persons as known rowdy under Section 2(p)(iii) of the Act was taken into account and the mere fact that Crime No.1341/2016 registered under Section 341 and 294(b) IPC were also wrongly taken into account could not be a reason to deem Ext.P1 order invalid in the light of the provisions under Section 7(4) of the Act. The narration of facts made hereinbefore would certainly reveal that instead of Crime No.880/2016 of Kuthiyathode Police Station at one part of the order the number was wrongly taken as 780/2016. But, at the same time, if Ext.P1 read as whole they would reveal that what was actually taken **WP(Crl.).No.350 OF 2019** **31** into account is Crime No.880/2016 of Kuthiyathode Police Station. It would also reveal that Crime No.1341/2016 registered under Section 341 and 294(b) of IPC could not have been taken into account for the fact that those offences would not attract under the provisions of Section 2(p)(iii) of the Act. We have already dealt with the objection of the petitioner in regard to the cases with Crime Nos.1341/2016, 1883/2016 and 780/2016. Thus, despite all the contentions raised by the petitioner the facts reveal from relevant materials on record, which was taken into account by the detaining authority is that even after execution of the bond under Section 107 Cr.P.C before the Sub Divisional Magistrate, Alappuzha against the detenu cases involving serious criminal, anti-social activities which would attract the provisions under section 2(p)(iii) of the Act, were registered. The question to be considered and rightfully considered by the detaining authority was whether the detentu after execution of the bond under Section 107 Cr.P.C had involved in anti-social activities and whether execution of bond under **WP(Crl.).No.350 OF 2019** **32** Section 107 Cr.P.C was sufficient to prevent him from indulging any anti-social activities. Hence, the contention raised based on paragraph 5 of Ext.P1 cannot invalidate the said order. 20. The learned counsel appearing for the petitioner raised another contention in a bid to establish that the impugned Ext.P1 order is vitiated. It is contended that while considering the fact that the detenu had executed a bond under Section 107 Cr.P.C. and thereafter, involved in anti-social activities, which resulted in registration of different crimes against him, the detaining authority had lost the sight of the fact that the bond itself was incomplete and therefore, there was no execution in the eye of law. The reason for raising such a contention that the period for which the said bond would be valid was not specifically mentioned in the bond, according to the learned counsel. It is further contended that this crucial aspect was not at all taken into account by the detaining authority while passing Ext.P1 order and, therefore, the order is vitiated by the non-application of **WP(Crl.).No.350 OF 2019** **33** mind. A perusal of paragraph 5 of Ext.P1 itself would reveal that the detenu was called upon to execute a bond in MC.88/2016 under Section 107 Cr.P.C. in a case registered at Cherthala Police Station as Crime No.744/2016, before the Sub Divisional Magistrate, Alappuzha. The factum of execution of a bond under Section 107 Cr.P.C. in MC No.88/2016 is not in dispute, in fact, it is indisputable. The date on which it was executed is clearly discernible from the said document and a copy of the same was also served on the detenu and the petitioner has produced the same in this writ petition. In that context, it is relevant to refer to Section 107 Cr.P.C.:- ## _“_ _**Section 107: Security for keeping the peace in other cases**_ _(1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity and is of opinion that_ **WP(Crl.).No.350 OF 2019** **34** _there is sufficient ground for proceeding, he may in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond [with or without sureties] for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit._ _(2) Proceeding under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act as aforesaid beyond such jurisdiction.”_ A bare perusal of the said provision would reveal that an Executive Magistrate could require a person to execute a bond, with or without sureties, for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit. Before dealing with the contention any further, we think it only appropriate to state that outcome of the consideration on this issue by itself cannot invalidate Ext.P1 order if the objective **WP(Crl.).No.350 OF 2019** **35** and subjective considerations which resulted in Ext.P1 are otherwise in order. 21. The distinction between the purpose of an order of detention under Section 3 of KAA(P)A and an order passed under Section 107 Cr.P.C. has to be looked into in this context. The distinction between the two proceedings has been considered by a Division Bench of this Court in _**Thejas v. Inspector General of Police, Kannur** [2015 (3) KLT 1]_ . It was held that under KAA(P)A thrust is on prevention of anti-social activities and under Section 107 Cr.P.C. the thrust is to keep peace and tranquility and to avoid breach of peace or disturbance of public tranquility. In a case where proceedings under Section 107 Cr.P.C. are already taken against the person concerned, for passing further orders of preventive detention under Section 3 or an externment order under Section 15, it is not necessary that another case should be registered after initiation of proceedings under Section 107 Cr.P.C., it was further held therein. The factum of execution of the bond to keep peace under Section 107 **WP(Crl.).No.350 OF 2019** **36** Cr.P.C. by the detenu is not disputed, rather admitted, by the petitioner as can be seen from Ground No.1 in the writ petition. The contention is that it was not violated. It was executed on 23[rd] April, 2016. In the decision in _**Mithya v. State of Rajasthan** [1987 Crl.L.J. 1042 (Raj)]_ , the High Court of Rajasthan held that for keeping peace the maximum period for obtaining security is one year and it shall commence from the date on which the Magistrate takes cognizance and commences the proceedings. The contention of the petitioner is that the bond for keeping peace was for the period of one year and the fact that no crime was registered against the detenu for the year 2017 and 2018, which is a material fact, was omitted to be taken into consideration by the detaining authority. We are afraid the said contention cannot be upheld in the light of _**Thejas** (supra)_ . It is to be noted that the proceedings initiated against the detenu is not one for forfeiture of the bond. That apart, there is no case for the petitioner that no crime was registered against the detenu since the execution of the **WP(Crl.).No.350 OF 2019** **37** bond. In fact, Ext.P1 itself would reveal that in three separate instances he was allegedly indulged in commission of offences mentioned in Clause (t) of Section 2 of KAA(P)A. In Crime No.302/2019 of Cherthala Police Station, he allegedly committed the offences on 30.01.2019 and in Crime No.418/2019, he allegedly committed the offences on 10.02.2019. They along with other cases registered within the period of seven years calculated from the date of Ext.P1 order would justify the initiation proceedings under KAA(P)A. In such circumstances, we do not think it necessary to consider the further contentions of the petitioner based on the irregularities in the bond executed by the detenu. 22. Now, we will consider the challenge against the objective and subjective considerations that culminated in Ext.P1 order. Before considering the said question, it is only profitable to refer to the following decisions:- 23. In the decision in _**Abdul Wahab v. State of Kerala** [2017 (3) KLT 548]_ , a Full Bench of this Court held that satisfaction has to be recorded by detaining authority at **WP(Crl.).No.350 OF 2019** **38** two levels; firstly, with regard to the 'objective satisfaction' as to whether the detenu is a 'known goonda' or 'known rowdy' and secondly, the 'subjective satisfaction' as to whether he is engaged in anti-social activities and whether it is necessary to prevent him in pursuing such acts. 24. In the decision in _**Union of India and others v. Aravind Shergill and another** [AIR 2000 SC 2924]_ , the Hon'ble Apex Court was dealing with a case under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ('COFEPOSA Act') held that:- _“The language of Section 3 clearly indicates that the responsibility for making a detention order rests upon the detaining authority who alone is entrusted with the duty in that regard and it will be a serious derogation from that responsibility if the court substitutes its judgment for the satisfaction of that authority on an investigation undertaken regarding sufficiency of the materials on which such satisfaction was grounded. The court can only examine the grounds disclosed by the Government in order to see whether they are relevant to the object which_ **WP(Crl.).No.350 OF 2019** **39** _the legislation has in view, that is, to prevent the detenu from engaging in smuggling activity. The said satisfaction is subjective in nature and such a satisfaction, if based on relevant grounds, cannot be stated to be invalid. The concerned authorities have to take note of the various facts including the fact that this was a solitary incident in the case of the detenu and that he had been granted bail earlier in respect of which the application for cancellation of the same was made but was rejected by the court. In this case, there has been due application of mind by the concerned authority to that aspect of the matter as we have indicated in the course of narration of facts. Therefore, the view taken by the High Court in the circumstances of the case cannot be sustained.”_ The decision of the Apex Court in _**Subramanian v. State of Tamil Nadu and another** [2012 (4) SCC 699]_ is also noteworthy in this context. It was a case under Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 **WP(Crl.).No.350 OF 2019** **40** (T.N.). The ground case related to an occurrence on 18.07.2011. On that day, going by the complaint based which the crime in question was registered, the detenu armed with aruval (sickle) along with his associates apart from threatening the de facto complainant caused damage to the STD Booth by damaging the glasses and chairs. Defacto complainant was slapped and told that he would be done to death. The general public gathered on hearing his hue and cry were also threatened by saying “if anyone turns up as witness, I will kill them”. Immediately, the nearby shopkeepers closed their shops out of fear and auto drivers took their autos from the stand and left the place. Out of the three other cases in which the detenu involved, two cases occurred in the year 2010 and one case in the year 2008. Based on such instances, the detenu was as 'Goonda' under Section 2(f) of the aforesaid Act and ordered to be detained preventively. Paragraph 11 of the said decision is relevant in the contextual situation and it runs as follows:- **WP(Crl.).No.350 OF 2019** **41** _“11. It is well settled that the court does not interfere with the subjective satisfaction reached by the Detaining Authority except in exceptional and extremely limited grounds. The court cannot substitute its own opinion for that of the Detaining Authority when the grounds of detention are precise, pertinent, proximate and relevant, that sufficiency of grounds is not for the Court but for the Detaining Authority for the formation of subjective satisfaction that the detention of a person with a view to preventing him from acting in any manner prejudicial to public order is required and that such satisfaction is subjective and not objective. The object of the law of preventive detention is not punitive but only preventive and further that the action of the executive in detaining a person being only precautionary, normally, the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct in an exhaustive manner. The satisfaction of the Detaining Authority, therefore, is considered to be of primary importance with certain latitude in the exercise of its discretion.”_ 25. The scheme of KAA(P)A and the decisions referred (supra) would reveal that a valid order of detention **WP(Crl.).No.350 OF 2019** **42** under Section 3(1) thereunder can be passed only after arriving at the threshold the initial 'objective satisfaction' and thereafter, on applying mind arriving at a conclusion regarding the necessity to prevent him from committing any anti-social activity. The objective satisfaction to be arrived at is as to whether the person sought to be proceeded against is a 'known goonda' or 'known rowdy'. Needless to say that the necessity to pass on to the second level of satisfaction viz., 'subjective satisfaction' is required only if the 'initial satisfaction' arrived at is to the effect that the person sought to be proceeded against is either a 'known goonda' or a 'known rowdy'. We will now consider whether the detaining authority arrived at the twin satisfaction before passing order of preventive detention by scanning Ext.P1, within the limits of the power of judicial review available under Article 226 of the Constitution of India. It will not be inappropriate in this context to refer to the Division Bench decision of this Court in _**Abdul Razack A.A. v. State of Kerala and others** [MANU/KE/1411/2015: ILR 2015 (4) Kerala 18]._ It was held **WP(Crl.).No.350 OF 2019** **43** therein that the proceedings under Article 226 of the Constitution of India, the High Court could not sit the appeal over the decision taken by the detaining authority as to whether the preventive detention is necessary or warranted, based on the materials placed before the detaining authority. However, it was further held that in case the entertainment of subjective satisfaction by the detaining authority is vitiated by malafides or total absence of materials or by materials that are to be legally eschewed, the power of judicial review could be invoked and the order of detention based on such subjective satisfaction could be set aside. 26. In this regard, the learned counsel for the petitioner submitted that in respect of Crime No.880/2016 of Kuthiyathodu Police Station, the detaining authority himself held that since the sponsoring authority failed to produce records proving the commission of the offences alleged thereunder, the said case could not be taken into consideration for the purpose of passing order under Section 3(1) of KAA(P)A. We have already held, relying on the **WP(Crl.).No.350 OF 2019** **44** decisions in _**Jayalekshmi** (supra) and_ _**Sathyavathi** (supra)_ and Section 7(A) of KAA(P)A, that even when certain grounds which disentitled counting of some cases which led to detention order, if allegations in other three cases clearly disclose sufficient materials, detention order could not be held as invalid. That apart, this contention can be considered in another angle as well. Ext.P1 itself would reveal that in regard to Crime No.880/2016 of Kuthiyathodu Police Station the sponsoring authority had forwarded copies of the F.I.R., statement, charge sheet to the detaining authority and they were available before the detaining authority and they were also perused. However, that case was not reckoned assigning the reason that records proving the commission of the offences by the detenu were not produced by the police authorities. It is also stated in Ext.P1 in the F.I.R. registered in respect of the said crime the name of the detenu was not mentioned as opposite party. Evidently, the crime was registered against the detenu and others under Sections 427 and 447 read with Section 34 IPC. Paragraph 2 of Ext.P1 **WP(Crl.).No.350 OF 2019** **45** dealing with the said crime would reveal that the occurrence was during the small hours, to be precise on 15.08.2016 at 1 a.m. and the case pertains to trespass into the properties of the relative of the de facto complainant and committing mischief causing damage to the roofing sheets and the fence built of iron pipes and caused loss to the tune of ₹75,000/-. Paragraph 21 of Ext.P1 would reveal that the detaining authority took note of the fact that in the statement of the de facto complainant, it is not stated that it was the detenu who had committed the mischief and caused the loss. But, Ext.P1 itself reveals that an investigation was conducted into the crime and first report was submitted and it was produced before the detaining authority and going by the same, the - detenu is the 3[rd] accused therein. The reason for non reckoning of the said crime for subjective satisfaction, after taking it for objective satisfaction, is that the records proving that the detenu had committed the offences were not produced by the police authorities. In this context, it is relevant to refer to paragraphs 7 and 8 of the decision of a **WP(Crl.).No.350 OF 2019** **46** Division Bench of this Court in _**Anithakumari v. State of Kerala and others** [2015 (4) KLT 632]_ . It was held therein ## thus:- _“7. When a person is made guilty by a competent Court, no other authority can look into the case to find out whether the person concerned is guilty or not. Likewise, where it is found, on investigation or enquiry by a competent police officer or authority, that the detenu has committed any offence mentioned in the respective clauses, a further scrutiny by the detaining authority under Section 3 as to the complicity of the detenu in the offence is not contemplated. The detaining authority has to arrive at the objective satisfaction that the person concerned was convicted or found, on investigation or enquiry, to have committed the offence alleged. In other words, the satisfaction in this regard is only with respect to just verifying that the person sought to be detained is the person who is reported to be involved in the offence. The objective satisfaction further requires that the detaining authority must be satisfied that the offence alleged comes within the purview of clause (j) of Section 2 in the case_ **WP(Crl.).No.350 OF 2019** **47** _of 'known goonda' and clause (t) of Section 2 in respect of a 'known rowdy'. The detaining authority has also to satisfy that any of the provisos to clause (p) of Section 2 applies so that if the proviso applies in respect of a particular case, that case shall be omitted from the computation of the number of offences to be taken into account for deciding whether a person is a 'known rowdy'. In the case of a 'known goonda', the detaining authority has also to satisfy whether the proviso to clause (o) of Section 2 is satisfied and that the offence in respect of which a report was filed by a police officer before a lawful authority was consequent to the seizure of any of the items mentioned in the proviso. When the aforesaid tests are applied and requirements are satisfied, it can be said that the detaining authority has arrived at the objective satisfaction. Then comes the question of subjective satisfaction under Section 3(1) of the KAAPA as to whether with a view to prevent the person concerned from committing any antisocial activity within the State of Kerala in any manner, it is necessary to make an order directing that the person concerned be detained. Though it is the duty of the detaining authority, namely, the Government or the officer authorised,_ **WP(Crl.).No.350 OF 2019** **48** _to arrive at the objective as well as subjective satisfaction, it is not within the domain of the detaining authority to make an enquiry as to whether the person concerned has really committed the offence, whether there is sufficient evidence to arrive at a conclusion that he is guilty of the offence or whether any plausible defence is available to the accused in the particular case. Those are all matters beyond the jurisdiction of the detaining authority._ _8. A Division Bench of this Court in Safiya v. State of Kerala, MANU/KE/0372/2008 : 2009 (1) KLT 7 (in which one of us was a party to the judgment), considered the question whether the District Magistrate is expected to scrutinize the records leading to the final report under Section 173(2) before passing an order of preventive detention under Section 3(1) of the KAAPA. The Division Bench held thus:_ _"4. ......Once the investigating officer has come to a conclusion that the accused person has committed an offence referred to in cl. (j) or cl. (t) of S. 2 as the case may be and when that finding (police report) is forwarded along with the information by the police officer not below the rank of the Superintendent of Police to the detaining authority under the Act, the detaining authority cannot look into the sufficiency or otherwise of the materials leading to the finding_ **WP(Crl.).No.350 OF 2019** **49** _by the police officer regarding the commission of the offence. That is within the exclusive jurisdiction of the criminal court. The detaining authority cannot and shall not appreciate the materials leading to the police report and come to a different finding or comment on the finding as to whether on the materials thus made available by the police officer a report under S. 173(2)(i)(d) regarding the commission of offence could have been made or not. As held by the Supreme Court in Union of India v. Paul Manickam, MANU/SC/0805/2003 : 2004 (1) KLT 364 (SC) : AIR 2003 SC 4622 "In case of preventive detention no offence is proved, nor any charge is formulated and the justification of such detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal evidence" (para 14). Thus if the detaining authority cannot go beyond the finding of the investigating officer, it is not necessary for the Superintendent of Police to furnish the materials leading to the police report to the detaining authority in a situation of S. 173(2) report....._ _5. Therefore in circumstances where the detaining authority has furnished the police report under S. 173(2)(i)(d) of the Code of Criminal Procedure, the competent officer need not furnish materials leading to the finding of the investigating officer to the detaining authority since the detaining authority cannot make a different assessment as to the sufficiency of the materials leading to the finding in the report. The satisfaction of the detaining authority need only be based on the final report and the further information furnished by the police officer not below the rank of the Superintendent of Police regarding the need for preventive detention under the Act."_ **WP(Crl.).No.350 OF 2019** **50** 27. We are not oblivious of the position that what matters is the subjective satisfaction of the detaining authority and we cannot arrive at the subjective satisfaction in relation to the said crime. We have referred to the decision in _**Anithakumari** (supra)_ rendered relying on the decision of the Apex Court in _**Union of India v. Paul Manickam** [AIR 2003 SC 4622]_ as well, to show the reason assigned by the detaining authority for not reckoning it for subjective satisfaction is against the settled position of law on that question and in other words, only to show that the crime was also available for arriving at 'subjective satisfaction'. In short, the petitioner cannot canvas anything in favour of the detenu based on the non-reckoning of the said crime assigning the reason as aforesaid, by the detaining authority. 28. It is also the contention of the learned counsel for the petitioner that subsequent to the commission of the alleged offences which culminated in the registration of Crime No.418/2019, the detenu was arrested on 16.02.2019 **WP(Crl.).No.350 OF 2019** **51** and he was enlarged on bail on 22.03.2019. A perusal of Ext.P1 would reveal that the detaining authority was under the impression that the detenu was released on bail only on 17.04.2019 and in fact, that was the day on which the condition imposed under the bail that the detenu should not enter the jurisdiction of Cherthala Taluk, was lifted. It is contended that in respect of Crime No.418/2019, the detenu was enlarged on bail on 22.03.2019 and thereafter, no crime was registered against him. The attempt on the part of the learned counsel for the petitioner is to canvas the position that the said aspect would reveal that the said condition which was imposed on the detenu while granting bail in Crime No.418/2019 of Cherthala Police Station was sufficient to prevent him from indulging in anti-social activities. At the same time, the contention of the petitioner itself would reveal the condition originally imposed while granting bail in the said crime was lifted on 22.03.2019. In short, the contention is that the non-application of mind from the part of the detaining authority is reflected from the very fact that the date on which **WP(Crl.).No.350 OF 2019** **52** such a condition was lifted was virtually taken into account as the date on which the detenu was enlarged on bail. This contention appears to be attractive and acceptable. True that the detaining authority mistakenly stated that 07.08.2019 is the date on which the detenu was enlarged on bail in connection with Crime No.418/2019 of Cherthala Police Station. The fact is that that was the date on which the condition incorporated in the bail granted in favour of the detenu on 22.03.2019 was lifted. Therefore, the aforementioned condition which according to the petitioner was sufficient to prevent the detenu from committing antisocial activities within the limits of Cherthala Taluk, was lifted on 22.03.2019. Ext.P1 order of detention passed on 04.06.2019 cannot therefore be interfered with on the ground raised by the petitioner. 29. We have gone through Ext.P1 which would reveal that it is not as if the order was passed to detain the detenu preventively on the ground that there is no condition in the bail order capable of preventive detention from involving in **WP(Crl.).No.350 OF 2019** **53** anti-social activities. Though it was wrongly taken that the condition would reveal that the detaining authority virtually treated that the said condition restraining the detenu from entering the limits of Cherthala Taluk was very much there in the bail condition and Ext.P1 would reveal that taking note of the antecedents and his nature of criminal activities, the detaining authority held that the detenu being a person who had allegedly used petrol bomb in his unlawful activities, even such a condition is not sufficient to prevent him from committing further anti-social activities. In that context, it is relevant to refer to paragraph 24 of Ext.P1 order:- “എതസിർകേകസിയുലട അവസസാന നസിയമവസിരുദ - പ്രവ്രുതസിയസായ കചർതല കപസാലതീസത് കസ്റ്റേഷൻ കക് 418/2019 നമ്പർ കകേസസിൽ എതസിർകേകസിയത് 17.04.2019 തതീയതസി ബഹ.കകേസാടതസിയസിൽ നസിനരം ജസാമരരം ലഭസിച്ചസിടള്ളതസാണത്. ടസി ജസാമര വരവസ്ഥകേൾ പരസികശസാധസിച്ചതസിൽ (ഇ) എതസിർകേകസി മൂന്നത് മസാസകതകയസാ, കകേസസിൽ കുറപതരം സമർപസിക്കുന്നതത് വലരകയസാ കചർതല തസാലൂകത് പരസിധസിയസിൽ പ്രകവശസികസാൻ പസാടസിലസാതതസാലണന്നത് പരസാമർശസിച്ചസിരസിക്കുന. എന്നസാൽ ടസി വരവസ്ഥകേൾ ലപകടസാൾ കബസാരംബത് ആക്രമണരം കപസാലുള്ള ഭതീകേര പ്രവ്രുതസികേൾ നടത്തുന്ന ലകേസാടുരം കുറവസാളസിയസായ **WP(Crl.).No.350 OF 2019** **54** എതസിർകേകസിലയ നസിയനസിക്കുന്നതസിനത് മതസിയസാകുന്നതലലന്നത് ടസിയസാലന മുൻകേസാല ചരസിതരം പരസികശസാധസിച്ചതസിൽ എനസികത് കബസാധരലപടസിടള്ളതസാണത്.” Thus, it would reveal that taking note of the nature of the crime in which the detenu was allegedly involved viz., Crime No.418/2019, the detaining authority arrived at a finding that even a condition restraining him to enter into the limits of any particular place would not be sufficient to prevent him from committing further anti-social activities. Paragraphs 15 to 27, except 21, would reveal that the detaining authority had applied mind and arrived at subjective satisfaction on such consideration. It is to form such an opinion that he had taken into account the nature of the criminal activities of the detenu and held that he is a person who had committed anti-social activities using petrol bomb, etc. In such circumstances, it cannot be said that after taking into account the _modus operandi_ of commission of offences by the detenu, the detaining authority had gone wrong in forming an opinion that he is a person in respect of whom order to restrain him **WP(Crl.).No.350 OF 2019** **55** from entering the limits of any place would not be sufficient to prevent him from indulging in further anti-social activities. Though the learned counsel for the petitioner made an attempt to establish that a scanning of Ext.P1 would reveal that certain factual positions were wrongly taken into consideration which were sufficient to indicate non-application of mind by the detaining authority. We are of the view that in the light of the provisions under Section 7(4) of KAAPA, the minimum number of cases registered against a person are there within the period specified under Sections 3(1) and 2(p)(iii) of KAAPA in respect of which the appreciation or consideration cannot be said to be not supported by documents. Then, the mere fact that on certain aspects, there occurred some factual mistakes, in view of the reasons assigned by in respect of such instances, cannot be a reason to treat the order passed under Section 3(1) of KAA(P)A as invalid. In other words, Ext.P1 would reveal that even if Crime Nos.1341/2016 and 880/2016 are taken as not available for consideration, sufficient number of cases were **WP(Crl.).No.350 OF 2019** **56** available for consideration and only after arriving at objective satisfaction and then the subjective satisfaction, in accordance with law, that Ext.P1 order was passed. In the said circumstances, we are of the view that Ext.P1 cannot be said to be an order which is invalid or vitiated by such mistakes. In such circumstances, this writ petition must fail and accordingly, it is dismissed. Sd/- **C.T. RAVIKUMAR, JUDGE** Sd/- **N. NAGARESH, JUDGE** spc/TKS/aks **WP(Crl.).No.350 OF 2019** **57** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER OF DETENTION BEARING NO SC 6-140440/2019 BY THE 2ND RESPONDENT DATED 04.06.2019** **EXHIBIT P2 TRUE COPY OF TH DOCUMENTS IN THE SEQUENCE AS SUPPLIED TO THE DETENUE ON HIS ARREST AND ALLEGEDLY CLAIMED TO HAVE BEEN RELIED ON BY THE 2ND RESPONDENT ALONG WITH THE DETENTION ORDER** **EXHIBIT P3 TRUE COPY OF THE ORDER OF APPROVAL BEARING NO HOME-SSA5/106/2019- HOME DATED 25.06.2019** **EXHIBIT P4** - **TRUE COPY OF THE NEWSPAPER REPORT UNDATED STATING THE ATROCITIES COMMITTED ON THE DETENUE BY THE POLICE OFFICERS OF THE 1ST RESPONDENT** **EXHIBIT P5** **TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT CONFIRMING EXHIBIT P1 BEARING NO HOME-SSA 5/106/2019-HOME DATED 14.08.2019**