Reshma Raj v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 21ST DAY OF MAY 2014/31ST VAISAKHA, 1936** ## **WP(Crl.).No. 139 of 2014 (S)** ## **-----------------------------** **PETITIONER:** **--------------------------** **RESHMA RAJ, AGED 19 YEARS, D/O.RAJAN NAIR, RAJAMANDIRAM, BUTHANOOR PERINGADUMURI, ENNAKKADU VILLAGE, ALAPPUZHA DISTRICT.** **BY ADVS.SRI.C.RAJENDRAN SRI.K.R.RANJITH** **SMT.R.S.SREEVIDYA** ## **RESPONDENTS:** **-------------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** ## **2. DISTRICT MAGISTRATE,** ## **ALAPPUZHA DISTRICT, ALAPPUZHA - 688 001.** ## **3. DISTRICT POLICE CHIEF,** - **OFFICE OF THE DISTRICT POLICE CHIEF, ALAPPUZHA DISTRICT, ALAPPUZHA - 688 001.** ## **4. SUB INSPECTOR OF POLICE, MANNAR POLICE STATION, ALAPPUZHA - 689 622.** **5. SUB INSPECTOR OF POLICE, KARIYILAKULANGARA POLICE STATION, ALAPPUZHA - 688 001.** ## **6. EXCISE INSPECTOR,** - **CHENGANNOOR EXCISE OFFICE, CHENGANNOOR, ALAPPUZHA - 689 121.** ## **7. THE SUPERINTENDENT,** ## **CENTRAL PRISON, THIRUVANANTHAPURAM - 695 001.** ## **8. THE SUPERINTENDENT,** ## **CENTRAL PRISON, VIYYUR, THRISSUR - 680 001.** ## **R1 TO R8 BY ADDL.DIRECTOR GENERAL OF PROSECUTION** ## **SRI.K.I.ABDUL RASHEED** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 21-05-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WP(Crl.).No. 139 of 2014 (S)** ## **----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **----------------------------------------** ## **EXHIBIT P1. A TRUE PHOTOCOPY OF THE DETENTION ORDER DATED 27.01.2014.** **EXHIBIT P2. A TRUE PHOTOCOPY OF THE GROUNDS FOR DETENTION ISSUED BY THE 2ND RESPONDENT TO THE DETENUE DATED 27.01.2014.** **EXHIBIT P3. A TRUE PHOTOCOPY OF THE REPORT SUBMITTED BY THE 3RD RESPONDENT DATED 31.12.2013.** **EXHIBIT P4. A TRUE PHOTOCOPY OF THE CASE REPORT IN CRIME NO.130/2012 OF MANNAR EXCISE RANGE.** **EXHIBIT P5. A TRUE PHOTOCOPY OF THE SEIZURE MAHAZER IN CRIME NO.130/2012 OF MANNAR EXCISE RANGE.** **EXHIBIT P6. A TRUE PHOTOCOPY OF THE CASE REPORT IN CRIME NO.129/2012 OF MANNAR EXCISE RANGE.** **EXHIBIT P7. A TRUE PHOTOCOPY OF THE SEIZURE MAHAZER IN CRIME NO.130/2012 OF MANNAR EXCISE RANGE.** **EXHIBIT P8. A TRUE PHOTOCOPY OF THE F.I.R. IN CRIME NO.872/2013 OF MANNAR POLICE STATION.** **EXHIBIT P9. TRUE COPY OF THE SCENE MAHAZAR IN CRIME NO.872/2013 OF MANANR POLICE STATION.** **EXHIBIT P10. A TRUE PHOTOCOPY OF THE C.R. IN CRIME NO.70/2013 OF MANNAR EXCISE RANGE.** **EXHIBIT P11. A TRUE PHOTOCOPY OF THE SEIZURE MAHAZAR IN CRIME NO.70/2013 OF MANAR EXCISE RANGE.** **EXHIBIT P12. A TRUE PHOTOCOPY OF THE ORDER APPROVING EXHIBIT P1 DETENTION ORDER DATED 10.02.2014.** **EXHIBIT P13. A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 25.02.2014.** **EXHIBIT P14. A TRUE PHOTOCOPY OF THE LETTER DATED 06.03.2014.** **EXHIBIT P15. A TRUE PHOTOCOPY OF THE OFFICIAL MEMORANDUM ISSUED BY THE MAGISTRATE COURT TO THE S.H.O. MANNAR POLICE STATION DATED 13.12.2013.** **EXHIBIT P16. TRUE PHOTOCOPY MOVEMENT RESTRICTION ORDER ON 16.10.2009.** **EXHIBIT P17. A TRUE PHOTOCOPY OF THE SAID ORDER OF THE ADVISORY BOARD DATED 08.12.2009 IS PRODUCED HEREWITH AND MARKED AS.** **..2/-** **Kss** **==> picture [23 x 8] intentionally omitted <==** **WP(Crl.)No.139 of 2014 (S)** **EXHIBIT P18. A TRUE PHOTOCOPY OF THE SECTION 2(J) OF THE KAA(P)A.** **EXHIBIT P19. A TRUE PHOTOCOPY OF THE ORDER DATED 13/12/2013 IN CRIME NO.872/2013 OF MANNAR POLICE STATION.** **EXHIBIT P20. A TRUE COPY OF THE ORDER DATED 16/01/2014 IN CRIME NO.70/2013 OF CHENGANOOR EXCISE.** **RESPONDENT(S)' EXHIBIT:** **-----------------------------------------** **EXHIBIT R2(a): A COPY OF THE DETENTION ORDER NO.KAA(P)O/07/2007/SC6 DATED 31/08/2007.** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **ANTONY DOMINIC & ALEXANDER THOMAS, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - W.P.(Crl.) No.139 of 2014 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21[st] day of May, 2014** ## **J U D G M E N T** ## **Antony Dominic, J.** The petitioner is the daughter of Rajan Nair @ Nilavarassery Rajan. She has filed this writ petition challenging Ext.P1, an order issued by the second respondent exercising his powers under the Kerala AntiSocial Activities (Prevention) Act 2007, detaining Sri. Rajan Nair (hereinafter referred to as 'the detenu' for short). 2. Brief facts of the case are that the detenu is an accused in Crime No.213/2007 of Kariyilakulangara Police Station, Crime Nos.129/2012, 130/2012, and 70/2013 of the Chengannoor Excise Office and Crime No.872/2012 of the Mannar Police Station. Pointing out the involvement of the detenu in the above five criminal cases and also highlighting the necessity to keep him in preventive detention to prevent him continuing his anti-social W.P.(Crl.) No.139 of 2014 **-2-** activities, the third respondent submitted Ext.P3 report, under Section 3 (1) of the Act to the second respondent. On the basis of the information thus received and considering the other materials that were also made available to him the second respondent passed Ext.P1 order, classifying the detenu as a 'known goonda' as defined under Section 2 (o) of the Act and ordering his detention under Section 3 (2) of the Act in order to prevent him from continuing anti-social activities, which expression is also defined under Section 2 (a) of the Act. In execution of Ext.P1 order, the detenue was arrested and detained from 31.01.2014 and since then he is in detention at the Viyyoor Central Jail. The detention was approved by the Government as provided under Section 3 (3) and based on the report of the Advisory Board the detention was also confirmed by the Government, as provided under Section 10 of the Act. It is in this background the writ petition is filed. 3. We heard the learned counsel for the petitioner and also the learned Additional Director General of W.P.(Crl.) No.139 of 2014 **-3-** Prosecution who appeared for the respondents. 4. The first contention raised by the learned counsel for the petitioner was that in Ext.P1 order, it has been stated that the detenu is under judicial custody and that once he is released from custody he will continue to be a threat to the society. It is stated that though the order has been passed on that basis, in crime Nos.872/2013 and 70/2013 the detenu was granted bail by Exts.P19 and P20 orders and that he was released from judicial custody on 16.01.2014 itself. Therefore it is argued that the detaining authority was unaware of the orders granting bail to the detenu and that it was without considering the conditions imposed by the trial court that the detaining authority has ordered that the detenu be detained. This according to the learned counsel for the petitioner rendered the detention order illegal and unconstitutional. 5. However according to the learned Additional Director General of Prosecution, who appeared for the respondents, detenu is a person against whom proceedings W.P.(Crl.) No.139 of 2014 **-4-** under Section 107 of Cr.P.C. and proceedings under Section 15 of the KAA(P) Act were initiated and that even thereafter the detenu continued his anti-social activities. Therefore, according to him, even in spite of the conditions imposed by the trial court in Ext.P20 order releasing the detenu from Crime No.70/2013 of the Excise Office Chengannur, there was every likelihood that the detenu would still continue his anti-social activities. On this basis, the learned Additional Director General of Prosecution contended that the fact that the conditions imposed in Ext.P20 were not considered by the detaining authority did not in any manner invalidate the satisfaction of the detaining authority that the detenu is a person who deserved to be preventively detained. 6. In cases where orders of preventive detention are issued, it is the settled position of law that the sponsoring authority should make available all relevant materials to the detaining authority and that the detaining authority shall consider each of those materials while arriving at a conclusion on the necessity to preventively detain a citizen, W.P.(Crl.) No.139 of 2014 **-5-** depriving him of his precious fundamental freedom of liberty. In the context of orders passed releasing such persons on bail from judicial custody, both the apex court and this Court have also repeatedly held that the detaining authority should consider such orders and should conclude on the necessity of detention only on that basis. See in this connection the judgments of the apex court in **Amritlal and** **Ors. v. Union Government through Secretary, Ministry of Finance and Ors. [(2001) 1 SCC 341], Rushikesh Tanaji Bhoite v. State of Maharashtra & Ors. [AIR 2012 SC 890]** and this Court in **Nalini v. State of Kerala [2014 (1) KLT SN 22 (Case No.30)]** . Therefore, the duty of the detaining authority to consider the orders passed by the competent court releasing the detenu on bail is settled and its non-compliance will certainly render the order of detention unconstitutional. 7. Insofar as this case is concerned, materials available before this Court show that in crime Nos.872/2013 and 70/2013 mentioned above the detenu was granted bail W.P.(Crl.) No.139 of 2014 **-6-** by Exts.P19 and P20 orders and the detenu was released from judicial custody on 16.01.2014. Further in Ext.P20 order a condition that the detenu shall not involve in any offence while he is on bail was also imposed by the Court. However despite this order passed on 16.01.2014 that the detaining authority passed Ext.P1 order of detention on 27.01.2014 on the assumption that the detenu was still in judicial custody even on that date. This therefore establishes that the detaining authority was totally unaware of Ext.P20 order and did not consider the implications of the conditions imposed by the court while releasing the detenu on bail and also whether the conditions imposed by the court were sufficient to prevent him from continuing the anti-social activities if any. In such circumstances, the contention of the learned counsel for the petitioner that Ext.P1 order of detention is unconstitutional deserves to be accepted. Accordingly, we set aside Ext.P1 order of detention and direct the 8[th] respondent that the detenu Rajan Nair @ Nilavarassery Rajan shall be released W.P.(Crl.) No.139 of 2014 **-7-** forthwith, unless he is required to be detained for the purpose of any other case. Sd/- **ANTONY DOMINIC, JUDGE** Sd/- **ALEXANDER THOMAS, JUDGE** shg/