S. Rani v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 WP(Crl.).No. 121 of 2011(S) --------------------------- PETITIONER(S): --------------- S.RANI, W/O. NIZAR, AGED 52 YEARS, PANAKKUDI VEEDU, NEAR RAILWAY GATE, PETTAH, TC 30/1496, PETTAH P.O., THIRUVANANTHAPURAM. BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA SRI.T.K.SANDEEP SRI.ARJUN SREEDHAR SRI.JOSEPH GEORGE(MULLAKKARIYIL) SRI.K.RATHISH KUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT, (HOME & VIGILANCE) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2. THE DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, THIRUVANANTHAPURAM.695 001. 3. THE SUPERINTENDENT OF CENTRAL PRISON, THIRUVANANTHAPURAM.695 001. 4. THE DEPUTY COMMISSIONER OF POLICE, THIRUVANANTHAPURAM.695 001. 5. THE SUB INSPECTOR OF POLICE, PETTAH POLICE STATION, THIRUVANANTHAPURAM.695 001. GOVERNMENT PLEADER SRI.P.RAVINDRABABU. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 07/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A P P E N D I X WP(Crl.).No. 121 of 2011(S) Petitioner's Exhibits : Ext.P1 : TRUE COPY OF DETENTION ORDER NO.S13.100378/09 DATED 10.2.2010 PASSED BY THE FIRST RESPONDENT. Ext.P2 :TRUE COPY OF THE ADDENDUM TO EXT.P1. Ext.P3 : TRUE COPY OF HE GROUNDS OF DETENTION IN MALAYALAM VERSION OF EXT.P1. Ext.P4 : TRUE COPY OF THE GROUNDS OF DETENTION IN MALAYALM VERSION OF EXT.P2. Ext.P5 : TRUE COPY OF THE DOCUMENTS SERVED ON THE DETENU. EXT.P6 : TRUE COPY OF THE ORDER OF ACQUITTAL DATED 10.11.2009 IN C.C.NO.149/2009 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT V, THIRUVANANTHAPURAM. EXT.P7 : TRUE COPY OF THE REPRESENTATION DATED 4.1.2011 SUBMITTED BEFORE THE FIRST RESPONDENT. TGS (True copy) P.S. TO JUDGE. ## **K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------W.P.(Criminal) No.121 of 2011 ----------------------------------------------Dated 7[th] June, 2011.** ## **J U D G M E N T** ## **Joseph, J.** Petitioner's son stands detained under the provisions of the Kerala Anti Social Activities (Prevention) Act, 2007 (hereinafter referred to as 'the Act') vide Ext.P1 order dated 10.2.2010. The petitioner calls in question Ext.P1 and also Ext.P2 purporting to be an addendum order dated 11.12.2010. Petitioner seeks a writ of habeas corpus. Pursuant to Ext.P2 order, petitioner's son was detained on 11.12.2010. 2. We heard learned counsel for the petitioner and also the learned senior Government Pleader. Learned counsel for the petitioner would essentially assail the orders and make the following submissions : It is pointed out that though Ext.P1 order was issued on 10.2.2010, the said order remained unexecuted. Even though the detenu had not really absconded, there was laches on the part of the authority in executing the order. Alleging that the detenu is involved in the crime mentioned in Ext.P2, viz., Crime No.996/10 of Pettah Police Station under Sections 341, 294(b), 323, 324 and 506(ii) of the W.P.(Crl) 121/11 2 Indian Penal Code, the authority has woken up like a Rip van winkle from deep slumber, which according to the petitioner, is impermissible under law. It is submitted that there is nonapplication of mind, as it is transparent from the fact that the offence relating to crime No.996/10, which is the basis of Ext.P2 order, is alleged to have been committed at 4 p.m. on 10.12.2010. In the space of a day, the detaining authority could not have possibly applied its mind and entered the requisite satisfaction for ordering the detention of the alleged detenu, she submits. She relied on the decision of this Court in **Said Mohammed K.** v. **State of Kerala and others** (2011(1) KHC 544). Learned counsel for the petitioner would elaborate and point out that the crime was registered by the Pettah Police Station and there is reference to the letter of the Deputy Commissioner of Police. She would point out that the letter of the Deputy Commissioner has to reach the District Magistrate. Necessarily, some time would have been consumed in the entire process, leaving very little time with the District Magistrate to bestow his attention in an independent manner to W.P.(Crl) 121/11 3 consider whether there is really a need to detain a person. She would submit that what is important is that the most precious right, viz., the personal liberty of the individual can be encroached upon only subject to the severe safeguards that have been enacted in the Constitution and the most important safeguard is that the authority entrusted with the task of forming the requisite opinion must apply its mind to the question as to whether there is any genuine need to order detention. It is submitted that the facts will speak eloquently regarding the non-application of mind. It is further pointed out that Ext.P2 order would reveal that the person was arrested on 11.12.2010. It is stated in the order that if the detenu is released on bail, he will not hesitate to commit any violence or atrocities and there was non-application of mind. 3. The petitioner would rely on the decision of the Apex Court in **Rekha v. State of Tamil Nadu** [(2011) 5 SCC 244], wherein the Apex Court was inter alia dealing with, an order of detention at paragraph 6 : “6. In Para 4 of the grounds of detention, it is stated : W.P.(Crl) 121/11 4 “4. I am aware that Thiru.Ramakrishnan is in remand in P-6, Kodungaiyur Police Station, Crime No.132 of 2010 and he has not moved any bail application so far. The sponsoring authority has stated that the relatives of Thiru.Ramakrishnan are taking action to take him on bail in the above case by filing bail applications before the higher courts since in similar cases bails were granted by the courts after a lapse of time. Hence, there is real possibility of his coming out on bail in the above case by filing a bail application before the higher courts. If he comes out on bail he will indulge in further activities, which will be prejudicial to the maintenance of public health and order. Further, the recourse to normal criminal law would not have the desired effect of effectively preventing him from indulging in such activities, which are prejudicial to the maintenance of public health and order. On the materials placed before me, I am fully satisfied that the said Thiru.Ramakrishnan is also a drug offender and that there is a compelling necessity to detain him in order to prevent him from indulging in such further activities in future which are prejudicial to the maintenance of public order under the provisions of Tamil Nadu Act 14 of 1982.” The court thereafter, held as follows : “In our opinion, Article 22(3)(b) of the Constitution of India which permits preventive detention is only an exception to Article 21 of the Constitution. An exception is an exception, and cannot ordinarily nullify the full force of the main rule, which is the right to liberty in Article 21 of the Constitution. Fundamental rights are meant for protecting the civil liberties of the people, and not to put them in jail for a long period without recourse to a lawyer and without a trial. As observed in R. v. Secy. of State for the Home Deptt., ex p Stafford (WLR p. 518 F-G) “..... The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily W.P.(Crl) 121/11 5 ## with ordinary concepts of the rule of law.” Article 22, hence, cannot be read in isolation but must be read as an exception to Article 21. An exception can apply only in rare and exceptional cases, and it cannot override the main rule.” ## 4. Learned counsel for the petitioner would also submit that this is a case where the order of detention must be interfered with for the reason that the detenu was not served with all the documents completely. This fact is sought to be established with reference to Ext.P5, which is described as a first information report, which is incomplete, as would be evident from perusal of pages 89 and 90, as page 90 begins with a witness list starting from serial no.16, which would show that it is not in continuation of the earlier page. 5. Learned counsel for the petitioner would point out that in fact, of the nine offences referred to in the original order, one of the offences stood compounded in the year 1996 and there is non-application of mind to the same, which would also render the detention vitiated. 6. Per contra, learned Senior Government Pleader W.P.(Crl) 121/11 6 would point out that the petitioner is not correct in placing reliance on the judgment of this Court in **Said Mohammed K.** v. **State of Kerala and others** (2011(1) KHC 544). That was a case where the original order of detention itself came to be passed on a day, when the Sub Inspector of Police had reported the incident from a place situated about 40 km. away and the entire proceedings were said to have been considered on the same day by the District Magistrate. Voluminous documents would not have possibly been considered by the Magistrate within the space of a day to arrive at the statutory satisfaction. The facts of the present case present a different picture. Here, the original order of detention was passed on 10.2.2010 and in fact, there is no challenge raised to the same. Ext.P2 is only an addendum order. More importantly, learned Senior Government Pleader would point out that it is the very same officer, who has passed Ext.P1 original order, who passed the addendum order and therefore, the complaint of nonapplication of mind would not lie. 7. As far as non consideration of the question of the W.P.(Crl) 121/11 7 person being in custody is concerned, it is pointed out that the offence involved is clearly a bailable offence. The detenu was arrested at 11 a.m. on 11.12.2010 and the authority finds that if released on bail, he will not hesitate to commit any violence or atrocities. This is not a case where the detenu has been sent to jail under an order of court and he was not in custody, as understood by the Apex Court in the case referred to. If the person was let off, the authority would have been blamed for inaction for letting off a person who came within reach and for not taking action under the Act. 8. As far as the question relating to the supply of incomplete documents referred to by the learned counsel for the petitioner with reference to the files is concerned, the learned Senior Government Pleader would point out that actually the entire documents were received as is brought out by the signature of the detenu on those pages also. It is pointed out that Section 7(4) of the Act would be a clear answer to the complaint that one of the cases was compounded. 9. We are of the view that there is no merit in the W.P.(Crl) 121/11 8 Writ Petition. The original order of detention was passed on 11.2.2010. It remained un-executed. What is stated in the report of the Deputy Commissioner of Police is that the detenu was in desertion. Of course, learned counsel for the petitioner takes exception on the ground that actually the detenu had not absconded. We will proceed on the basis that the detenu had not absconded. Now the question to be considered is whether that would be the end of the enquiry and the petition is to be allowed. We would clearly think that it is not so, for the reason that as held in **Babu v. State of Kerala** (2010 (1) KLT 132) when an order of detention is passed and it remains unexecuted for laches on the part of the authorities, if there is any fresh incident involving the alleged detenu, within the meaning of the Act, it is the duty of the authority to consider whether despite the passage of time which renders the original order stale, the person should be detained. The original order of detention is the only order of detention. The addendum to the order of detention actually should reflect the application of mind by the authority to the fresh/subsequent incident and the W.P.(Crl) 121/11 9 question would be whether the detention of the person is required. In this case, we must note that both Exts.P1 and P2 orders were passed by the very same officer. There is no complaint that the original order of detention is vitiated by nonapplication of mind, except no doubt, the contention that one of the cases was compounded. We accept the case of the learned Government Pleader that the answer to the said complaint lies in Section 7(4) of the Act. We cannot overlook the fact that there are nine cases, in which the alleged detenu is involved and one of the cases is a case charged under Section 302 IPC. Therefore, in the circumstances of this case, we would think that neither the orders, Exts.P1 and P2, can be said to be vitiated and as far as Ext.P2 order is concerned, we cannot say that there is non-application of mind. It is of great importance, no doubt that in a matter of preventive detention, there should be proper application of mind. The concept of proper application of mind cannot however be divorced from the facts of the case. 10. It is also important to bear in mind the W.P.(Crl) 121/11 10 distinction between speed and haste. There are situations where the authorities must indeed act speedily. It is essentially a reflection of the sense of priority of the officer to the problem, which is posed before him. It is another thing to say that the officer has acted in undue haste. There is a world of difference between an officer acting with due speed and an officer acting with undue haste. In the facts of this case, we do not think that when Ext.P2 order was passed, it could be said that he was acting in undue haste or that it reflects non-application of mind. We would only say that he was acting with speed. If he did not act with speed, the complaint would have been that he did not act with the needed speed. Therefore, we would think that there is no merit in the contention. 11. As far as the question of bail is concerned, as already noticed, this is a case where all the offences involved were bailable and if the officer entertained the view that if released on bail, it is imperative to detain him, must be understood in the context of his being involved in bailable offences and the officer taking the view that he will be released W.P.(Crl) 121/11 11 on bail by Police Officer himself, unless the order of detention was passed. The Writ Petition is meritless and it is dismissed. Sd/- ## **K.M.JOSEPH, JUDGE.** Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs