Sakunthala 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 K.RAMAKRISHNAN** **FRIDAY, THE 12TH DAY OF APRIL 2013/22ND CHAITHRA 1935** ## **WP(Crl.).No. 105 of 2013 (S)** ## **-----------------------------** ## **PETITIONER(S):** **--------------------------** **SAKUNTHALA, FLAT NO.248, RAJAJI NAGAR, CHENKALCHOOLA, THYCAUD, THIRUVANANTHAPURAM.** **BY ADVS.SRI.B.S.SWATHY KUMAR, SMT.V.BEENA, SMT.K.V.SUPRABHA.** **RESPONDENT(S): -------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. DISTRICT COLLECTOR & DISTRICT MAGISTRATE, THIRUVANANTHAPURAM-695 001.** **3. DEPUTY COMMISSIONER OF POLICE (LAW & ORDER), OFFICE OF THE DEPUTY COMMISSIONER, THIRUVANANTHAPURAM-695 001.** **BY SRI.TOM JOSE PADINJAREKKARA, ADDL. D.G.P. GOVT. PLEADER SRI.SHIBU JOHN.** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 08-04-2013, THE COURT ON 12-04-2013 DELIVERED THE FOLLOWING:** **rs.** ## **WP(Crl.).No. 105 of 2013 (S)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **EXHIBIT P1: TRUE COPY OF THE ORDER NO.S.13-96818/2012 DATED 28.11.2012 OF THE 2ND RESPONDENT.** - **EXHIBIT P2: TRUE COPY OF THE REPORT NO.241/CAMP/DCP (L&O)/12TC DATED 13.11.2012.** - **EXHIBIT P3: TRUE COPY OF THE MEMO NO.S13-96818/2012 DATED 28.11.2012.** - **EXHIBIT P4: TRUE COPY OF THE ORDER NO.102664/SSA5/12/HOME DATED 05.01.2013.** - **EXHIBIT P5: TRUE COPY OF THE ORDER NO.G.O.(RT) NO.215/2013/HOME DATED 29.01.2013.** - **EXHIBIT P6: TRUE COPY OF THE CERTIFICATE DATED 30.07.2012 ISSUED BY REGIONAL CANCER CENTRE, THIRUVANANTHAPURAM ALONG WITH PREMEDICATION CHART.** ## **RESPONDENT'S EXHIBITS:-** - **EXT.R2A COPY OF THE ACKNOWLEDGMENT OF DETENTION ORDER BY THE DETENUE.** **EXT.R3A COPY OF THE DETENTION ORDER NO.S 13-96818/12 DATED 28/11/2012.** - **EXT.R3B COPY OF THE GROUNDS OF DETENTION ISSUED BY THE 2ND RESPONDENT.** **EXT.R3C COPY OF THE INDEX OF ALL ITEMS SUPPLIED TO THE DETENUE BEARING HIS DATED ACKNOWLEDGMENT.** **EXT.R3D COPY OF THE REPORT OF 3RD RESPONDENT SUPPLIED TO THE DETENUE BEARING HIS DATED ACKNOWLEDGMENT.** **//TRUE COPY//** **P.S. TO JUDGE** **rs.** K.M. JOSEPH & K. RAMAKRISHNAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - W.P (Crl.) No.105 of 2013 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12[th ] day of April, 2013 ## J U D G M E N T ## K. Ramakrishnan, J. This is an application filed by the wife of the detenue, challenging Ext.P1 detention order dated 28.11.2012 and for setting him at liberty. 2. The petitioner is the wife of Kumar @ Kallakumar, who is the detenue in the case, who has been detained in Central Prison, Thiruvananthapuram, under Section 3(1) of the Kerala Anti Social Activities Prevention Act, 2007 (hereinafter called the 'KAAPA Act'), on the basis of Ext.P2 report, requesting to declare the husband of the petitioner as a known-goonda and detain him under the provisions of the Act. The 3[rd] respondent sent Ext.P2 report to the 2[nd] respondent, and 2[nd] respondent after consideration of the materials produced before him, declared the detenue as known-goonda and passed Ext.P1 order, and that was sent to Government for approval, and the same was approved by the Government as per order of approval 2 W.P (Crl.) No.105 / 2013 No.102664/SSA5/2012/Home dated 10.12.2012. Ext.P3 detention order was issued directing the detenue to be detained in Central Prison, Thiruvananthapuram and accordingly he was arrested on 01.12.2012. Thereafter, the husband of petitioner filed an application to the Government for releasing him and after getting the report from the Advisory Board, Government by order dated 29.01.2013 approved and confirmed the order of detention of the detenue as per Ext.P5 order. 3. The application filed by the petitioner was rejected and it was intimated to the petitioner by the Principal Secretary as per Ext.P4 intimation. The petitioner is a cancer patient, suffering from carcinoma left breast and she is undergoing treatment, for the same evidenced by Ext.P6 Medical document. According to the petitioner, the sponsoring authority as well as the detaining authority had suppressed the material facts and the detaining authority has not applied his mind, regarding the pendency of proceedings under Section 107 of Criminal Procedure Code against the W.P (Crl.) No.105 / 2013 3 detenue, and necessary documents relied on by the detaining authority for coming to the conclusion that he is a knowngoonda have not been supplied to the detenue and as such prejudice has been caused to him and thereby the detention order passed by the detaining authority and approved by the Government and confirmed by the Government is illegal and hence the same is liable to be set aside. Hence the writ petition was filed by the wife of the detenue for writ of Habeas Corpus or any other appropriate writ order or direction commanding and compelling the respondents to produce: (i) the corpus of the petitioner's husband Kumar @ Kallakumar before this Hon'ble Court as the detention is illegal. (ii) issue a writ of certiorari or other appropriate writ or order or direction calling for records leading to Ext.P1 and P5 and quash the same and declare that the detention of the detenue is illegal and the detenue may be set at liberty. (iii) Such other appropriate writ or order or direction as this Hon'ble Court may deem fit and proper to meet the ends of justice. 4. The 3[rd ] respondent filed counter contending as follows: W.P (Crl.) No.105 / 2013 4 The petition is not maintainable. None of the grounds mentioned in the writ petition are sufficient to set aside or quash the detention order, Ext.P1 and the confirmation order passed by the Government, Ext.P5. The detenue is having a history sheet of known de-predator of Cantonment Police Station, and is having strong antecedents of criminal activities since 1981. He is engaged in illegal trading of ganja and illicit liquor and he was accused in 8 criminal cases registered under the provisions of the Narcotic Drugs and Psychotropic Substances Act(hereinafter called the 'NDPS Act'), Kerala Abkari Act, Prevention of Damage to Public Property Act (hereinafter called the 'PDPP Act') within a period from 20062012 of which in two cases, he has been convicted and other five cases, trial is progressing at present and in the remaining one case, though the commission of the offence committed by the accused has been established beyond doubt, the same is pending for some technical reasons. On the basis of the report submitted by this respondent, the 2[nd] respondent, after considering the materials available, passed Ext.P1 detention 5 W.P (Crl.) No.105 / 2013 order dated 28.11.2012 and the same was executed on 01.12.2012, and the grounds for detention along with the documents were served on the detenue evidenced by Exts.R3 (a), (b) and (c) and the copy report submitted by this respondents was also given to the detenue and acknowledgment obtained evidenced by Ext.R3(d). The detaining authority has considered all the aspects and applied his mind before passing the order, and rightly come to the conclusion that he is a known-goonda and passed Ext.P1 order. That was sent to the government for approval and it was approved by the government. The representation submitted by the detenue through jail authorities was considered by the government after getting report from the Advisory Board, and then passed Ext.P5 order and so, the procedure adopted by the authorities is perfectly legal and does not suffer from any infirmity, and the order passed is perfectly justifiable and there is no ground made out for setting aside the orders, and he prayed for dismissal of the application. 6 W.P (Crl.) No.105 / 2013 5. The second respondent has filed counter contending that he has considered all the documents and the report submitted by the 3[rd] respondent and then come to the conclusion that the detenue is a known-goonda defined under the Act and felt in the public interest to detain him under the provisions of the 'KAAPA Act' (Kerala Anti-Social Activities (Prevention) Act), 2007 and accordingly passed Ext.P1 order. In the circumstances and the antecedents of the detenue will go to show that initiating proceedings under Section 107 of Criminal Procedure Code is not going to improve his condition and his presence is a threat to the society and so, satisfied that he has to be detained under the Provisions of the Act and passed the order. This was approved by the government within time and there is no illegality committed in passing the order and as such the order passed is perfectly justifiable. He prayed for dismissal of the petition. 6. First respondent also filed a counter, more or less reiterating the contentions raised by the other respondents, supporting passing of Ext.P1 order. It is further W.P (Crl.) No.105 / 2013 7 contended that on getting Ext.P1 order, government approved the same and the representation submitted by the detenue was considered after getting a report from the Advisory Board and Ext.P5 order was passed. So there is no illegality committed by any of the authorities and they also prayed for dismissal of the application. 7. Heard learned counsel for the petitioner Sri. B.S.Swathikumar and Additional Director of Prosecution Sri. Tom Jose Padinjarekara. 8. Learned counsel for the petitioner submitted that the proceedings initiated under Section 107 of Criminal Procedure Code has not been properly considered by the detaining authority, and as such, there is no proper application of mind by the detaining authority before passing the order, which vitiated the order. Further, the copies of the documents relied on by the authorities have not been supplied to the detenue which caused prejudice to him. Further the petitioner is a cancer patient and except the detenue, there is none to look after her. None of the ingredients for declaring W.P (Crl.) No.105 / 2013 8 the detenue as known-goonda has been made out, and as such the order passed by the authority below is illegal and as such the detention is illegal and the detenue is liable to be released forthwith, after setting aside the orders passed by the authority below. 9. On the other hand, the learned Deputy Director of Prosecution argued that there is no illegality committed by the authorities. They have considered all the documents and after applying mind properly and judiciously, the detaining authority passed Ext.P1 order and that was approved by the Government, and the copies of the documents along with grounds for declaring him as knowngoonda, and also detaining him under the Act relied on have been supplied to the detenue and he had made representation and that was considered by the Advisory Board and after giving him an opportunity of hearing, report was sent and then the order was confirmed by the government as per Ext.P5 order and there is no illegality committed. 10. Section 2(a) of the Act defines 'Anti Social W.P (Crl.) No.105 / 2013 9 Activity', which reads as follows: (a) “anti-social activity” means acting in such manner as to cause or likely to cause, directly or indirectly, any feeling of insecurity, danger or fear among the general public or any section thereof, or any danger to the safety of individuals, safety of public, public health or the ecological system or any loss or damage to public exchequer or to any public or private property or indulges in any activities referred in clauses (c ), (e), (g),(h), (i), (j), (m), (n), (q) and (S) of this section; Section 2(i) of the Act defines 'Drug Offender', which reads as follows: (i) “drug-offender” means a person who illegally cultivates, manufactures, stocks, transports, sells or distributes any drug in contravention of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985) or in contravention of any other law for the time being in force, or who knowingly does anything abetting or facilitating any such activity; Section 2(j) of the Act defines 'Goonda', which reads as follows: (j) “goonda” means a person who includes in any anti-social activity or promotes or abets any illegal activity which are harmful for the maintenance of the public order directly or indirectly and includes a bootlegger, a counterfeiter, a depredator of environment, a digital data and copy right pirate, a drug offender, an hawala racketeer, an hired ruffian, rowdy, an immoral traffic offender, a loan W.P (Crl.) No.105 / 2013 10 shark or a property grabber' Section 2(o) of the Act defines 'Known-Goonda', which reads as follows: (o) “known goonda” means a goonda who had been, for acts done within the previous seven years as calculated from the date of the order imposing any restriction or detention under this Act,- (i) found guilty, by a competent Court or authority at least once for an offence within the meaning of the term 'goonda' as defined in clause (j) of Section 2; or (ii) found in any investigation or enquiry by a competent police officer, authority or competent Court on complaints initiated by persons other than police officers, in two separate instances not forming part of the same transaction, to have committed any act within the meaning of the term 'goonda' as defined in clause (j) of Section 2: Section 3 of the Act deals with power of the authority for making order of detention of known-goondas and knownrowdies which reads as follows: “3. Power to make orders for detaining known Goondas and Known Rowdies.- (1) The Government or an officer authorised under sub-section (2), may, if satisfied on information received from a Police Officer not below the rank of a Superintendent of Police with regard to the activities of any Known Goonda or Known Rowdy, that with a view to prevent such person from committing any anti- W.P (Crl.) No.105 / 2013 11 social activity within the State of Kerala in any manner, it is necessary so to do, make an order directing that such person be detained. (2) If having regard to the circumstances prevailing, or likely to prevail in any area, the Government, if satisfied that it is necessary so to do, may, by order in writing, direct that during such period as may be specified in the said order, the District Magistrate having jurisdiction may exercise the powers under sub-section (1) in respect of such persons residing within his jurisdiction or in respect of such persons not so resident who have been indulging in or about to indulge in or abet any anti-social activities within such jurisdiction. (3) When any order is made under this section by the authorised officer under sub-section (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.” Section 7 of the Act deals with grounds for order of detention and the procedure to be followed after order of detention was passed, which reads as follows: “7. Grounds of order of detention to be disclosed.(1) When a person is arrested in pursuance of a W.P (Crl.) No.105 / 2013 12 detention order, the officer arresting him shall read out the detention order to him and give him a copy of such order. (2) The grounds of detention, specifying the instances of offences, with copies of relevant documents, as far as practicable, on the basis of which he is considered as a 'known goonda' or known rowdy' and giving such materials-relating to his activities on the basis of which his detention has been found necessary, shall be furnished to him as soon as possible, nevertheless, in any case, within five days of detention and he shall also be informed in writing, under acknowledgment, of his right to represent to the Government and before the Advisory Board against his detention: Provided that nothing in this section shall require any authority to disclose to the detained person any fact, the disclosure of which will reveal the identity of any confidential source or the disclosure of which will be against the interests of internal security or national security. (3) The Superintendent of the Jail where such person is detained shall afford him reasonable opportunity to consult a lawyer and reasonable assistance in making a representation against the detention order to the Government or to the Advisory Board. (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, non-existent, 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 satisfied about W.P (Crl.) No.105 / 2013 13 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.” 11. In this case the detenue is accused in the following cases: |**_Sl._**<br>**_No._**|**_Crime Number_**<br>**_and Police_**<br>**_Station_**|**_Offences_**|**_Current Status_**| |---|---|---|---| |1.|227/2006 of<br>Cantonment<br>Police Station.|Under Section 20(b)(i)<br>of NDPS Act, for<br>possession of 120 grams<br>of ganja in 25 small<br>packets. Date of Crime<br>05.12.2006 at 8.45 p.m<br>at vehicle parking area,<br>Palayam<br>Market,<br>Thiruvananthapuram.|The case was taken on file as<br>C.C.No.175/2007 of the<br>Judicial First Class Court-III,<br>Thiruvananthapuram and he<br>was convicted on 27.12.2011<br>and sentenced to undergo 18<br>days rigorous imprisonment,<br>and also to pay a fine of<br>Rs.1,000/-.| |2.|121/2007 of<br>Cantonment<br>Police Station.|Under Section 20(b) (ii)<br>A of NDPS Act and<br>Section 8(i) and (ii) of<br>Kerala Abkari Act. Date<br>of offence 26.05.2007 at<br>9.50 a.m, on the<br>footpath leading to the<br>road to Palayam and<br>other places from<br>Backery Junction at<br>Thiruvananthapuram.|After investigation, final<br>report was filed before the<br>Judicial<br>First<br>Class<br>Magistrate Court - III,<br>Thiruvananthapuram and the<br>case was committed to<br>Sessions Court and pending<br>as S.C. No.1493 2010 before<br>that court.| W.P (Crl.) No.105 / 2013 14 |**_Sl._**<br>**_No._**|**_Crime Number_**<br>**_and Police_**<br>**_Station_**|**_Offences_**|**_Current Status_**| |---|---|---|---| |3.|81/2008<br>of<br>Cantonment<br>Police Station .|Under Section 3(2)(e)<br>of<br>PDPP<br>Act.<br>Occurrence 07.04.2008<br>at 2.15 a.m. at<br>Cantonment<br>Police<br>Station,<br>Thiruvananthapuram.|After investigation charge<br>sheet was submitted and was<br>taken on file as C.C.177/2008<br>on the file of the Judicial First<br>Class Magistrate Court-III,<br>Thiruvananthapuram and he<br>was convicted on 29.11.2012<br>and sentenced to undergo<br>simple imprisonment for four<br>days and also to pay a fine of<br>Rs.2,000/-| |4.|168/2008 of<br>Cantonment<br>Police Station.|Under Section 20(b) (ii)<br>A of NDPS Act, for<br>possession of 300 grams<br>of ganja for sale in 76<br>small packets on the<br>road leading to Backery<br>Junction from Palayam-<br>Poojappura Junction.<br>Date of occurrence<br>19.07.2008 at 5 p.m.|After investigation, final<br>report has been filed and<br>pending as C.C. No.50/2009<br>before Judicial First Class<br>Magistrate Court - III,<br>Thiruvananthapuram and the<br>same is pending.| |5.|639/2009 of<br>Cantonment<br>Police Station|Under Section 20(b)(ii)<br>A of NDPS Act, for<br>found to be in<br>possession of 365 grams<br>of ganja for sale near<br>the workshop of Babu<br>at Backery Junction,<br>Thiruvananthapuram on<br>08.12.2009 at 3 p.m .|After investigation, final<br>report filed and pending as<br>C.C. No.147/2010 on the file<br>of the Judicial First Class<br>Magistrate<br>Court-III,<br>Thiruvananthapuram<br>and<br>pending before that court.| |6.|493/2012 of<br>Cantonment<br>Police Station|Under Section 20(b) (ii)<br>A of NDPS Act for<br>found to be in<br>possession of 380 grams<br>of ganja for the purpose<br>of sale at Panavila<br>Junction on 03.06.2012<br>at 3.15 p.m.|He was arrested and produced<br>for investigation before the<br>judicial First Class Magistrate<br>Court-III,<br>Thiruvananthapuram and he<br>was released on bail and the<br>investigation is in progress.| W.P (Crl.) No.105 / 2013 15 |**_Sl._**<br>**_No._**|**_Crime Number_**<br>**_and Police_**<br>**_Station_**|**_Offences_**|**_Current Status_**| |---|---|---|---| |7.|772/2012 of<br>Cantonment<br>Police Station|Under Section 20(b) (ii)<br>A of NDPS for found to<br>be in possession of 200<br>grams of ganja for sale<br>at parking place at<br>Palayam Market in<br>Thiruvananthapuram<br>town.|He was arrested from the spot<br>and the articles were ceased<br>in the presence of witness. He<br>was produced before the<br>Judicial<br>First<br>Class<br>Magistrate<br>Court-III,<br>Thiruvananthapuram and he<br>was released on bail and the<br>investigation is still in<br>progress.| |8.|1615/2012 of<br>Thampanoor<br>Police Station.|Under Section 20(b) (ii)<br>A of NDPS Act, for<br>found to be in<br>possession of 190 grams<br>of ganja for sale at<br>Thycaud<br>Santhi<br>Kavadam<br>on<br>22.09.2012 at 9.15 a.m<br>and the contraband<br>articles were ceased in<br>the<br>presence<br>of<br>witnesses and he was<br>arrested from the spot.|He was produced before the<br>Judicial<br>First<br>Class<br>Magistrate<br>Court-III,<br>Thiruvananthapuram and he<br>was released on bail and the<br>investigation is in progress.| 12. So it is clear from the above that he was convicted in two cases involving offence under the provisions of the NDPS Act and six other cases have been registered under the provisions of the NDPS Act for engaging in the sale of ganja, of which conviction under PDPP Act has not been reckoned for this purpose. In 2012 itself, he had involved in three cases and inspite of the fact that he was released on W.P (Crl.) No.105 / 2013 16 bail, he was continuing in such activities. 13. So, it is clear from the materials produced, he comes under the definition of known-goonda under Section 2 (o) of the KAAPA Act. It is also seen from the order of the detaining authority that on the basis of the report given by the Cantonment Police, a case was registered as Crime No.507/2012, under Section 107 of Criminal Procedure Code and a report has been sent to Sub Divisional Magistrate Court, Thiruvananthapuram, where it was taken on file as M.C.171/2012, and though he was directed to appear and execute bond on 21.11.2012, he appeared through counsel and took time and bond was not executed. 14. The detaining authority had considered these facts, and also found that initiating proceedings under Section 107 of Criminal Procedure Code is not going to improve the condition of the detenue and leaving him in the society is danger to the society and come to the conclusion that, he will have to be declared as a known-goonda, as defined under Section 2(o)(i) and (ii) read with Section 2(i) of the Act and W.P (Crl.) No.105 / 2013 17 passed the detention order under Section 3(1) of the Act. 15. The dictum laid down in the decision reported in **2012 (3) KLT 528 (Sreedevi v. State of Kerala)** is not applicable to the facts of this case and as in this case, he was convicted in two cases of which one has not been considered and after investigation charge-sheet has been submitted in two other cases, and three other cases are pending investigation. So the District Magistrate has considered these aspects and applied his mind and satisfied that he had committed such offences and he will have to be declared as known-goonda. The dictum laid down in the decision reported in **2011(3) KLT 150 (Manju v. State of Kerala and others)** is not applicable to the facts of this case. In that case, the very existence of the pendency of proceedings under Section 107 of Criminal Procedure Code against the detenue was suppressed and that was not considered by the detaining authority or sponsoring authority, before passing the detention order and that was taken as a ground for declaring the detention order illegal by this court. But in this case, the W.P (Crl.) No.105 / 2013 18 pendency of proceedings under Section 107 of Criminal Procedure Code has been specifically mentioned in the detention order and also found that it is not going to improve the condition of the detenue as he had committed offences repeatedly and that too involving sale of ganja, affecting the society and he will not improve. Thereafter, the detaining authority found that he will have be declared a known-goonda under the Act, and preventive detention has been ordered in this case. 16. In the decision reported in **1975 KHC 666 (Haradhan Shah v. State of West Bangal and other)** , while considering the constitutional validity of Maintenance of Internal Security Act, 1971, the constitution Bench of the Hon'ble Apex Court held that the Act is not violative of article 19, 21, 22 and 14 of Constitution of India and observed in para 19 as follows: “19. The essential concept of preventive detention is that detention of a person is not to punish him for something he has done but to prevent him from doing it. The basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenue acting in a manner similar W.P (Crl.) No.105 / 2013 19 to his past acts and preventing him by detention from doing the same a criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one case a person is punished to prove (sic) (on proof of) his quite and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in S.3 of the Act to prevent.” In para 34 of the same decision, the principles for passing detention order has been enumerated as follows: “34. The principles which can be broadly stated are these. First, merely because a detenu is liable to be tried in a criminal Court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that the Police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention. Third, where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as W.P (Crl.) No.105 / 2013 20 to the likelihood of such a person indulging in activities which jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances.” 17. In the decision reported in **2011 KHC 4868** **(D.M. Nagaraja v. The Government of Karnataka and others),** it has been held by the Hon'ble Apex Court that merely because the detenue is liable to be tried in a criminal court for commission of a criminal offence or to be proceeded against or preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure could not by itself debar the government from taking action for his detention under the Act. 18. In the decision reported in **2012 (4) KHC 896 (Rekha Gopakumar (Dr.) v. State of Kerala and others)** , it has been held that right of detenue to get copies of relevant materials relied on by the detaining authority is a right guaranteed by the constitution as well as the Goonda 21 W.P (Crl.) No.105 / 2013 Act. The denenue should be communicated with regard to the grounds of detention so as to enable him to make representation against the order of detention and noncompliance of this will vitiate the order of detention. But in this case, it will be seen from Ext.R3(a) to (d) that all the copies of the documents relied on including the grounds for declaring him a known-goonda and the order of the detaining authority were served on the detenue and he had acknowledged the same as well. Further he had made representation to the Government as well. So, it cannot be said that there is non-compliance of furnishing documents as claimed by the counsel for the petitioner. So, none of the grounds mentioned in the petition has been substantiated to declare the detention order illegal. Further the fact that though he was on bail, he repeated the commission of similar offence involving the sale of ganja, punishable under the provisions of NDPS Act, shows that his presence in the society is danger to the society and he is not likely to improve his condition inspite of initiating proceedings under Section 107 W.P (Crl.) No.105 / 2013 22 of Criminal Procedure Code, and as such all these aspects were considered by the detaining authority and passed Ext.P1 order after applying mind properly and judiciously and this was approved by the Government and the representation submitted by the detenue has been considered by the government after getting a report from the Advisory Board and then passed Ext.P5 order, confirming the same. There is no illegality committed by the authority below in passing the detention order and confirmed by the government. So there is no ground made out for setting aside the order of detention passed by the authority below in this case. 19. It is true that the petitioner had produced documents to show that she is suffering from breast cancer and undergoing treatment for the same. But that alone is not sufficient to set aside the order of detention, validly passed by the authority below. The public interest is main criteria for making such order and that will not give way for protecting the private interest of the petitioner. So under the circumstances, we are satisfied that there is no illegality W.P (Crl.) No.105 / 2013 23 committed by the authority below in passing Ext.P1 and P5 order and they do not suffer any illegality, and the same is not liable to be set aside for any of the grounds mentioned in the petition, and the petition lacks merit and the same is liable to be dismissed. In the result, the petition is dismissed. Sd/K.M.JOSEPH, (Judge) Sd/K.RAMAKRISHNAN, (Judge) // True Copy // P.A. To Judge ss