Salija v. State of Kerala & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN TUESDAY, THE 27TH DAY OF AUGUST 2013/5TH BHADRA, 1935 WP(Crl.).No. 222 of 2013 (S) ----------------------------- PETITIONER(S): -------------------------- SALIJA, AGED 30 YEARS W/O. BAIJU @ KEEDAYI BAIJU, KEEDAYI HOUSE KALLUR VILLAGE, MAVINCHUVADU DESOM PUDUKKAD POLICE STATION LIMIT, THRISSUR DISTRICT. BY ADVS.SRI.P.M.ABDUL JALEEL (KODUNGALLUR) SRI.K.SHAMEER MOHAMMED RESPONDENT(S): ---------------------------- 1. STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY HOME DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM-695 001. 2. THE DISTRICT MAGISTRATE/DISTRICT COLLECTOR AYYANTHOLE, THRISSUR DISTRICT-680 303. 3. THE SUPERINTENDENT OF POLICE THRISSUR RURAL, AYYANTHOLE, THRISSUR DISTRICT-680 303. 4. THE SUPERINTENDENT OF VIYYUR CENTRAL PRISON VIYYUR, THRISSUR DISTRICT-680 010. R BY ADV. DGP SRI.ASIF ALI THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 27-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(Crl.).No. 222 of 2013 (S) ----------------------------- ## APPENDIX ## PETITIONER(S)' EXHIBITS ------------------------------------- - P1 : COPY OF THE DETENTION ORDER DTD.26.2.2013 OF THE 2ND RESPONDENT. - P2 : COPY OF THE GROUNDS OF DETENTION DTD.26.2.2013 OF THE 2ND RESPONDENT. - P3 : COPY OF THE ARREST MEMO DTD.7.3.2013. - P4 : COPY OF THE ARREST INTIMATION DTD.7.3.2013 GIVEN TO THE DETENUE. - P5 : COPY OF THE INDEX DTD.8.3.2013 OF THE RECORDS SERVED ON THE DETENUE. - P6 : COPY OF INSPECTION MEMO DTD.7.3.2013. - P7 : COPY OF THE DISCHARGE CARD ISSUED BY THE MEDICAL COLLEGE HOSPITAL, THRISSUR, DTD.7.12.2012. - P8 : COPY OF THE DISCHARGE CARD ISSUED BY THE MEDICAL COLLEGE HOSPITAL, THRISSUR, DTD.12.2.2013. - P9 : COPY OF REPRESENTATION OF THE DETENUE DTD.19.3.2013. - P10: COPY OF THE ORDER OF APPROVAL BY THE GOVERNMENT DTD.15.3.2013. - P11: REPORT OF THE 3RD RESPONDENT DTD.6.2.2013. - P12: COPY OF FIR GIVEN TO THE DETENUE IN CRIME NO.788/2011 DTD.22.9.2011. - P13: COPY OF F.I. STATEMENT GIVEN TO THE DETENUE IN CRIME NO.788/2011 DTD.22.9.2011. ## RESPONDENT(S)' EXHIBITS --------------------------------------- - EXT.R3(a), R3(b), R3(c): TRUE COPIES OF ACKNOWLEDGEMENTS OF DETENTION ORDER, NOTICE, ARREST MEMO ETC. - EXT.R3(d): TRUE COPY OF THE WOUND CERTIFICATE ISSUED FROM THE TALUK HOSPITAL, PUTHUKKAD. /TRUE COPY/ PS TO JUDGE ## **ANTONY DOMINIC & P.D.RAJAN, JJ.** ------------------------------------------- W.P(Crl).No.222 of 2013 ------------------------------------------Dated this the 27[th] day of August, 2013 ## **JUDGMENT** ## Antony Dominic, J. - 1.This writ petition is filed challenging Ext.P1 order of detention passed by the second respondent exercising his powers under the provisions of the Kerala Anti-social Activities (Prevention) Act, 2007, hereinafter referred to as the 'Act', for short. 2.Petitioner is the wife of Baiju @ Keedayi Baiu. Ext.P11 is the report dated 6.2.2013 made by the third respondent in terms of the provisions of section 3(1) of the Act. In that report, after referring to six criminal cases pending before the Thrissur East Police Station, Ollur Police Station, Puthukkad Police Station and Vellikkulangara Police Station, in which, Sri.Baiju, hereinafter referred to as the 'detenu', is an accused. Report shows that the third respondent made reference to the provisions of section 3 of the Act and requested that action be initiated against the detenu as provided under that section. Acting upon the report, the first respondent issued Ext.P1 WPCR.222/13 2 order dated 26.2.2013. In that order, relying on crime Nos.324/07 and 327/07 of the Thrissur East Police Station, Cr.No.658/10 of the Ollur Police Station, Cr.Nos.306/11 and 1852/12 of the Puthukkad Police Station and Cr.No.788/11 of the Vellikkulangara Police Station, the detenu was held to be a 'Known Rowdy' as provided under section 2(p)(iii) of the Act and on that basis, ordered his detention as provided under section 3, in order to prevent him from further indulging in anti-social activities. 3.Accordingly, the detenu was arrested on 7.3.2013 and his detention was approved by the Government of Kerala as provided under section 3(3) of the Act on 15.3.2013. In terms of the provisions contained in section 9 of the Act, the matter was referred to the Advisory Board and the Board, after considering the matter, including Ext.P9 representation made by the detenu, submitted its report on 6.5.2013. Accordingly, the detention was confirmed by the Government of Kerala by its order dated 17.5.2013. It is in the mean while that this writ WPCR.222/13 3 petition was filed challenging the order of detention and seeking to set the detenu at liberty. - 4.We heard the learned counsel for the petitioner and the learned Director General of Prosecution in the matter. 5.The first contention raised by the counsel for the petitioner is that in Ext.P1 order, there was noting informing the detenu of his right to make representation to the Government of Kerala. This contention was raised relying on section 7(2) of the Act which mandates that after the arrest in pursuance of a detention order, the detenu shall also be informed in writing, under acknowledgement, of his right to represent to the Government and before the Advisory Board against the arrest and detention. It is true that Ext.P1 order of detention or Ext.P2 grounds of detention do not contain a statement that the detenu is entitled to represent to the Government of Kerala. However, on behalf of the respondents, reference was made to Ext.P4 notice dated 7.3.2013, duly signed by the Police Sub Inspector, Puthukkad Police Station, which WPCR.222/13 4 document also contains an acknowledgement of the detenu. In this document, the detenu has been specifically informed that he has a right to represent to the Government through the Additional Chief Secretary and also to the Advisory Board constituted under section 8 of the Act. From Ext.P4, therefore, two things are clear. One is that the detenu was informed about his right to make representation as provided under section 7(2). Second is that this document contains his signature in acknowledgement thereof. Therefore, the first contention raised by the learned counsel for the petitioner does not deserve acceptance. - 6.The second contention raised was that in Ext.P11, the report dated 6.2.2013 submitted by the sponsoring authority to the detaining authority, the detenu was shown as a 'Goonda' and that when Ext.P1 order of detention was issued, he was held to be a 'Rowdy'. Counsel contended that though such difference is legally permissible, the detaining authority should have assigned specific reasons justifying his conclusion. In support of this contention, learned counsel placed reliance on WPCR.222/13 5 the judgment of this Court in **Shiny** v. **State of Kerala** [2010 (1) KLT SN 35]. According to him, in the absence of any specific reasons assigned by the detaining authority, Ext.P1 order is illegal. 7. In so far as this contention raised by the learned counsel for the petitioner is concerned, a reading of Ext.P11 shows that all that the sponsoring authority has stated is that the detenu is a goonda and there is reference to section 2(p)(iii) also. Therefore, Ext.P11 does not contain a statutory classification done by the sponsoring authority as sought to be made out by the learned counsel. In any case, since Ext.P11 also makes reference to section 2(p)(iii), which defines 'Rowdy', the fact that the word 'Goonda' has been inadvertently made does not mean that what was intended was that the detenu is a 'Goonda' and not a 'Rowdy'. Even otherwise, responsibility of statutory classification in terms of the Act rests only with the detaining authority and as the detaining authority had on the materials available before it, has done that classification in accordance WPCR.222/13 6 with law, we do not find any substance in the objection now raised. - 8.It was then contended by the learned counsel for the petitioner that there was delay in approval of the detention as provided under section 3(3) of the Act. Section 3(3) of the Act provides that when an order is made by the authorised officer under section 3(2), he shall forthwith report the fact to the Government together with copy of the order and supporting records and that no order shall remain in force for more than 12 days, excluding public holidays, from the date of detention, unless in the mean time, the order of detention has been approved by the Government or by the Secretary, Home Department if generally so authorised by the Government. - 9.In so far as this case is concerned, Ext.P1 detention order was passed on 26.2.2013 and the detenu was arrested on 7.3.2013. Ext.P10 is the order of approval issued under section 3(3) and that order carries the date 15.3.2013. Going by the date that is found in Ext.P10, the said order has been issued within the WPCR.222/13 7 time permitted under section 3(3). However, learned counsel for the petitioner handed over a copy of an order received by his client and according to him, that order contains the signature with the date 26.3.2013. Therefore, according to him, the order was issued only on 26.3.2013 and if so, the same is beyond 12 days specified in section 3(3). However, learned DGP produced before us the files which show that on the copy of Ext.P10 available in the file, the detenu himself has given an acknowledgement which shows that the same has been served on him on 16.3.2013. Now that the detenu himself has acknowledged receipt of Ext.P10 on 16.3.2013, the contention of the learned counsel for the petitioner that the order would have been issued only on 26.3.2013 cannot be factually correct. If that be so, we cannot accept the contention of the petitioner that the approval was not granted within the 12 days time specified in section 3(3) of the Act. - 10.It was then contented by the learned counsel for the petitioner that taking advantage of the provisions in section 7 (2), the detenu had made a representation to the Advisory WPCR.222/13 8 Board and that the Advisory Board did not consider his representation. This contention also stands belied by the report of the Advisory Board made available to us by the learned DGP, which shows that reference has been made to Ext.P9 representation made by the detenu in column 25 of the report of the Advisory Board. 11. Now what remains is the contention of the learned counsel for the petitioner that section 7(1) of the Act has been violated in this case. Section 7(1) of the Act reads thus: “When a person is arrested in pursuance of a detention order, the officer arresting him shall read out the detention order to him and give him a copy of such order.” 12.A reading of this provision of the Act would show that when a person is arrested in pursuance of a detention order, the officer arresting him shall read out the detention order to him and give him a copy of such order. It is the settled position of law that in the matter of preventive detention, when citizens WPCR.222/13 9 are deprived of their fundamental right of liberty, courts are bound to ensure strict compliance of the provisions of law authorising such detention. If that be so, the only interpretation that is possible is that this provision of the Act is required that it is a mandatory one and that it is to be complied with in letter and spirit. In so far as this case is concerned, according to the respondents, the detenu was arrested by the Sub Inspector of Police, Puthukkad Police Station on 7.3.2013 and Ext.P4 is the notice issued to the detenu at the time of his arrest. This notice reads thus: “ന�ങള� പ�ത�ക�ട� പപ�ല�സ� പ�ഷന ക�� 77/13 u/s.3 of ,2007 പ�ര� സ�മ�ഹ വ�ര�ദ (പവര%നങള (തടയല ) ആക� (പ��ര�, ബഹ�: ത/ശ�ര ജ�ല�ല� �ലകറ�ളട [ജ�ല�ല� മജ�സ�പടറ�, ഓതകറസ�5� ഓഫ�സര പ�ര� ആന�, പസ�ഷ/ല ആക�വ�റ�സ� (തടയല ) ആക�, 2007 (ആക� 34 ഓഫ� 2007 )] ഉ%രവ� ന�പര C1-81D1/2013 ത�യത� 26.02.13 (പ��ര� 07.03.13 ത�യത� 17.00 മണ�ക�� മ�വ�ന@ �വട� എന സല%� ളവച� ന�യമ�ന �സരണ� അറ�� ള@യ�ത�ട���ത�ണ�. ന�ങള� അട�യന�രമ�യ� ത/ശ�ര വ�യ�ര ളസ ന (ടല ജയ�ല�ല �ര �തല തടങല�ല പ�രI�ക�നത�ന�യ� ഹ�ജര�ക�നത�ണ�. തടങല�ളനത�ളര ത�ങളക� പ�ര�� ഗവണളമന� ള സ(�ടറ�പയറ�ളല അഭ/നരവ�ഭ�ഗ%�ളന അ5�ഷണല @�ഫ� ള സ(�ടറ� മ�ഖ�ന�ര� ഗവണളമന �പലയ�ക� പര�ത� സമരI�ക�വ�നത�� ��ട�ളത പമലപറഞ ആക� (പ��ര� WPCR.222/13 10 ര�പ��/തമ�യ ള@യരമ�ന അക5Oസറ� പബ�ര5�, പ�ര� ആന� പസ�ഷ/ല ആക�വ�റ�സ� (തടയല ) ആക�, (ശ�ന�വ�സ�, പ�ട� പറ�5�, വ�പവ��നനനഗര എ�മകര, , ള��ച�, 682 026 എന പബ�ര5�ന �� പര�ത� സമരI�ക�വ�നത�ണ� എന ��� വ�വര� ഇത�ന�ല അറ�യ�ച�ള�����ന�.” 13.A reading of this notice would, therefore, show that the officer who arrested the detenu, the Police Sub Inspector of Puthukkad Police Station, has not read out the detention order nor has he given the detenu a copy of such order. On the other hand, learned DGP relied on Ext.P2, the grounds of detention, and the endorsement made at the foot of it by the Deputy Jailer, Central Prison, Viyyoor on 8.3.2013. Here, the detenu has acknowledged that the detention order was read out and was explained to him. In this document, it is stated thus: “detention order ഉ� അന�ബന പരഖ���� page 1 to 10 എന�ക� ��ട� ഇ�ഗ���ഷ�ല ഉള detention order വ�യ�ച� മലയ��%�ല എന�ക� അത�ളല ��ര ങള പറഞ� മനസ�ല�ക� തന�. എന�ളകത�ളര ഉള പ�സ����ളട FIR ളനയ�� അന �ബന പരഖ�� �ളടയ�� വ�യ�ക�വ�ന പ�രI��ള page 1 to 21 എന�ക� ��ട� തടങല�ന� എത�ളര ഗവണളമന �പലക�� അക5Oസറ� പബ�ര5�ന � WPCR.222/13 11 പര�ത�നല��ന എന�ക� അവ��ശ� ഉളUന ��ര/� എളന പറഞ� മനസ�ല�ക�യ�ട�U�.” - 14.A reading of this order shows that a detention order in English was read out and was explained to the detenue in Malayalam and he has also been given copies of the documents relied on and was also informed of his right to make representation. - 15.First of all, even Ext.P1 detention order is not in English. Therefore, we are at a loss to understand the identity of the detention order in English that was read out and explained to the detenu. Secondly, what is acknowledged on Ext.P2 by the detenu cannot be taken as one in compliance of section 7(1) because nothing in Ext.P2 would show that the exercise mentioned therein was carried out by the officer who arrested the detenu and in any case, the detention order that is allegedly read out was read out only on 8.3.2013, one day after the detention of the detenu. Evidently therefore, there is noncompliance of section 7(1) of the Act and in our view, that WPCR.222/13 12 itself should vitiate the continued detention of the detenu. Therefore, for non-compliance of section 7(1) of the Act, the continued detention of the detenue is illegal and Ext.P1 order of detention is liable to be set aside. Accordingly, we set aside Ext.P1 order of detention issued by the second respondent under section 3 of the Act and direct that the detenu be set at liberty forthwith, unless he is required to be detained for the purpose of any other matter. Sd/ANTONY DOMINIC, Judge. Sd/- P.D.RAJAN, Judge. kkb.