Salini v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 3RD DAY OF FEBRUARY 2012/14TH MAGHA 1933 WP(Crl).No. 17 of 2012 (S) ------------------------ PETITIONER(S): - ------------- SALINI AGED 38 YEARS, W/O.ANIL KUMAR, AMBIKA SADANAM PULIYOOR VANCHI THEKKUMMURI, KALLELIBHAGAM VILLAGE KARUNAGAPPALLY TALUK, KOLLAM DISTRICT. BY ADVS.SRI.T.GOPALAKRISHNAN SMT.SHEMI AMBADI VASUDEVAN RESPONDENT(S): - -------------- 1. THE STATE OF KERALA REPRESENTED BY THE ADDL. CHIEF SECRETARY HOME DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM-695001. 2. THE DISTRICT MAGISTRATE, KOLLAM DISTRICT, COLLECTORATE, KOLLAM-691013. 3. THE COMMISSIONER OF POLICE, - KOLLAM CITY, KOLLAM DISTRICT-691001. 4. THE ASST. COMMISSIONER OF POLICE, KARUNAGAPPALLY, KOLLAM DISTRICT-690518. 5. THE CIRCLE INSPECTOR OF POLICE, KARUNAGAPPALLY, KOLLAM DISTRICT-690518. 6. THE SUB INSPECTOR OF POLICE, KARUNGAPPALLY POLICE STATION KOLLAM DISTRICT-690518. 7. THE INSPECTOR, EXCISE RANGE, KARUNAGAPPALLY, KOLLAM DISTRICT-690518. 8. THE SUPERINTENDENT, - CENTRAL PRISON, THIRUVANANTHAPURAM, PIN-695001. BY SRI.K.I.ABDUL RASHEED, ADGP (R1 TO R8) THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 03-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(CRL) 17/2012 A P P E N D I X Petitioner's Exhibits : Ext.P1 : TRUE COPY OF THE DETENTION ORDER NO.M9-39804/KAA(P)A/11 DT.5.8.2011 Ext.P2 : TRUE COPY OF THE MEMO FOR EXECUTING ORDER OF DETENTION DT. 5.8.2011. Ext.P3 : TRUE COPY OF THE JAIL ADMISSION AUTHORIZATION DT. 5.8.2011. Ext.P4 : TRUE COPY OF THE REPORT DT. 5.7.2011. EXT.P5 : TRUE COPY OF THE REPORT DT. 22.6.2011. Ext.P6 : TRUE COPY OF THE LETTER OF ADVICE OF THE 4TH RESPONDENT. EXT.P7 : TRUE COPY OF THE LETTER OF ADVICE OF THE 5TH RESPONDENT. EXT.P8 : TRUE COPY OF THE FIR & CHARGE SHEET OF CRIME 1165/2006 OF KARUNAGAPPALLY POLICE STATION. EXT.P9 : TRUE COPY OF THE FIR & CHARGE SHEET IN CRIME NO.20/07 OF KARUNAGAPPALLY POLICE STATION. EXT.P10 : TRUE COPY OF THE FIR & CHARGE SHEET IN CRIME NO.629/09 OF KARUNAGAPPALLY POLICE STATION. EXT.P11 : TRUE COPY OF THE FIR AND FINAL REPORT IN CRIME NO.52/2010. EXT.P12 : TRUE COPY OF THE FIR AND FINAL REPORT IN CRIME NO.1215/2011 OF KARUNAGAPPALLY POLICE STATION. EXT.P13 : TRUE COPY OF THE OCCURRENCE AND FINAL REPORT OF CRIME NO.20/2008 OF KARUNAGAPPALLY EXCISE RANGE. EXT.P14 : TRUE COPY OF THE OCCURRENCE AND FINAL REPORT OF CRIME 6/2009 OF EXCISE RANGE, KARUNAGAPPALLY. EXT.P15 : TRUE COPY OF THE OCCURRENCE AND FINAL REPORT OF CRIME 79/2004 OF KARUNAGAPPALLY EXCISE RANGE. EXT.P16 : TRUE COPY OF THE REPRESENTATION. TGS (TRUE COPY) P.S. TO JUDGE. ## **K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------W.P.(Crl) No.17 of 2012 ----------------------------------------------Dated 3[rd] February, 2012.** ## **J U D G M E N T** ## **K.M.Joseph, J.** Petitioner is the wife of the alleged detenu arrested under the provisions of the Kerala Anti-social Activities (Prevention) Act (for short, 'KAAPA'). The order of detention is dated 5.8.2011. The sponsoring authority sponsored the report on 5.7.2011. The detenu was arrested on 14.8.2011. 2. We heard the learned counsel for the petitioner and the learned Additional Director General of Prosecutions. 3. Learned counsel for the petitioner would raise the following contentions before us: According to him, the order of detention would show that the authority has proceeded on the basis that the detenu was in police custody in connection with one of the cases, which was the basis for the order of detention. It is also recited in the order that if released, the detenu would indulge in undesirable activities. But, he would submit that this is not sufficient. There is no reference to any bail application moved by the detenu nor is there even any reference to any WP(Crl) 17/12 2 real possibility of the detenu being released on bail. In this connection, he referred to the decision reported in **Jameela v. State of Kerala** [2008(1) KLT SN 21 (case No.25)]. Therein, a Division Bench of this Court interalia held as follows : “Going by the above decision, it can be seen that there, apart from the awareness of the fact that the detenu was in custody, the detaining authority was also aware and was apprehensive that the detenu would be released on bail. But in the present case, there is no report to that effect that the detenu herein is likely to be released on bail within a short time and there is no recital in Ext.P1 order that the detenu is likely to be released on bail and any move on the part of the detenu in that direction and in case of such release, he is likely to involve in antisocial activities. The personal liberty of every citizen of India is protected by the fundamental rights conferred on them as per the provisions of the Constitution of India. Art.14 envisages that the State shall not deny to any person equality before law or equal protection of the laws within the territory of India. The above rights are further ensured and more protected under Art.22 in case of arrest and detention in certain cases.” 4. The learned Additional D.G.P. would submit that in the order of detention, it is stated that if the detenu is released on bail, he will indulge in anti-social activities and that is sufficient. He would further submit that there is no merit in WP(Crl) 17/12 3 the argument of the petitioner that the absence of the statement in the order that there is real likelihood of the detenu being released is fatal, in view of the fact that actually the detenu was released. 5. We may notice the decision of a Division Bench of this Court in **Babu v. State of Kerala** [2010(1) KLT 132], wherein this Court has held as follows : “23. The law on the point, we feel, has been stated succinctly in _Kamarunnissa v. Union of India_ ((1991) 1 SCC 128) in para. 13, (which is quoted in _Sravanan_ (supra). We extract that passage. “Para.13: From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, WP(Crl) 17/12 4 and (b) that on being so released he would in all probability indulge in prejudicial activity; and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher court.” 24. In the instant case we note that the incident in Case No.6 had taken place on 1.6.2009. The detenu was in custody from 5.6.2009. There is no case for anyone that any recent application for bail of the detenu stood rejected on the date of Ext.P2. It is trite that by the operation of the proviso to S.167 Cr.P.C. in such a case if final report is not filed, the accused/detenu will be entitled to be released on bail on 4.9.2009. Whether charge sheet was filed after investigation or it was not filed there was real possibility of the detenu being released on bail. The impugned order Ext.P2 was passed on 27.8.2009. The counsel contends that this process of reasoning cannot be deciphered or invented from Ext.P2 order. But it must be noted that in Ext.P2 order, it has been stated that the detaining authority anticipates that the WP(Crl) 17/12 5 detenu is planning to get bail. Of course S.167 Cr.P.C. has not been specifically referred to. The fact that the final report will/may not be filed within 90 days has also not been referred to. But, we cannot afford to ignore the fact that these reasons must definitely have weighed with the detaining authority when it passed Ext. P2 order. In these circumstances even though there is no specific reference to any pending application or the possibility of the detenu securing relief by invoking the proviso to S.167 Cr.P.C., we are of the opinion that it cannot be stated that the subjective satisfaction of the detaining authority of the probability of the detenu getting released from judicial custody in that case is perverse or that mind must be assumed to have been not applied to that circumstance specifically. We are conscious of the decision in _Sravanan_ (supra) which states that the satisfaction that the detenu may go out of custody cannot be lightly assumed or inferred. In the facts and circumstances of this case, we find that such subjective satisfaction is well founded though details are not referred to in Ext.P2 order. “ In view of the statement at paragraph 24, we asked the learned Additional D.G.P. to ascertain as to since when the detenu was in custody in connection with one of the cases. The learned Additional D.G.P. would submit that actually, the detenu was in custody from 15.5.2011 onwards. More importantly, he would WP(Crl) 17/12 6 say that actually, the detenu was released on bail as per order dated 4.7.2011. That is, even prior to the date of the report of the sponsoring authority, the court had ordered his release. He would point out that as per the report of the Sub Inspector, the detenu was actually in custody and the fact of the bail being granted was not known to the sponsoring authority and the sponsoring authority also did not bring this fact to the notice of the detaining authority and that is the reason why the detaining authority has recited in the order that the detenu was in custody, in the order of detention. He would further submit that the charge sheet in the case, on the basis of which the detenu was in custody from 15.5.2011, was filed on 20.5.2011. 6. We notice that unlike the fact situation available in **Babu v. State of Kerala** [2010(1) KLT 132], this is a case where charge sheet is filed, well within the statutory period and therefore, there is no question of the authority proceeding on the basis of Section 167 of the Criminal Procedure Code. Further more, we may notice that in the said case, in paragraph 24, the court holds that in the impugned order therein, it has WP(Crl) 17/12 7 been stated that the detaining authority anticipated that the detenu is planning to get bail. It was in such circumstances, the dictum was laid down as contained in paragraph 24. 7. In this case, we would think that there is nothing to indicate that there was any material before the authority on the basis of which there was a real possibility of the detenu being released. It is another matter that the detenu was actually released and this is one of the cases where that fact was not placed before the detaining authority. We are, therefore, of the view that in this case, the petitioner has succeeded in showing that the detaining authority had no materials before it to come to the conclusion that there was a real possibility of the detenu being released and there is nothing recited in the order, in the said direction. On this ground, the petitioner is entitled to succeed. 8. Accordingly, the Writ Petition (Criminal) is allowed and the order of detention is quashed and the continued detention of the detenu is held illegal and we direct that the detenu, viz., Anil Kumar @ Aniyankunju shall be released, WP(Crl) 17/12 8 unless his detention is necessary in connection with any other case. Registry will communicate the above order to the concerned Prison Authorities forthwith. Sd/- **K.M.JOSEPH, JUDGE.** Sd/- **M.L.JOSEPH FRANCIS, JUDGE.** tgs