Salma (W/o Shibu Latheef) v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **THURSDAY, THE 20[TH] DAY OF JULY 2023 / 29TH ASHADHA, 1945** **WP(CRL.) NO. 517 OF 2023** ## **PETITIONER:** **SALMA, AGED 34 YEARS W/O SHIBU LATHEEF, KAVIL VEETIL, VADAKKAN MYNAGAPALLY MURI, MYNAGAPALLY, KUNNATHUR TALUK, KOLLAM, PIN - 690519 BY ADVS.RENJITH B.MARAR LAKSHMI.N.KAIMAL ARUN POOMULLI PREETHA S CHANDRAN ABHIJITH SREEKUMAR** ## **RESPONDENTS:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED BY CHIEF SECRETARY, SECRETARIAT,**| ||**THIRUVANANTHAPURAM, PIN - 695001**| |**2**|**THE ADVISORY BOARD**| ||**KERALA ANTI-SOCIAL ACTIVITIES (PREVENTION)ACT**| ||**VIVEKANANDA NAGAR, ELAMAKKARA,**| ||**KOCHI,KERALA, PIN - 682026**| |**3**|**DISTRICT MAGISTRATE,**| ||**KOLLAM**| ||**COLLECTORATE, KOLLAM CIVIL STATION ROAD,**| ||**KOLLAM, PIN - 691013**| |**4**|**DISTRICT POLICE CHIEF - KOLLAM RURAL**| ||**ASHRAMAM ROAD, ASHRAMAM, KOLLAM, PIN - 691001**| ||**BY ADVS.K.A.ANAS, GOVERNMENT PLEADER**| **THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR FINAL HEARING ON 10/07/2023 AND THE COURT ON 20/07/2023, DELIVERED THE FOLLOWING:** **W.P.(Crl.) No.517 of 2023** **2** ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **-------------------------------------------------------** ## **W.P.(Crl.) No.517 of 2023** **---------------------------------------------------Dated this the 20[th] day of July, 2023** ## **J U D G M E N T** ## **C.S.Sudha, J.** In this writ petition, the petitioner, the wife of the detenu, challenges Ext.P2 order of detention dated 28/02/2023 passed under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA), by the third respondent treating the detenu as a 'known rowdy' and Ext.P5 order dated 28/04/2023 passed under Section 10 (4) of KAAPA by the first respondent confirming Ext.P2 order, detaining the husband of the petitioner for a period of six months. 2. Exts.P2 and P5 orders are challenged mainly on two grounds - (i) non application of mind by the detaining authority and (ii) noncompliance of Section 3(3) of KAAPA. 3. Heard Ms.Lakshmi N.Kaimal, the learned counsel for the petitioner and Sri.K.A.Anas, the learned Government Pleader. 4. According to the learned counsel for the petitioner, the detenu cannot be classified as a 'known rowdy' under Section 2(p)(iii) of the **W.P.(Crl.) No.517 of 2023** **3** KAAPA, as all the offences alleged to have been committed by the detenu do not fall under the definition contained in Section 2(t) of KAAPA. Out of the four crimes reckoned in the detention order, the third crime, i.e., Crime No.13/2022, Excise Range, Ernakulam, has been registered under the NDPS Act and therefore the said case could not have been taken into consideration for treating the detenu as a known rowdy. The very fact that this crime has also been taken into consideration, shows clear non-application of mind by the detaining authority, contends the petitioner. 5. The learned Government Pleader, on the other hand drew our attention to Section 7(4) of KAAPA and submitted that even if the third crime is ignored, the remaining three cases are sufficient to classify the detenu as a 'known rowdy'. 6. Section 7(4) of KAAPA says that an 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 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. The detaining **W.P.(Crl.) No.517 of 2023** **4** authority has reckoned four cases, namely, Crime no.1962/2018, Sastamkotta police station alleging commission of offences under Sections 143, 147, 452, 294(b), 323, 324, 506(i), 308 read with Section 149 of the IPC; Crime no. 1292/2020, Sasthamkotta police station alleging commission of offences punishable under Sections 341, 342, 323, 324, 308, 342 read with Section 34 IPC; Crime no.13/2022 Excise Range, Ernakulam alleging commission of offences under Section 22(C), 29 and 25 of the NDPS Act and finally Crime no.1547/2022, Karunagappally police station alleging the commission of offences punishable under Section 341, 324, 308 read with Section 34 IPC for passing the detention order. Apparently, the third crime, namely, Crime no.13/2022, Excise Range, Ernakulam, could not have been taken for treating the detenu as a 'known rowdy' because it does not involve the commission of an offence contemplated under Section 2(t) of KAAPA. As per Section 2(p)(iii) a person can be treated as a 'known rowdy' who by reason of acts done within the previous seven years as calculated from the date of the detention order, is found on investigation or enquiry by a competent police officer or other authority, on complaints initiated by persons other than police officers, in three separate instances not forming part of the same transaction to have committed any offence mentioned in clause (t) of Section 2 of KAAPA. Therefore, three crimes **W.P.(Crl.) No.517 of 2023** **5** involving commission of offences under the relevant Chapters of IPC within seven years before the date of order, is sufficient to treat a person as 'known rowdy'. The detaining authority in arriving at the objective satisfaction, has committed a mistake by including the third crime which admittedly involves commission of offence under the NDPS Act. However, that mistake will not vitiate the entire detention order as three crimes have been committed by the detenu within a period of seven years before the date of the detention order involving offences under the relevant provisions of IPC. Hence he still comes under the definition of a known rowdy as contemplated under KAAPA. In the light of Section 7(4) of KAAPA, the detention order cannot be considered to be vitiated. 7. The second argument is that the provisions of Section 3(3) of KAAPA has not been complied with. Section 3(3) says that when any order is made under Section 3(1) 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 **W.P.(Crl.) No.517 of 2023** **6** Secretary, Home Department if generally so authorised in this regard by the Government. According to the learned counsel for the petitioner, the authorised officer is to forthwith report the fact to the Government and the Director General of Police with a copy of the order and supporting records. However, Ext.P2 order has not been forthwith sent to the Government and therefore relying on the decisions reported in **Anupama S.V. v. State of Kerala, 2022(5) KHC 281** and **Jasheela T.M. v. State of Kerala, 2022(7) KHC 613** , the argument is that the order is liable to be set aside. 8. During the course of the arguments, the learned Government Pleader handed over the file of the authority concerned for our perusal. On going through the file we find that Ext.P2 detention order was sent on the very same day by the detaining authority to the authorities concerned and therefore there is no violation of Section 3(3) of KAAPA as argued on behalf of the detenu. 9. It was further argued that the sufficiency of the bail conditions in Crime No.1292/2020 has never been considered by the detaining authority before passing the detention order. The sufficiency or efficacy of the bail conditions has not been considered in the detention order and therefore there is non application of mind by the detaining authority. Relying on the decision in **Mary Selma v. State of Kerala, 2021 KHC 127** , **W.P.(Crl.) No.517 of 2023** **7** the argument is that Ext.P2 order is liable to be set aside. 9. Paragraph VI of Ext.P2 detention order reads thus;- “VI. FXnÀI£nbv¡v ss{Iw \w.1962/2018, 1292/2020, 13/2022, 1547/2022 \w tIkpIfn tImSXn Pmayw A\phZn¨n«pÅXmWv. IPC sk£³ 308 {]ImcapÅ ss{Iw \w 1292/20 \w tIknse H^ojy മമമമമറമണണ ] cntim[n¨n«pÅXmWv. ss{Iw \w 1962/18, 1547/22 \w tIkpIfnse tImSXn PmayhyhØIfpw FXnÀI£n GÀs¸«n«pÅ IpäIrXy§fpsS tcJIfpw ]cntim[n¨Xn PmayImemh[n Xocp¶ apdbv¡v XpSÀ¶pw Øncambn IpäIrXy§fn GÀs¸«n«pÅXmbn ImWp¶p. kmaqlnIhncp² {]hÀ¯\§Ä Xsbp¶Xn\v മ�ണ�യമണ� KAA(P)A 2007þ{]ImcapÅ IcpX XS¦Â F¶Xn\mepw ബഹ.tImSXn ജമമമ ഉതര��മല hyhØIÄ kw_Ôn¨v ബഹ. മ�രള sslt¡mSXnbpsS jmPnX kp\oÀ tIknse hn[n C\n apX Hcp {]knUâ v Bbn IW¡mt¡ണXnà F¶ _lpam\s¸« kp{]wtImSXn Sn മ�knt·epÅ A¸oen hyàam¡nbn«pÅXv IW¡nseSp¯pw FXnÀI£nbpsS XpSÀ¨bmb kmaqlyhncp² {]hÀ¯\§Ä kaql¯n\v hfscb[nIw B]¡camsW¶pw BIbm BbXv XSbp¶Xn\v ട� I£nsb IcpX XS¦en ] mÀ¸n¡pIbÃmsX aäp amÀ¤ansöpw t_m²ys¸«n«pÅXmWv. ” An argument was also advanced that what has been looked into by the detaining authority is only the official memorandum and not the bail order. **W.P.(Crl.) No.517 of 2023** **8** This would also show that the detaining authority has never seen the bail order and therefore there was no possibility of the detaining authority seeing the bail conditions imposed, which would also show that the efficacy of the bail conditions were never considered or taken into consideration by the detaining authority. This argument also is incorrect because on a perusal of the original file, we find that the official memorandum bearing no.D 595/20 issued from the office of the Court concerned, reads thus;- ## _“D 595/20_ ## _Official Memorandum_ ## _Sasthamcottah P.S.Cr.1292/20_ _The S.I. of Police Sasthamcottah Police Station has informed that the accused A1 Shibu, A2 Sarath @ Manikuttan, A3 Sree Sankar are released on bail on 12[th] May 2020 on condition that the accused shall report before the investigating officer on every Tuesday and Saturday between 10 am and 11 am for one month or till final report is filed whichever is earlier.”_ The bail condition has been referred to in the official memorandum which document has been considered by the detaining authority which is apparent from the paragraph VI of Ext.P2 order extracted above. Therefore the argument that neither the bail conditions were looked into nor its efficacy considered, is incorrect in the light of the reasoning given by the detaining **9** ## **W.P.(Crl.) No.517 of 2023** authority in the paragraph extracted above. In the above circumstances, we find that the writ petition is without any merits and hence the same is dismissed. Interlocutory applications, if any pending, shall stand closed. Sd/- **P.B.SURESH KUMAR JUDGE** Sd/- **C.S.SUDHA JUDGE** ami/Jms **10** ## **W.P.(Crl.) No.517 of 2023** ## **APPENDIX OF WP(CRL.) 517/2023** |**PETITIONER EXHIBITS**|| |---|---| |**Exhibit P1**|**A TRUE COPY OF THE REPORT OF THE 4TH**| ||**RESPONDENT DISTRICT POLICE CHIEF -**| ||**KOLLAM RURAL DATED 29.12.2022**| |**Exhibit P2**|**A TRUE COPY OF THE ORDER OF THE 3RD**| ||**RESPONDENT DATED 28.02.2023**| |**Exhibit P3**|**A TRUE COPY OF THE REPRESENTATION OF THE**| ||**PETITIONER BEFORE THE 1ST RESPONDENT**| ||**DATED 12.03.2023**| |**Exhibit P4**|**A TRUE COPY OF THE PETITIONER'S**| ||**HUSBAND'S REPRESENTATION DATED NIL**| ||**BEFORE THE 2ND RESPONDENT ADVISORY BOARD**| |**Exhibit P5**|**A TRUE COPY OF THE G.O. (RT) NO.**| ||**1108/2023/HOME PASSED BY THE 1ST**| ||**RESPONDENT DATED 28.04.2023**|