Salmathe v. State of Kerala and Ors.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV & THEHONOURABLEMR.JUSTICEG.GIRISH MONDAY,THE22[ND]DAYOFJULY2024/31STASHADHA,1946 ``` ``` WP(CRL.)NO.711OF2024 ``` ``` PETITIONER: ``` ``` SALMATHE AGED23YEARS W/O.NIYAS,BILALMANZIL, ARATTUPUZHANORTH,ALAPPUZHA, PIN-690515 ``` ``` BYADVS. M.H.HANIS P.M.JINIMOL T.N.LEKSHMISHANKAR NANCYMOLP. ANANDHUP.C. NEETHU.G.NADH CIYAE.J. ``` ## **`RESPONDENTS:`** |**`1`**|**`STATE OF KERALA`**| |---|---| ||**`REPRESENTED BY THE ADDITIONAL CHIEF`**| ||**`SECRETARY TO GOVERNMENT, HOME AND VIGILANCE`**| ||**`DEPARTMENT, GOVERNMENT SECRETARIAT,`**| ||**`THIRUVANANTHAPURAM, PIN - 695001`**| |**`2`**|**`THE DISTRICT COLLECTOR & DISTRICT`**| ||**`MAGISTRATE`**| ||**`KOLLAM DISTRICT, PIN - 691013`**| |**`3`**|**`THE DISTRICT POLICE CHIEF`**| ||**`KOLLAM RURAL, KOLLAM DISTRICT, PIN - 691001`**| |**`4`**|**`THE CHAIRMAN`**| ||**`ADVISORY BOARD, KAAPA, SREENIVAS, PADAM`**| ||**`ROAD, VIVEKANANDA NAGAR, ELAMAKKARA,`**| ||**`ERNAKULAM DISTRICT, PIN - 682026`**| W.P (Crl.) No. 711 of 2024 :2: ``` 5THESUPERINTENDENTOFJAIL CENTRALJAIL,VIYYUR,THRISSURDISTRICT, PIN-670004 ``` ``` BYADVS. ``` ``` ADVOCATEGENERALOFFICEKERALA ADDL.DIRECTORGENERALOFPROSECUTION(AG-11) ``` ## **`SRI ANAZ K A, PUBLIC PROSECUTOR`** ``` THISWRITPETITION(CRIMINAL)HAVINGCOMEUPFOR ADMISSIONON22.07.2024,THECOURTONTHESAMEDAY DELIVEREDTHEFOLLOWING: ``` W.P (Crl.) No. 711 of 2024 :3: ## **`‘` CR’** ## **J U D G M E N T** ## **Raja Vijayaraghavan, J.** The petitioner is the wife of Niyas @ Kolli Niyas, who is undergoing detention pursuant to Ext.P1 order of detention issued by the 2nd respondent under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (‘KAAPA’ for brevity). By Ext.P2 order, the 1st respondent has confirmed the order of detention under Section 10 (4) of the KAAPA, after securing the opinion of the Advisory Board. Exts.P1 and P2 orders are under challenge in this writ petition. ## 2. **Short facts:** - a) By an order dated 1.6.2022, a detention order under Section 3(1) of the KAAPA had earlier been passed against the detenu and he was detained in custody from 4.6.2022 for six months. After release from detention, the car in which the detenu was travelling was intercepted and on search, he was found in possession of 2.250 gms of MDMA and 15 gms of Ganja. On the allegation that it was intended for sale, the Kollam Excise Enforcement and Anti-Narcotic Squad registered Crime No. 54 of 2023 on 26.6.2023 under Section 22(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985. Immediately W.P (Crl.) No. 711 of 2024 :4: thereafter, the sponsoring authority submitted a report on 2.8.2023 seeking to initiate proceedings under the KAAPA against the detenu by classifying him as a ‘known Goonda’, on the premise that he is a drug offender. While the proceedings were pending, the detenu got involved in Crime No. 1475/2023 for offences punishable inter alia under Section 307 of the IPC. The Crime was registered on 14.09.2023 and the detenu was arrested on 05.10.2023. Immediately thereafter, the sponsoring authority submitted an additional report on 10.10.2023 pointing out the involvement of the detenu in an offence falling under Chapter XVI of the IPC and requested for classification of the detenu as a ‘Known Rowdy’. In the report, the Superintendent of Police forwarded the list of cases in which the detenu was involved during the past 7 years. It is stated in the report that the subsequent conduct of the detenu in getting himself involved in crimes after the earlier order of detention will trigger and maintain a live link with the earlier prejudicial activity. It is also stated that unless action is taken under the KAAPA, the detenu shall continue to indulge in anti-social activities. The details of the crimes in which the detenu got himself which was used for categorizing the detenu as a ‘known rowdy’ are as under: W.P (Crl.) No. 711 of 2024 :5: |**Sl.**<br>**No.**|**Crime No.and**<br>**status of**<br>**accused**|**Police Station **|**Crime Date**|**Sections involved**|**Status of**<br>**case**| |---|---|---|---|---|---| |1|582/18 ( A1)|Kilikolloor|24/08/18|143, 147, 148, 294 (b),<br>323, 324, 326, 341,342,<br>308, 149 of IPC.|Final report is<br>laid and<br>pending as SC<br>1475/21| |2|1645/19 (A2)|Kundara|28/07/19|294(b), 323, 324,<br>506(ii), 307 & 34 of IPC.|SC<br>1055/21,| |3|2035/19 (A1)|Kundara|13/09/19|294(b), 324, 506(ii),<br>307 & 34 of IPC|SC<br>939/21,| |4|1507/20 (A1)|Kilikolloor|11/08/20|294(b), 394 of IPC|CC<br>3426/20| |5|462/21 (A1)|Kannanalloor|22/07/21|143, 147, 148, 294(b),<br>323, 324, 341, 308,149 of<br>IPC|SC 1314/22,| |6|1136/21 ( A1)|Kundara|13/07/21|294 (b), 341, 323, 324,<br>34 of IPC|CC 2/22,| |7|197/22 ( A1)|Kilikolloor|1/03/22|341, 294 (b), 323, 324,<br>506, 34 of IPC|CC 427/22,| |8|188/22 (A4)|Kollam East|5/03/22|294(b), 324, 326, 307,<br>143, 147, 148, 149 of IPC<br>& Sec 27 of Arms Act|SC 111/23,| |9|54/23 (A1)|Kollam Excise|26/06/23|22(b)& 20(b)(ii)A<br>of NDPS Act|Under<br>Investigation| |10|1475/23 ( A5)|Kottiyam|14/09/23|341, 294(b), 506, 324,<br>326, 307, 212, 34 of IPC|Under<br>Investigation| Sl. Nos. 9 and 10 are the cases in which the detenu got himself involved after being released from detention. b) It is further stated that out of the ten crimes, nine of the crimes are W.P (Crl.) No. 711 of 2024 :6: cases falling within the purview of Section 2(t) of the KAAPA. It was mentioned in the report that the detenu after being released in Crime No.54/2023 by the bail order dated 22.8.2023, had got himself involved in the last crime on 14.9.2023. As the cases falling under Sl. Nos. 9 and 10 were under investigation, the records of the case including the FIR, Statement of witnesses, report of identification of accused, the role attributed to various accused, the statement of injured, the wound certificate, the remand application, and also the affidavit of the investigating officer were submitted. As the accused was under judicial custody, the awareness of the detaining authority of the same and the likelihood of the detenu being released were also apprised. The detaining authority on the basis of the above report has passed the order of detention on 21.10.2023. ## 3. **The contention of the petitioner:** a) Sri.M.H.Hanis, the learned counsel appearing for the petitioner submitted that though in the report of sponsorship, the request was for classifying the detenu as a ‘known goonda’, the order was passed classifying the detenu as a ‘known rowdy’. Crime No.54 of 2023 is for violation of the provisions of the NDPS Act and the said crime cannot be used to classify the detenu as a ‘known rowdy’. b) Crime No. 54 of 2023 and Crime No. 1475 of 2023 are under W.P (Crl.) No. 711 of 2024 :7: investigation. Though in **Stenny Aleyamma Saju v. State of Kerala and Ors.[1]** , a Full Bench has held that the filing of a final report under Section 173 (2) of the Cr. P.C. is not a prerequisite to invoke the power under Section 3 of the KAAPA, it has been clarified that mere registration of the FIR is not enough, and something more is necessary to meet the requirements under the statute, to record the objective as well as subjective satisfaction. In the case on hand, no such materials were brought to the notice of the detaining authority. The police have not yet obtained the report from the scientific lab to conclusively establish that the contraband seized was MDMA or Ganja. c) Relying on the law laid down in **Luciya Francis v. State of Kerala[2]** , it is submitted that the mere possession of a narcotic substance cannot be construed as part of stock unless it is manifested with evidence of intention to sell. Mere possession of narcotic drugs, according to the learned counsel, cannot be classified as acts affecting public order. - d) In Crime No. 1475 of 2023, the detenu has no direct involvement and he has been roped in as the 5th accused. The overt acts are all against accused Nos. 1 to 4 and 7. The only allegation is that it is at > 1 [2017 (3) KHC 517] > 2 [2023 (5) KHC 255] W.P (Crl.) No. 711 of 2024 :8: the instance of the detenu that the other accused had attacked the victim. The said case could not have been reckoned for classifying the detenu as a ‘known rowdy’. - e) When the detention order was passed, the detenu was in judicial custody in Crime No. 1475 of 2023. If that be the case, the detaining authority ought to have applied its mind to determine whether an order of detention was warranted in the detenu's case. - f) Under Section 12 of the KAAPA, a person may be detained for a period that may extend up to a maximum of one year in the case of a subsequent detention order. However, the detaining authority is required to apply its mind before ordering detention for the maximum period. In the case on hand, no such exercise has been carried out. - g) Finally, it is submitted that the cases in which the detenu is involved do not involve activities that are prejudicial to the maintenance of public order. ## 4. **Response of the State:** Sri. K.A. Anaz, the learned Senior Public Prosecutor, submitted that the assertions made by the learned counsel cannot be accepted. Relying on the law laid down in **Pesala Nookaraju v. Govt. of** W.P (Crl.) No. 711 of 2024 :9: **Andra Pradesh and Ors.[3]** , it is submitted that the detaining authority has subjectively satisfied that the prejudicial activity committed by the detenu falls within the ambit of anti-social activity as defined under section 2(a) of the KAAPA. Reliance was placed on ten cases, out of which 9 cases fall within the ambit of cases falling within Section 2(t) of the KAAPA. One of the cases involved a drug offence which is also an anti-social activity. Reliance is placed on the observations made by a Full Bench of this Court in **Radhika B. v. State of Kerala and Ors.[4]** , where it is submitted that the prejudicial activities that were reckoned for an earlier detention order can be counted, provided the live link to issue another order of detention exists. Insofar as Crime No. 1475 of 2023 is concerned, the investigation revealed that the detenu had enmity towards the injured in the said case as he believed that he was caught by the Excise Squad in the earlier crime based on information furnished by the injured. The investigation revealed the involvement of the detenu. All the records relating to the said crime were also forwarded to the detaining authority to enable the said authority to satisfy itself as to whether the detention was warranted. Placing reliance on the law laid down in **Vijay Kumar v Union of India & Ors.[5]** , it is submitted > 3 [(2023) SCC OnLine SC 1003] > 4 [2015 (2) KHC 183] 5 > [(1988) 2 SCC 57] W.P (Crl.) No. 711 of 2024 :10: that this Court will not be justified in deciding whether the maximum period of detention could have been imposed against the detenu. 5. We have considered the submissions advanced. ## 6. **Whether the classification of the detenu as a ‘known rowdy’** ## **is in order?** From the materials before us, we find that the detenu has got himself involved in ten criminal cases during the period from 2018 to 2023. An earlier order of detention was passed against him on 1.6.2022 and he had undergone detention for six months. It was after his release from detention that he got himself involved in CR.No. 54 of 2023 for dealing with MDMA and Ganja. It was at that stage that the report of sponsorship was submitted by the Superintendent of Police seeking to classify the detenu as a ‘known goonda’. However, before the detention order was passed, the detenu got involved in Crime No. 1475 of 2023 registered inter alia under Section 307 of the IPC. Of course, the detenu is arrayed as the 5th accused. We find from the detention order that all the records in connection with the crime were forwarded to the detaining authority by the sponsoring authority showing the prominent role of the detenu in the aforesaid crime. It was after noting his involvement in the said crime, that a subsequent report was submitted before the authority seeking to classify him as a W.P (Crl.) No. 711 of 2024 :11: ‘Known Rowdy’ as defined under Section 2(p)(iii) of the KAAPA. In the facts and circumstances, we do not think that there is any violation of procedure in adopting such a course. ## 7. **Whether Crime No. 54 of 2023 registered under the NDPS Act** ## **liable to be excluded?** - a) The first contention raised by the petitioner is that in view of the law laid down in **Luciya Francis** (supra), mere possession of a narcotic substance cannot be construed as part of stock unless it is manifested with an intention to sell. He contends that what has been seized from his possession is 2.225 gms of MDMA. It is his contention that the possession of such a small quantity cannot be reckoned as for sale and can only be for personal consumption. Profuse reliance is placed on the observation in **Luciya** (supra), wherein this Court had observed that the word “stocks” occurring in Section 2(i) of the KAAPA must be in such a nature that the same is kept in possession for sale and not for personal use. - b) We are unable to accept the contention of the learned counsel that the MDMA kept in his possession has to be regarded for personal consumption and not for sale. The detenu was found in possession of 2.2250 gms of MDMA. MDMA (3-4 methylenedioxy-Nmethamphetamine) is a synthetic, psychoactive drug with a W.P (Crl.) No. 711 of 2024 :12: chemical structure similar to the stimulant methamphetamine and the hallucinogen mescaline. MDMA is an illegal drug that acts as both a stimulant and psychedelic, producing an energizing effect, as well as distortions in time and perception and enhanced enjoyment from tactile experiences (See: https://www.drugs.com/illicit/mdma.html). c) Section 21 of the NDPS Act provides for punishment for contravention in relation to manufactured drugs and preparations. Under Section 27 of the Act, the punishment is provided for the consumption of any narcotic drug or psychotropic substance. The said provision provides that where the narcotic drug or psychotropic substance consumed is cocaine, morphine, diacetylmorphine, or any other narcotic drug or any psychotropic substance as may be specified on this behalf by the Central Government by notification in the Official Gazette, it is punishable with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both. However, where the narcotic drug or psychotropic substance is other than those specified under Section 27, the possessor can be sentenced to imprisonment for a term which may extend to six months or with a fine which may extend to W.P (Crl.) No. 711 of 2024 :13: Rs.10,000/- or with both. In other words, MDMA cannot be legally possessed by a person for his personal use as well. - d) The specific contention of the petitioner is that the word ‘possession’ is not included while defining drug offenders under Section 2(i) of the KAAPA. This question was considered by a Division Bench of this Court in **Ashraf v. Inspector General of Police, Kochi Range[6]** , wherein the same contention was raised and the same was repelled by holding as under: 2.…………….The allegations against the petitioner in those cases, as rightly noted by the Advisory Board, fall squarely under S.2(i), S.2(j) and consequently under S.2(o)(ii) of KAAPA. Noticing the substance of the allegations of those cases, the plea of the petitioner that mere possession would not attract those provisions was rightly repelled by the Advisory Board. 'Possession' is necessarily an inseparable component of any or all of the activities of stocking, transportation, sale or distribution. Hence, the mere absence of the word 'possession' in the definition of the term 'drug - offender' in KAAPA is not decisive to exclude a person found to be in possession of any drug in contravention of the Narcotic Drugs and Psychotropic Substances Act or in contravention of any other law for the time being in force, from the ambit of 'drug - offender' as defined in S.2(i) of KAAPA and therefore from the purview of the terms 'goonda' and 'known - goonda' defined respectively in Clauses (j) and (o) of S.2 of KAAPA. This is the law. The petitioner's plea that in the absence of the word 'possession' in those definition clauses, he cannot be covered by a restraint order under > 6 [2014 (3) KHC 695] W.P (Crl.) No. 711 of 2024 :14: KAAPA has, therefore, been rightly repelled by the Advisory Board. e) The very same issue had cropped up for consideration before this Court in **Ansar T.A. V. State of Kerala and Ors.[7]** , and after noticing the observations in **Ashraf** (supra) had observed as follows in paragraph No. 8 of the judgment: “8. ……………….In the solitary case registered under S.27 of the Arms Act, the allegation is that he was found consuming ganja in the open. We are unable to accept the contention of the counsel that the aforesaid crimes cannot be taken into account to characterize the petitioner as a "known goonda". The contention appears to be that possession of ganja is not included in S.2(i) of the KAAPA which defines a drug offender and in that view of the matter, he cannot be termed as a goonda. We are unable to agree. S.2(i) of the KAAPA clearly defines a "drug offender" as one who illegally cultivates, manufactures, stocks, transports, sells or distributes any drug in contravention of the NDPS Act, 1985 or in contravention of any other law for the time being in force, or who knowingly does anything by abetting or facilitating such activity. Being found in possession of a narcotic drug would definitely attract the vice of S.2(i) of the KAAPA, as the definition is couched in such wide language. Even a person who acts in contravention of any other law relating to Narcotic Drug or a person who abets or facilitates activity in drugs will fall within the ambit of the term "drug offender" as defined. Further, each of the activity in S.2(i) of the KAAPA would take in possession of the Narcotic Substance as well. As held by this Court in Ashraf v. Inspector General of Police, 2014 (3) KHC 695, the mere absence of the > 7 [2017 (2) KHC 413] W.P (Crl.) No. 711 of 2024 :15: word "possession" in the definition of the term "drug offender" in KAAPA is not decisive to exclude a person found to be in possession of any drug in contravention of the NDPS Act, 1985 or any other law for the time being in force. We are therefore not impressed with the said contention and the same is rejected.” - f) Under the NDPS Act, a small quantity of MDMA is 0.5 gms and the commercial quantity is 10 gms. The specific case of the prosecution as per the case records is that the detenu had kept in his possession MDMA and Ganja for the purpose of sale. In that view of the matter, the contention of the learned counsel that the petitioner was possessing MDMA for his own use and the same cannot be reckoned for initiating proceedings against him cannot be accepted. **Luciya** (supra) was rendered in the facts of the said case and the observations therein cannot be made applicable to the instant case. ## 8. **Whether acts committed by the detenu are prejudicial to the maintenance of public order?** - a) We do not think that the contention of the detenu that the crimes involve only law and order violations and cannot be categorized as - acts that are prejudicial to public order deserves to be accepted. The Apex Court in **Pesala Nookaraju** (supra), after adverting to all the past precedents, including **Dr. Ram Manohar Lohia v. State** W.P (Crl.) No. 711 of 2024 :16: **of Bihar,[8]** . **Pushkar Mukherjee v. The State of West Bengal[9]** , **Dipak Bose alias Naripada v. State of West Bengal[10]** , **Arun Ghosh v. State of West Bengal[11]** , **Commissioner of Police v. C. Anita (Smt.)[12]** , held as under: “65. Thus, from the various decisions referred to above, it is evident that there is a very thin line between the question of law and order situation and a public order situation, and some times, the acts of a person relating to law and order situation can turn into a question of public order situation. What is decisive for determining the connection of ground of detention with the maintenance of public order, the object of detention, is not an intrinsic quality of the act but rather its latent potentiality. Therefore, for determining whether the ground of detention is relevant for the purposes of public order or not, merely an objective test based on the intrinsic quality of an act would not be a safe guide. The potentiality of the act has to be examined in the light of the surrounding circumstances, posterior and anterior for the offences under the Prohibition Act. 66. Just because four cases have been registered against the appellant detenu under the Prohibition Act, by itself, may not have any bearing on the maintenance of public order. The detenu may be punished for the offences which have been registered against him. To put it in other words, > 8 [(1966) 1 SCR 709] > 9 [(1969) 1 SCC 10] > 10 [(1973) 4 SCC 43] > 11 [(1970) 1 SCC 98] > 12 [(2004) 7 SCC 467] W.P (Crl.) No. 711 of 2024 :17: if the detention is on the ground that the detenu is indulging in manufacture or transport or sale of liquor then that by itself would not become an activity prejudicial to the maintenance of public order because the same can be effectively dealt with under the provisions of the Prohibition Act but if the liquor sold by the detenu is dangerous to public health then under the Act, 1986, it becomes an activity prejudicial to the maintenance of public order, therefore, it becomes necessary for the detaining authority to be satisfied on material available to it that the liquor dealt with by the detenu is liquor which is dangerous to public health to attract the provisions of the 1986 Act and if the detaining authority is satisfied that such material exists either in the form of report of the Chemical Examiner or otherwise, copy of such material should also be given to the detenu to afford him an opportunity to make an effective representation. ## xxxx xxxxx xxxx 73. In the case on hand, the detaining authority has specifically stated in the grounds of detention that selling liquor by the appellant detenu and the consumption by the people of that locality was harmful to their health. Such statement is an expression of his subjective satisfaction that the activities of the detenu appellant is prejudicial to the maintenance of public order. Not only that, the detaining authority has also recorded his satisfaction that it is necessary to prevent the detenu appellant from indulging further in such activities and this satisfaction has been drawn on the basis of the credible material on record. It is also well settled that whether the material was sufficient or not is not for the Courts to decide by applying W.P (Crl.) No. 711 of 2024 :18: the objective basis as it is matter of subjective satisfaction of the detaining authority.” - b) The true distinction between the areas of “public order” and “law and order” lies not in the nature or quality of the act, but in the degree and extent of its reach upon society. The distinction between the two concepts of “law and order” and “public order” is a fine one but this does not mean that there can be no overlapping. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore touch the problem of law and order, while in another it might affect public order. The act by itself, therefore, is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order (See: ## **Ashok Kumar v Delhi Administration and others[13]** ) - c) The prejudicial activities of the detenu leading to public disorder, as revealed in the grounds of detention, consist of a consistent course of criminal conduct. Although the criminal activities of the detenu in the past pertained mostly to breaches of law and order, they have now taken a turn for the worse. This is not a case of a single activity directed against a single individual. There have been a series of > 13 [AIR 1982 SC 1143] W.P (Crl.) No. 711 of 2024 :19: criminal activities on the part of the detenu and his associates during a span of five years. It is the length, magnitude and intensity of the terror wave unleashed by a particular act of violence creating disorder that distinguishes it as an act affecting public order from that concerning law and order. Some offences primarily injure specific individuals and only secondarily the public interest, while others directly injure the public interest and affect individuals only remotely. The particular acts enumerated in the grounds of detention clearly show that the activities of the detenu cover a wide field and fall within the contours of the concept of public order. [See: **Ashok Kumar** (supra)]. - d) In the instant case, the detaining authority, based on the involvement of the detenu for offenses which include at least three cases of attempt to murder, attempt to commit culpable homicide not amounting to murder, and possession of prohibited narcotic drugs and substances, was subjectively satisfied itself that his actions are prejudicial to the maintenance of public order and it is necessary to invoke provisions under the Act to prevent the detenu from indulging further in such anti-social activities. "Anti-social activity" has been defined under the KAAPA to mean acting in such manner as to cause or is likely to cause, directly or indirectly, any feeling of insecurity, danger, or fear among the general public or any section thereof, or W.P (Crl.) No. 711 of 2024 :20: any danger to the safety of individuals, the safety of the 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), (l), (m), (n), (q), 1[(qb)] and (s) of Section 2. The detaining authority has specifically stated in the grounds of detention that the detenu is indulging in serious anti-social activities and such a statement is an expression of its subjective satisfaction that the activities of the detenu are prejudicial to the maintenance of public order. The detaining authority has also recorded its satisfaction that it is necessary to prevent the detenu from indulging further in such activities and this satisfaction has been drawn on the basis of the credible material on record. Whether the materials are sufficient or not is not for the Courts to decide by applying the objective basis as it is a matter of subjective satisfaction of the detaining authority. ## **-** 9. **Alleged non production of the relevant documents, if fatal:** The contention that except for the registration of the crime, the materials showing the involvement of the detenu were not placed before the detaining authority cannot be accepted. The records clearly disclose that the Superintendent of Police had placed all the records including the FIS, FIR, statement of the informant, injured W.P (Crl.) No. 711 of 2024 :21: and witnesses, report identifying each accused, Mahazars, wound certificates, and the affidavit of the investigating officer to show the involvement of the detenu. In that view of the matter, the guidelines issued by the Full Bench in **Stenny** (supra) have been complied with. ## **-** 10. **Whether there is non application of mind in ordering the maximum period of detention?** - a) The contention of the petitioner is that while issuing the subsequent detention order, the detaining authority ought to have applied its mind and considered whether the maximum period of detention ought to have been imposed. Much reliance is placed on the observations made by this Court in **Rema Vijayalal v. State of Kerala[14]** to substantiate his contention. - b) In **Dattatraya Moreshwar Pangarkar v. State of Bombay[15]** , the Apex Court has held that the duration for which a detenu is to be kept in detention is for the detaining authority to decide and not the Advisory Board. The said opinion finds approval in the decision of the Constitution Bench of the Apex Court in **A.K. Roy v. Union of India[16]** . The period of detention and the terminal point has, > 14 [2024 (2) KHC 118] > 15 [(1952) 1 SCC 372] > 16 [(1982) 1 SCC 271] W.P (Crl.) No. 711 of 2024 :22: therefore, to be decided by the Government. - c) Section 12 of the KAAPA deals with the maximum period of detention. The said provision reads as under: “In pursuance of the first detention order made against any person under this Act and confirmed under Section 10, he may be detained for a period which may extend up to six months from the date of the detention and in pursuance of such subsequent detention order made against such person, he may be detained for a period which may extend up to a maximum of one year.” - d) Section 10 of the Conservation of Foreign and Prevention of Smuggling Activities Act, 1974 has identical provisions, which read as under: “Section 10: Maximum period of detention.—The maximum period for which any person may be detained in pursuance of any detention order to which the provisions of Section 9 do not apply and which has been confirmed under clause (f) of Section 8 shall be a period of one year from the date of detention or the specified period, whichever period expires later and the maximum period for which any person may be detained in pursuance of any detention order to which the provisions of Section 9 apply and which has been confirmed under clause (f) of Section 8 read with sub-section (2) of Section 9 shall be a period of two years from the date of detention or the specified period, whichever period expires later: W.P (Crl.) No. 711 of 2024 :23: Provided that nothing contained in this section shall affect the power of the appropriate Government in either case to revoke or modify the detention order at any earlier time.” - e) In **Vijayakumar v. Union of India[17]** , a contention was taken before the Supreme Court that while passing an order of detention, the Government had not applied its mind, while confirming the detention of the detenu for the maximum period of one year from the date of detention, as prescribed in Section 10 of the Act. It was also contended that some reason ought to have been given, as to why the maximum period of detention is imposed. While repelling the said contention, the Apex Court in Paragraph 29 of the judgment had observed as under: “29. The last point that has been urged on behalf of the appellant is that the Government has not applied its mind while confirming the detention of the appellant for the maximum period of one year from the date of detention as prescribed in Section 10 of the Act. It is submitted that some reason should have been given why the maximum period of detention is imposed on the appellant. This contention, in our opinion, is devoid of any merit. Section 10 of the Act provides, inter alia, that the maximum period for which any person may be detained in pursuance of any detention order shall be a period of one year from the date of detention or the specified period. Section 10 does not provide that in imposing the maximum period of detention, > 17 [(1988 KHC 924)] W.P (Crl.) No. 711 of 2024 :24: any reason has to be given. In confirming the order of detention, it may be reasonably presumed that the government has applied its mind to all the relevant facts and, thereafter, if it imposes the maximum period of detention, it cannot be said that the Government has not applied its mind as to the period of detention. In any event, under Section 11 of the Act, a detention order may, at any time, be revoked or modified by the Government. In the circumstances, we do not think that the detenu was in the least prejudiced or that there has been non-application of mind by the Government to the question of period of detention of the detenu. This contention of the appellant also fails. No other point has been urged in this appeal.” In the concurring opinion, it was observed in paragraph no.38 as under: “38. If the Advisory Board reports that there is in its opinion sufficient cause for the detention of the person, the concerned authority may confirm and continue the detention of the person for such period as it thinks fit. The expression “as it thinks fit” in Section 8(f) of the Act indicates that the concerned authority after considering the report of the Advisory Board may fix any period for detention. The authority is not required to give any special reason either for fixing a shorter period or for fixing the maximum period prescribed under Section 10. The opinion of the Advisory Board and the grounds of detention are the only basis for confirming and continuing the detention, for any period, even up to the maximum period prescribed. Section 11 provides for revocation of detention order. The detention order may at any time be revoked or modified. W.P (Crl.) No. 711 of 2024 :25: When the power to revoke the order of detention could be exercised at any time, it is not necessary for the authority to articulate special reasons for continuing the detention for any period much less for the maximum period prescribed under the Act.” It was held that the authority is not required to give any special reason either for fixing a shorter period or for fixing the maximum period prescribed under the statute. The opinion of the Advisory Board and the grounds of detention are the only basis for confirming and continuing the detention, for any period, even up to the maximum period prescribed. The Act also provides for revocation of the detention order and says that the detention order may at any time be revoked or modified. When the power to revoke the order of detention could be exercised at any time, it is not necessary for the authority to articulate special reasons for continuing the detention for any period much less for the maximum period prescribed under the Act. f) Recently, in **Ameena Begam v. State of Telangana and Ors.[18]** , the Apex Court after referring to the law laid down in **Vijayakumar** (supra), held that the objective sought to be fulfilled in each case, whether sub-served by continuing detention for the maximum period, ought to bear some reflection in the > 18 [(2023) 9 SCC 587] W.P (Crl.) No. 711 of 2024 :26: order of detention. However, the Apex Court refrained from pronouncing that an order of detention, otherwise held legal and valid, could be invalidated only on the ground of absence of any indication therein as to why the detention has been continued for a maximum period. It was observed in paragraph 79 of the judgment as under: “79. Viewed reasonably, the period of detention ought to necessarily vary depending upon the facts and circumstances of each case and cannot be uniform in all cases. The objective sought to be fulfilled in each case, whether is subserved by continuing detention for the maximum period, ought to bear some reflection in the order of detention; or else, the Government could be accused of unreasonableness and unfairness. Detention being a restriction on the invaluable right to personal liberty of an individual and if the same were to be continued for the maximum period, it would be eminently just and desirable that such restriction on personal liberty, in the least, reflects an approach that meets the test of Article 14. We, however, refrain from pronouncing here that an order of detention, otherwise held legal and valid, could be invalidated only on the ground of absence of any indication therein as to why the detention has been continued for the maximum period. That situation does not arise here and is left for a decision in an appropriate case.” g) In **Ameena Begum** (supra), though **Vijay Kumar** (supra) was noticed, the question of whether in the absence of any indication W.P (Crl.) No. 711 of 2024 :27: therein as to why the detention has been continued for the maximum period of 12 months was not decided. While rendering **Rema Vijayalal** (supra), **Vijay Kumar** (supra) was not brought to the notice of their Lordships. We are bound by the observations of the Apex Court in **Vijay Kumar** (supra). - h) It is well settled that subjective satisfaction entertained by the detaining authority is not justiciable. This Court does not sit in appeal in proceedings under Article 226 of the Constitution of India over the decisions taken by the detaining authority on the basis of the materials placed before the detaining authority as to whether preventive detention is necessary or warranted. The short area of jurisdiction is to ascertain whether subjective satisfaction is entertained properly on the basis of materials placed before the detaining authority. If the entertainment of the latter subjective satisfaction is vitiated by mala fides or by total absence of materials or by reference to and reliance on materials which cannot legally be taken note of, certainly the powers of judicial review vested in this Court can be invoked and the order of detention on the basis of such alleged subjective satisfaction can be set aside. But, certainly, if there are materials, it is not open to this Court to sit in appeal over the subjective satisfaction entertained by the detaining authority. (See: **Ibrahim Bachu** W.P (Crl.) No. 711 of 2024 :28: ## **Bafan and Another v. State of Gujarat and Another[19]** ). Having considered the entire facts, we are of the view that the detenu has not made out any case for interference. This Writ Petition is dismissed. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** Sd/- IAP **GIRISH.G JUDGE** > 19 [1985 (2) SCC 24)] W.P (Crl.) No. 711 of 2024 :29: ## **`APPENDIX OF WP(CRL.) 711/2024`** ## **`PETITIONER’S EXHIBITS:`** |**`Exhibit `**|**`P1`**|**`A`**<br>**`TRUE`**<br>**`COPY`**|**`OF`**<br>**`ORDER`**|**`NO.`**| |---|---|---|---|---| |||**`DCKLM/10174/2023-M-16`**|**`DATED`**<br>**`21.10.2023`**|| |||**`OF THE 2ND RESPONDENT`**||| |**`Exhibit `**|**`P2`**|**`A`**<br>**`TRUE`**<br>**`COPY`**<br>**`OF`**|**`THE`**<br>**`G.O(RT).`**|**`NO.`**| |||**`3510/2023/HOME DATED `**|**`01.12.2023`**||