Shameerac v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V & THE HONOURABLE MR. JUSTICE G.GIRISH MONDAY, THE 29[TH] DAY OF JULY 2024 / 7TH SRAVANA, 1946`** ## **`WP(CRL.) NO. 680 OF 2024`** ## **`PETITIONER:`** ``` SHAMEERAC AGED48YEARS W/OSIYAD,KUREEKALANJAKARANHOUSE, THANGALVAYAL,VALAPATTANAM,KANNUR, PIN-670010 ``` ## **`BY ADV M.H.HANIS`** ## **`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`**| ||**`KANNUR DISTRICT, PIN - 670002`**| |**`3`**|**`THE DISTRICT POLICE CHIEF`**| ||**`KANNUR CITY,, PIN - 670002`**| |**`4`**|**`THE CHAIRMAN`**| ||**`ADVISORY BOARD, KAAPA, SREENIVAS, PADAM`**| ||**`ROAD, VIVEKANANDA NAGAR, ELAMAKKARA,`**| ||**`ERNAKULAM DISTRICT, PIN - 682026`**| |**`5`**|**`THE SUPERINTENDENT OF JAIL,`**| ||**`CENTRAL JAIL, VIYYUR, PIN - 670004`**| ||**`BY ADVS.`**| ||**`ADVOCATE GENERAL OFFICE KERALA`**| ||**`ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)`**| ``` THISWRITPETITION(CRIMINAL)HAVINGCOMEUPFOR ADMISSIONON29.07.2024,THECOURTONTHESAMEDAY DELIVEREDTHEFOLLOWING: ``` W.P (Crl.) No. 680 of 2024 :2: ## **J U D G M E N T** ## **Raja Vijayaraghavan, J.** The petitioner is the wife of Mohammed Shibas @ Bava, 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). The above order is under challenge in this writ petition. ## 2. **Short facts:** By proposal dated 4.4.2024, the District Police Chief, Kannur, sought the initiation of proceedings against the detenu by classifying him as a ‘Known Goonda’. Acting on the proposal and after satisfying itself, Ext.P1 detention order was issued on 11.4.2024. The order was executed on 18.4.2024 and the same was approved by the Government by order dated 2.5.2024. The matter was referred to the opinion of the Advisory Board and after receiving the same, the confirmation order was passed on 15.6.2024 under Section 10(4) of the KAAPA. The detenu was ordered to be detained for a period of six months. The cases on the basis of which the detention order was passed are the following: W.P (Crl.) No. 680 of 2024 :3: |**Sl.**<br>**No.**|**Crime No.**|**Police Station**|**Complaint**<br>**Date**|**Sections involved**|**Status of**<br>**case**| |---|---|---|---|---|---| |1|992/19|Thalassery|18.09.2017|21(a) of the NDPS Act|Convicted on the<br>accused pleading<br>guilty| |2|387/19|Kannur Town|24.03.2019|21(ii) B, 29 of NDPS Act.|Pending as<br>SC 161/2019| |3|507/21|Kannapuram|03.08.2021|379 IPC|Pending as<br>CC 564/2021| |4|1009/22|Kannur Town|02.08.2022|379 IPC|Pending as<br>CC 1071/22| |5|206/24|Kannur Town|17.2.2024|21(a) of NDPS Act|Investgation| ## 3. **The contention of the petitioner:** Sri.M.H.Hanis, the learned counsel appearing for the petitioner submitted that Crime No. 206 of 2024 registered on 17.2.2024 has been considered to be the last prejudicial act committed by the detenu. In the said case, the accusation is that he was found in possession of 119 mg of Brown Sugar. Relying on the law laid down in **Luciya Francis v. State of Kerala[1]** , it is submitted that mere possession of a narcotic substance would not bring the detenu within the vice of the term ‘Drug Offender’ as defined under Section 2(i) of the KAAPA. Furthermore, the punishment provided for the offence is > 1 [2023 (5) KHC 255] W.P (Crl.) No. 680 of 2024 :4: imprisonment for a period of one year or a fine or both and in such cases, the accused is ordinarily let off on payment of a fine. As the contraband was of a small quantity, it could only have been for own use and consumption and not for sale. The said case therefore ought to have been excluded. If the same is done, the previous crime was allegedly committed on 2.8.2022. There being no live link between the said act and the order of detention, the order was liable to be quashed. It is further submitted that Case Nos. 1 and 2 are similar in nature involving a small quantity of narcotic drugs and the same also ought to have been excluded. It is further submitted that Case Nos. 3 and 4 primarily concern acts that affect law and order for which the ordinary law of the land would suffice. It is further submitted that though the last prejudicial act was committed on 17.02.2024 and the sponsoring authority had submitted the proposal on 04.04.2024, the detention order was issued only on 11.4.2024. The delay of over one month and 24 days in passing the detention order would show that there was no urgent necessity to detain the detenu. It is further submitted that the detaining authority had passed the order imposing the maximum period of detention without proper application of mind. Finally, it is submitted that there is a delay of about 7 days in executing the order of detention. W.P (Crl.) No. 680 of 2024 :5: ## 4. **The response of the learned Government Pleader:** It is submitted that the detenu was involved in five crimes within a span of seven years, and those crimes involved offences under the NDPS Act and the IPC. In one of the crimes, the detenu was convicted, and in three cases, the final report has already been laid. Possession for the purpose of sale of contraband like brown sugar and heroin and offence of robbery are cases that invite classification as a ‘known goonda’ as defined under KAAPA. It is further submitted that there is no delay insofar as the passing of the detention order and its execution are concerned. It is pointed out that the assertion that the detaining authority has not applied its mind while fixing the period of detention cannot be sustained as there is no such requirement to furnish reasons. 5. We have considered the submissions advanced. ## 6. **Whether the classification of the detenu as a ‘known goonda** ## **is in order?** In the case on hand, the detenu has been convicted for an offence under the NDPS Act and in addition final report has been laid in 3 other cases, one of which is registered under the NDPS Act for possession of an intermediate quantity of heroin. He is also involved in a case that is under investigation and registered under the NDPS W.P (Crl.) No. 680 of 2024 :6: Act for having in his possession 119 mg of brown sugar for the purpose of sale. The respondents, therefore, cannot be faulted for arriving at the objective satisfaction that the detenu qualifies to be a ‘known goonda’. ## 7. **Whether Crime No. 206 of 2024 registered under the NDPS Act liable to be excluded?** - a) The first contention raised by the learned counsel appearing for the petitioner is that in view of the law laid down in **Luciya** (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 the possession of the detenu is 119 mg of Brown Sugar. 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) It bears mention that Crime No. 387 of 2019 registered at the Kannur Police Station against the detenu, involved an intermediate quantity of heroin, in which case a final report has been laid. W.P (Crl.) No. 680 of 2024 :7: c) Brown Sugar is a street name for a form of heroin, which is an opioid drug derived from morphine. It is usually less pure than other forms of heroin and often mixed with various other substances. Heroin as well as Brown Sugar are extremely addictive, leading to physical dependence and severe withdrawal symptoms. The impurities and cutting agents used in Brown Sugar can be toxic, leading to serious health problems. Sharing needles can lead to infections such as HIV and hepatitis. Long-term use can result in permanent changes to the brain, affecting decision-making, behavior, and stress response. It can cause or exacerbate mental health issues like depression and anxiety. Chronic use can cause damage to vital organs, including the liver, kidneys, and heart. It weakens the immune system, making the body more susceptible to infections and diseases. Addiction often leads to criminal behaviour to obtain the drug, leading to legal issues and violence. ## d) In **Union of India Vs. Ram Samujh and Ors.[2]** , the Apex Court while considering the issue for grant of bail to persons involved in the trafficking of drugs had stated as under in paragraph 7 of the judgment: - “7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, > 2 [1999 (9) SCC 429] W.P (Crl.) No. 680 of 2024 :8: while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. e) Section 21 of the NDPS Act provides for punishment for contravention in relation to manufactured drugs and preparations. Under Section 27 of the NDPS 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 Rs.10,000/- or with both. In other words, Brown Sugar cannot be legally possessed by a person for his personal use as well. W.P (Crl.) No. 680 of 2024 :9: - f) The specific contention of the learned counsel appearing for the petitioner is that the word ‘possession’ is not included while defining drug offenders under Section 2(i) of the KAAPA and that possession for own consumption cannot lead to the classification of a person as a drug offender. This question was considered by a Division Bench of this Court in **Ashraf v. Inspector General of Police, Kochi Range[3]** , 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 KAAPA has, therefore, been rightly repelled by the Advisory Board. > 3 [2014 (3) KHC 695] W.P (Crl.) No. 680 of 2024 :10: g) The very same issue had cropped up for consideration before this Court in **Ansar T.A. V. State of Kerala and Ors.[4]** , and after noticing the observations in **Ashraf** (supra) had observed as follows in paragraph No. 8 of the judgment: “8. ……………… 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 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.” > 4 [2017 (2) KHC 413] W.P (Crl.) No. 680 of 2024 :11: h) Under the NDPS Act, a small quantity of brown sugar is 5 gms and the commercial quantity is 250 gms. The detenu was found in possession of a small quantity of Brown Sugar. In that view of the matter, the contention of the learned counsel that the detenu was possessing Brown Sugar 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. Furthermore, trafficking in narcotic drugs has serious and deleterious effects on society as a whole and it is for the said purpose that drug offenders have been included in section 2(j) of the KAAPA. ## **-** 8. **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 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[5]** to substantiate his contention. > 5 [2024 (2) KHC 118] W.P (Crl.) No. 680 of 2024 :12: b) In **Dattatraya Moreshwar Pangarkar v. State of Bombay[6]** , 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[7]** . The period of detention and the terminal point has, 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 > 6 [(1952) 1 SCC 372] > 7 [(1982) 1 SCC 271] W.P (Crl.) No. 680 of 2024 :13: (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: 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 **Vijay Kumar v. Union of India and Ors.[8]** , a contention was taken before the Apex 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 No.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 > 8 [(1988 KHC 924)] W.P (Crl.) No. 680 of 2024 :14: 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, 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 W.P (Crl.) No. 680 of 2024 :15: 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. 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.[9]** , > 9 [(2023) 9 SCC 587] W.P (Crl.) No. 680 of 2024 :16: the Apex Court after referring to the law laid down in **Vijay Kumar** (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 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.” W.P (Crl.) No. 680 of 2024 :17: g) In **Ameena Begum** (supra), though **Vijay Kumar** (supra) was noticed, the question of whether in the absence of any indication 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 the 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. W.P (Crl.) No. 680 of 2024 :18: 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 Bafan and Another v. State of Gujarat and Another[10]** ). ## 9. **Whether there is any delay in passing the order of detention?** In the case on hand, the last prejudicial act was committed by the accused on 17.2.2024. The proposal was on 4.4.2024, the detention order was passed on 11.4.2024 and the same was executed on 18.4.2024. The Apex Court in **Licil Antony v. State of Kerala[11]** , while dealing with the question of delay in making the order of detention, had held that the test of proximity is not a rigid or a mechanical test. The same has only to be satisfactorily explained. In the case on hand, we do not find that there is any inordinate delay in passing the detention order. Of course, the order was executed only on 18.4.2024. Under Section 6 of the KAAPA, the steps that are to be taken against absconding persons have been enumerated. However, in the instant case, the same was executed without undue delay and there did not arise any circumstance for initiation of proceedings under Section 6 of the Act. > 11 [(2014) 11 SCC 326] > 10 [1985 (2) SCC 24)] W.P (Crl.) No. 680 of 2024 :19: In view of the discussion above, the petitioner has not made out any case for interference. This Writ Petition is dismissed. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** Sd/- **GIRISH.G JUDGE** APM W.P (Crl.) No. 680 of 2024 :20: ## **`APPENDIX OF WP(CRL.) 680/2024`** ``` PETITIONEREXHIBITS ExhibitP1ATRUECOPYOFTHEORDER NO.DCKNR/5178/2024-SS1DATED 11.04.2024OFTHE2NDRESPONDENT ```