Sheeja v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 2ND DAY OF FEBRUARY 2016/13TH MAGHA, 1937 WP(Crl.).No.513 of 2015 (S) ----------------------------- ## PETITIONER(S)/PETITIONER: -------------------------------------- SHEEJA, AGED 28 YEARS W/O.JOHNSON, PANDARAVILA VEEDU, ERIKKALUVILA, POOVAR DESAM, THIRUPURAM VILLAGE THIRUVANANTHAPURAM DISTRICT. BY ADVS.SRI.C.RAJENDRAN SRI.K.R.RANJITH ## RESPONDENT(S)/RESPONDENTS: --------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE ADDL. CHIEF SECRETARY TO GOVERNMENT OF KERALA (HOME DEPARTMENT) GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695001. 2. DISTRICT MAGISTRATE THIRUVANANTHAPURAM DISTRICT-695001. 3. DISTRICT POLICE CHIEF THIRUVANANTHAPURAM, RURAL DISTRICT, THIRUVANANTHAPURAM-695001. 4. SUB INSPECTOR OF POLICE POOVAR POLICE STATION THIRUVANANTHAPURAM DISTRICT-695001. 5. THE SUPERINTENDENT CENTRAL PRISON, THIRUVANANTHAPURAM-695001. W.P.(CRL.) NO.513/2015 ## 6. THE SUPERINTENDENT CENTRAL PRISON, VIYYOOR, THRISSUR-680010. R1,R 2 -R 3 BY ADV. GOVERNMENT PLEADER R BY STATE ATTORNEY ADGP SRI.K.I.ABDUL RASHEED THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 02-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(Crl.).No. 513 of 2015 (S) ----------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ---------------------------------- EXHIBIT P1- A TRUE PHOTOCOPY OF THE SAID DETENTION ORDER SERVED ON THE DETNU DATED 05-10-2015. EXHIBIT P2- THE GROUNDS FOR THE DETENTION SERVED ON THE DETENU. EXHIBIT P3- A TRUE PHOTOCOPY OF THE REPORT OF THIRD RESPONDENT DATED 20-9-15. EXHIBIT P4- A COPY OF THE FIR GIVEN TO THE DETENU IN CRIME NO.690/11. EXHIBIT P5- A COPY OF THE STATEMENT OF THE POLICE OFFICER IN NIGHT PATROL PARTY. EXHIBIT P6- A TRUE PHOTOCOPY OF THE F.I.R. IN CRIME NO.694/2011. EXHIBIT P7- A TRUE PHOTOCOPY OF THE WOUND CERTIFICATE OF SRI.ANTO, A POLICE OFFICER GIVEN TO THE DETENU. EXHIBIT P8- A TRUE PHOTOCOPY OF THE WOUND CERITIFICATE OF SELVESTER, ANOTHER POLICE OFFICER GIVEN TO THE DETENU. EXHIBIT P9- COPY OF THE FIR GIVEN TO THE DETENU IN CRIME NO.72/12. EXHIBIT P10- A COPY OF THE COMPLAINT GIVEN TO THE DETENU. EXHIBIT P11- A COPY OF THE FIR GIVEN TO THE DETENU IN CRIME NO.303/12. EXHIBIT P12- A COPY OF THE INCOMPLETE FIS GIVEN TO THE DETENU. EXHIBIT P13- COPY OF THE FIR GIVEN TO THE DETENU IN CRIME NO. 415/12. EXHIBIT P14- COPY OF THE FIR GIVEN TO THE DETENU IN CRIME NO. 706/13. EXHIBIT P15- A COPY OF THE FIR GIVEN TO THE DETENU IN CRIME NO. 807/13. EXHIBIT P16- A COPY OF COPY OF THE INCOMPLETE FIR GIVEN TO THE DETENU IN CRIME NO. 47/2015. EXHIBIT P17- THE COPY OF THE FIR GIVEN TO THE DETENU IN CRIME NO. 379/15. EXHIBIT P18- COPY OF THE FIR GIVEN TO THE DETENU IN CRIME NO. 1503/15. EXHIBIT P19- COPY OF THE APPROVAL ORDER DATED 15-10-2015. W.P.(CRL.) 513/2015 EXHIBIT P20- A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 22-10-2015. EXHIBIT P21- COPY OF THE ORDER REJECTING REPRESENTATION DATED 30-10-2015. RESPONDENT(S)' EXHIBITS : ------------------------------------- NIL //TRUE COPY// P.A. TO JUDGE ## **K.T.SANKARAN & K.P.JYOTHINDRANATH, JJ.** -------------------------------------- W.P.(Crl) No.513 of 2015 S -------------------------------------Dated this the 2[nd] day of February, 2016 ## _**JUDGMENT**_ _**K.T.Sankaran, J.**_ Johnson @ Karate Johny, the husband of the petitioner, was detained as per Exhibit P1 order of detention dated 5.10.2015 issued by the District Magistrate, Thiruvananthapuram under Section 3(1) of the Kerala AntiSocial Activities (Prevention) Act. The order of detention was executed on 6.10.2015 and it was confirmed on 28.11.2015. The detenu was classified as a known rowdy. Ten cases are referred to in the order of detention. The order of detention shows that out of these ten cases, five cases alone were taken into account for classifying the detenu as a known rowdy. 2. Though several grounds have been raised in the Writ W.P.(Crl) No.513/2015 2 Petition, the learned counsel for the petitioner mainly contended that the Writ Petition is liable to be allowed on a short ground that many of the relied upon documents, copies of which were supplied to the detenu, are illegible. He referred to pages 34 to 42, 51, 56, 57, 62, 65, 66, 68, 69 and 83 of the Writ Petition and contended that those documents are illegible and unreadable. 3. We perused the original files produced by the Additional Director General of Prosecution. It is seen from the original files that pages 59, 69, 71, 86, 107, 109, 110, 111 to 115, 125, 126, 211 and 212 are not readable. It is not necessary to compare each page and correlate with the particular page in the Writ Petition. It is sufficient to say that the illegible documents found in the original file are the documents supplied to the detenu and those documents were produced by the W.P.(Crl) No.513/2015 3 petitioner along with the Writ Petition. 4. In **Smt.Shalini Soni v. Union of India and others (AIR 1981 Supreme Court 431)** , the Supreme Court held that the Constitution and the statute cast a duty on the detaining authority to communicate the grounds of detention to the detenu. The 'grounds' must be self-sufficient and self explanatory. In our view copies of documents to which reference is made in the 'grounds' must be supplied to the detenu as part of the 'grounds'. 5. In **Khudiram Das v. The State of West Bengal and others (1975 (2) SCC 81)** , the Supreme Court held that all the basic facts and particulars which influenced the detaining authority in arriving at the requisite satisfaction leading to the making of the order of detention must be communicated to the W.P.(Crl) No.513/2015 4 detenu, so that the detenu may have an opportunity of making an effective and meaningful representation against the order of detention. 6. The expression “communicate to such person the grounds on which the order has been made” in Article 22(5) of the Constitution of India was considered by the Supreme Court in various decisions. If the copies of documents supplied to the detenu are illegible, it cannot be said that the information contained in those documents were communicated to him. The communication of the relied upon documents is required to enable the detenu to make an effective and meaningful representation. Non-supply of legible copies would make the order of detention illegal and continued detention of the detenu unauthorised. See **Bhupinder Singh v. Union of India and others : (1987) 2 SCC 234)** , **Manjit Singh Grewal** W.P.(Crl) No.513/2015 5 **@ Gogi v. Union of India and others: 1990 (Supp) SCC 59)** , **Lallubhai Jogibhai Patel v. Union of India and others : (1981(2) SCC 427)** , **Icchu Devi Choraria v. Union of India and others : (1980) 4 SCC 531** and **Shalini Soni v. Union of** . **India and others : (AIR 1981 Supreme Court 431)** 7. In W.P.(Crl.) No.458 of 2015 another Division Bench, in which one of us was a member, held thus : _“Under Section 7(2) of the KAAPA, the grounds of detention as well as copies of the relied upon documents shall be supplied to the detenu within five days of detention and he shall also be informed in writing, of his right to represent to the Government and before the Advisory Board against his detention. The detaining authority gets five days' time to supply documents to the detenu after a person is detained and his liberties are curtailed. It is idle for the respondents to contend that the copies of documents supplied to the detenu are somewhat readable or he could gather the idea or certain inference could be made on_ W.P.(Crl) No.513/2015 6 _going through the illegible copies. Before deciding to detain a person, the authorities concerned should make sure that their machinery should be utilised to conform to the legislative as well as the constitutional mandate with respect to the preventive detention. No excuse in that regard can be entertained by the court.”_ 8. In the case on hand, copies of several of the documents referred to and relied upon in the grounds of detention and supplied to the detenu are illegible. Thus there was a failure to communicate the grounds on which the detenu has been detained within the meaning of Article 22(5) of the Constitution of India. Continued detention of the detenu is, therefore, illegal and he is liable to be released forthwith. Accordingly, the Writ Petition is allowed in part and we hold that the continued detention of the detenu is illegal. The 7 W.P.(Crl) No.513/2015 detenu shall be released forthwith, if his detention is not required in respect of any other case. **K.T.SANKARAN JUDGE** **K.P.JYOTHINDRANATH JUDGE** csl W.P.(Crl) No.513/2015 8 ## **K.T.SANKARAN & K.P.JYOTHINDRANATH, JJ.** -------------------------------------- W.P.(Crl) No.513 of 2015 S -------------------------------------Dated this the 2[nd] day of February, 2016 ## _**Gist of the Judgment**_ By the judgment dated 2.2.2016 in W.P.(Crl) No.513 of 2015, we have held that the continued detention of Johnson @ Karate Johny, son of George, Pandaravila Veedu, Erikkaluvila, Poovar Desom, Thirupuram Village, who has been detained in the Central Prison, Viyyur, as per the order No.C.C.98/S.13/Camp/15 dated 5.10.2015 issued by the District Magistrate, Thiruvananthapuram is illegal and that he shall be released forthwith unless his detention is required in respect of some other case. The Superintendent of Jail, Viyyur, shall comply with this direction forthwith and release Johnson W.P.(Crl) No.513/2015 9 @ Karate Johny forthwith, unless his detention is required in respect of some other case. The Registry will communicate the gist of the judgment to the Superintendent of Jail, Viyyur. **K.T.SANKARAN** **JUDGE** **K.P.JYOTHINDRANATH JUDGE** csl W.P.(Crl) No.513/2015 10