Shyni Ponnappan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 18TH DAY OF JUNE 2019 / 28TH JYAISHTA, 1941** **WP(Crl.).No.139 of 2019** ## **PETITIONER:** **SHYNI PONNAPPAN AGED 29 YEARS W/O.VINEETH SANJAYAN, RESIDING AT MANKEEZHEPADY, AYMANAM.P.O, KOTTAYAM.** ## **BY ADV. SRI.LEGITH T.KOTTAKKAL** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ADDITIONAL CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 DISTRICT MAGISTRATE, KOTTAYAM DISTRICT,KOTTAYAM-686002.** - **3 THE DISTRICT POLICE CHIEF, KOTTAYAM-686002.** - **4 THE SUPERINTENDENT, CENTRAL PRISON,VIYYUR, THRISSUR-680010.** - **5 ADVISORY BOARD, KERALA ANTI SOCIAL ACTIVITIES(PREVENTION)ACT, PADOM ROAD, ELAMAKKARA,KOCHI-26. BY ADDL.DIRECTOR GENERAL OF PROSECUTION SRI ANAS** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 18.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(Crl.).No.139 of 2019** 2 ## **JUDGMENT** ## _Ravikumar, J._ The captioned writ of _habeas corpus_ filed _in re,_ one Vineeth Sanjayan, by his wife Shiny Ponnappan, is directed against the order of detention viz., Ext.P1 passed by the 2[nd] respondent, District Magistrate, Kottayam under Section 3(1) of the Kerala Anti Social Activities (Prevention) Act, 2007 [for brevity ' KAAPA'] and Ext.P9, the order passed by the 1[st] respondent, State Government confirming Ext.P1 in invocation of the power under Section 10(4) of KAAPA. Ext.P5 execution order was issued on 17.09.2018 and the said Vineeth Sanjayan was detained on 17.10.2018 and was served with Ext.P2 grounds of detention. Obviously, Ext.P1 order was passed by the 2[nd] respondent based on Exts.P3 and P4 reports. The petitioner assails the detention of her husband Sri, Vineeth Sanjayan raising _inter alia,_ three contentions: 2. Firstly, it is contended that Ext.P1 order was passed without any application of mind. The fact that the detenu **WP(Crl.).No.139 of 2019** 3 was released on bail in Crime No.724/2018 of Kottayam West Police Station as per Ext.P12 order of the Court of Sessions, Kottayam, was not brought to the notice of the detaining authority while passing Ext.P1 order. It is the contention that the sponsoring authority had failed to forward the copy of Ext.P12 order dated 14.08.2018 in Crime No.724/2018 of Kottayam West Police Station and thereby, disabled the detaining authority from considering the conditions in Ext.P12 order. That apart it is contended that, the sponsoring authority had virtually misled the detaining authority by forwarding Ext.P4 report in respect of the aforesaid crime viz., Crime No.724/2018 of Kottayam West Police Station. In Ext.P4 it was reported that the detenu had not applied for bail and was in remand in connection with the said case. The second contention pertains to non-placement of another material before the detaining authority and this contention is based on the fact that, Ext.P11 dated 16.07.2018, whereby, security proceedings initiated against the detenu under Section 110 of the Code of Criminal Procedure (for brevity Cr.P.C) were dropped, was not placed before the **WP(Crl.).No.139 of 2019** 4 detaining authority. Thirdly, it is contended that Ext.P1 order is nothing but verbatim re-production of Ext.P3. 3. Heard learned counsel appearing for the petitioner as also the learned Public Prosecutor. 4. We are of the considered view that, we need to consider 2[nd] and 3[rd] contentions referred hereinbefore, only if we are repelling the contentions of the petitioner with respect to non-application of mind by the detaining authority. As noticed hereinbefore, the said contention is that, order is founded on the fact that Ext.P12 order was not at all placed before the detaining authority. The factum of non-placement of Ext.P12 viz., bail order in Crime No.724/2018 of Kottayam West Police Station is not disputed. In otherwords, the fact is that it was not forwarded by the sponsoring authority to the detaining authority. What make the matters worse is the forwarding of Ext.P4, which is a distorted version of the actual state of affairs by the sponsoring authority to the detaining authority. Going by Ext.P12 it is evident that the detenu had applied for bail in the aforesaid crime under Section 439 of the Cr.P.C. After hearing the learned **WP(Crl.).No.139 of 2019** 5 Public Prosecutor in the said crime, the Court of Sessions, Kottayam granted bail to the detenu as per Ext.P12, with conditions. Thus, it is evident that Ext.P12 whereby the detenu was granted bail in Crime No.724/2018 of Kottayam West Police Station was not forwarded by the sponsoring authority to the detaining authority and add to it, the detaining authority was informed that in the said case he had not even applied for bail and was in remand at the relevant point of time. To buttress the contention that non-placement of the bail order carrying conditions would vitiate Ext.P1 order and necessarily Ext.P9 order as well, the learned counsel appearing for the petitioner relied on a decision of the Hon'ble Apex Court in **Rushikesh Tanaji Bhoile v. State of Maharashtra** reported in [(2012) 2 SCC 72]. In the said decision the Hon'ble Apex Court quoted with agreement in its earlier decision in **Rekha v. State of Tamil** **Nadu** reported in [(2011) 5 SCC 244. Paragraph 11 of the said decision reads thus:- _“25.In this connection, it may be noted that there is nothing on the record to indicate whether the detaining authority was aware of the fact that the bail application of the accused was pending on the date when the detention order was passed on 8-4-2010. On the other_ **WP(Crl.).No.139 of 2019** 6 _hand, in Para 4 of the grounds of detention it is mentioned that 'Thiru. Ramakrishnan is in remand in Crime No.132 of 2010 and he has not moved any bail application so far'. Thus, the detaining authority was not even aware whether a bail application of the accused was pending when he passed the detention order, rather the detaining authority passed the detention order under the impression that no bail application of the accused was pending but in similar cases bail had been granted by the courts. We have already stated above that no details of the alleged similar cases has been given. Hence, the detention order in question cannot be ” sustained._ _(underline supplied)_ 5. In the light of the aforesaid decision Ext.P1 has to be looked into. The following recital in Ext.P1 would reveal that the detaining authority, at the time of passing it, was absolutely unaware of the fact that the detenu was already enlarged on bail in Crime No.724/2018 of Kottayam West Police Station.: "ക��ടയ� വ�സ� ക��ല�സ� കസഷന�വല ക�� ന�. 724/18 എന ക�സ�ൽ ജ�മ�� ന�കഷധ�കവ�ട� റ�മ�ൻഡ�ൽ �ഴ�യന ട� പത� ജ�മ�� ലഭ�ച� പറത�ന�ൽ ��മ�നൽ സ�ഘങളമ�യ� കടക/ർന� കനത�ത2� നൽ��യ� ക��ടയ� ജ�ലയ�വല ����ധഭ�ഗങള�ൽ അ�മപ�ർതനങള�ൽ ഏർവ�ടവമനള ജ�ല ക��ല�സ� കമധ���യവട ആശങ ട� യ�ൻ പത� ക/ർകവ�ട�ടള കററ ��ത�ങൾ സ�ബന�ച സമർ��കവ�ട കBഖ�ൾ �B�കശ�ധ�ചത�ൽ ന�ന� സ�ശയ�ത�തമ�യ� കബ�ധ�വ�ട�ടണ�.” 6. A perusal of Ext.P1 would reveal that virtually in the aforequoted portion from it the very number of the crime was **WP(Crl.).No.139 of 2019** 7 also wrongly mentioned. Instead of Crime No.724/2018 it is given as 728/2018. This is evident from Ext.P1 itself as serial No.13 in the number of cases considered for the purpose of passing Ext.P1 is Crime No.724/2018 registered at Kottayam West Police Station alleging commission of offences under Sections 328, 326, 458, 427 and 308 r/w section 34. Ext.P2 would make the position more clear. In Ext.P2 ground of detention it is stated: "ക��ടയ� വ�സ� ക��ല�സ� കസഷന�വല ക�� ന�. 724/18 എന ക�സ�ൽ ജ�മ�� ന�കഷധ�കവ�ട� റ�മ�ൻഡ�ൽ �ഴ�യന ട� പത� ജ�മ�� ലഭ�ച� പറത�ന�ൽ ��മ�നൽക സ�ഘങളമ�യ� കടക/ർന� കനത�ത2� നൽ��യ� ക��ടയ� ജ�ലയ�വല ����ധഭ�ഗങള�ൽ അ�മപ�ർതനങള�ൽ ഏർവ�ടവമനളജ�ല ക��ല�സ� കമധ���യവട ആശങ ട� യ�ൻ പത� ക/ർകവ�ട�ടള കററ ��ത�ങൾ സ�ബന�ച സമർ��കവ�ട കBഖ�ൾ �B�കശ�ധ�ചത�ൽ ന�ന� സ�ശയ�ത�തമ�യ� കബ�ധ�വ�ട�ടണ�.” 7. Thus it is obvious that the non-placement of Ext.P12 dated 14.08.2018 whereunder the detenu was released on bail, before the detaining authority virtually vitiated the subjective satisfaction of the detaining authority. The aforequoted recital from Exts.P1 and P2 grounds of detention would reveal that the detaining authority had proceeded to pass Ext.P1 order on the **WP(Crl.).No.139 of 2019** 8 premise that in connection with crime No.724/2018 the detenu had not applied for bail and he was in remand. The fact that the detenu was released on bail as per Ext.P12 was not brought to the notice of the detaining authority. Thus, owing to the nonplacement of Ext.P12 and at the same time owing to the forwarding of Ext.P4 the detaining authority was made to believe that the detenu was in custody in connection with Crime No.724/2018. In Ext.P3 report what is stated is that if he is released on bail in that case, he would commit further offence and he would pose threat to the public. That exactly is the conclusion arrived at by the detaining authority based on the conclusion that in connection with the same crime, the detenu was in custody. In the said circumstances, aforequoted extract from the decision in **Rekha** 's case (supra) assumes relevance. In fact, the case on hand stands on a firmer footing. It would go to show that at the time of passing Ext.P1 order, the detaining authority was not aware of the fact that the application for bail moved by the detenu in connection with Crime No.724/2018 of Kottayam West Police Station was allowed by the Court of **WP(Crl.).No.139 of 2019** 9 Sessions, Kottayam and he was enlarged on bail. On the other hand, the order was passed on the belief that he was in remand in connection with the said crime. In the aforesaid circumstances, we have no hesitation to hold that the genuineness of the subjective satisfaction is whittled down by the aforesaid indisputable and undisputed facts. Going by the decisions by the decisions of the Hon'ble Apex Court in **Abdul v. Union of India** (1991) Crl.L.J.430 (SC) and in **Ahmed Kutty v. Union of India** (1990) 2 SCC 1 there occurred violation of Article 22 of the Constitution of India owing to the non-placement of materials which would have been relevant for the subjective satisfaction of the detaining authority. When that be so, we are of the view that other grounds urged by the learned counsel for the petitioner need not be gone into. In the said circumstances, Ext.P1 and Ext.P9, the order confirming Ext.P1 are liable to be interfered with. Consequently, Exts.P1 and P9 are quashed. The detenu by name Vineeth Sanjayan, aged 30 years, S/o. Sanjayan, Mankeezhepadi, Aymanam Village, Kottayam Taluk, Kottayam District be **WP(Crl.).No.139 of 2019** 10 released forthwith, if not required in connection with any other case. The Registry shall send gist of the judgment to the Superintendent of Viyyur Central Jail, Thrissur. **Sd/C.T.RAVIKUMAR JUDGE Sd/N.NAGARESH** dlk/19.06.19 **JUDGE** **WP(Crl.).No.139 of 2019** 11 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE COPY OF THE ORDER DATED 17.09.2018 ISSUED BY 2ND RESPONDENT** - **EXHIBIT P2 THE COPY OF THE GROUNDS CONSIDERED BY THE 2ND RESPONDENT FOR ISSUANCE OF EXT.P1** - **EXHIBIT P3 THE COPY OF REPORT DATED 28.07.2018 ISSUED BY 3RD RESPONDENT TO THE 2ND RESPONDENT.** **EXHIBIT P4 THE COPY OF REPORT DATED 28.08.2018 ISSUEDB BY 3RD RESPONDENT TO THE 2ND RESPONDENT. EXHIBIT P5 THE COPY OF THE EXECUTION ORDER DATED 17.09.2018 ISSUED BY 2ND RESPONDENT. EXHIBIT P6 THE COPY BUNDLE OF DOCUMENTS SERVED ON THE DETENU EXHIBIT P7 THE COPY OF ORDER DATED 28.10.2018 ISSUED BY THE 1ST RESPONDENT . EXHIBIT P8 THE INFORMATION DATED 03.12.2019 ORDER ISSUED BY 1ST RESPONDENT TO PETITIONER. EXHIBIT P9 THE COPY OF THE ORDER DATED 05.12.2018 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P10 THE COPY OF THE INFORMATION DATED 01.06.2018 ISSUED BY 3RD RESPONDENT TO PETITIONER.** **EXHIBIT P11 THE COPY OF THE ORDER IN M.C.2/2018 OF SUB DIVISIONAL MAGISTRATE,KOTTAYAM EXHIBIT P12 THE COPY OF THE ORDER IN CRL.M.P.NO.1639 OF 2018 OF SESSIONS COURT,KOTTAYAM. EXHIBIT P13 THE COPY OF THE PROCEEDINGS DATED 24.09.2018 IN CP 34 OF 2016 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE** **WP(Crl.).No.139 of 2019** 12 ## **COURT-1,ETTUMANOOR.** **EXHIBIT P14 THE COPY OF THE PROCEEDINGS DATED 17.09.2018 IN ST 1172 OF 2018 JUDICIAL FIRST CLASS MAGISTRATE COURT 1,KOTTAYAM. EXHIBIT P15 COPY OF THE PROCEEDIGNS DATED 06.07.2017 IN CP. 9/2017 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT,KOTTAYAM. EXHIBIT P16 THE COPY OF THE PROCEEDINGS DATED 16.02.2019 IN SC 538 OF 2017 ON THE FILE OF ADDL.ASST.SESSIONS JUDGE,KOTTAYAM. EXHIBIT P17 THE COPY OF PROCEEDINGS DATED 14.09.2018 IN CC 699 OF 2016 IN THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT 1, KOTTAYAM.**