Sini 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** **THURSDAY, THE 11TH DAY OF APRIL 2019 / 21ST CHAITHRA, 1941** ## **WP(Crl.).No.10 of 2019** ## **PETITIONER:** **SINI,AGED 49 YEARS W/O OMANAKUTTAN, VENGUPARAMBIL, PARAKKADAVU, KURAUMASSERY, ALUVA, ERNAKULAM-683579.** **BY ADV. SRI.M.H.HANIS** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,REPRESENTED BY THE PRINCIPAL**| |---|---| ||**SECRETARY TO GOVERNMENT, HOME AND VIGILANCE**| ||**DEPARTMENT, GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM,PIN-695001.**| |**2**|**THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE,**| ||**ERNAKULAM, PIN-682030.**| |**3**|**THE CITY POLICE CHIEF,**| ||**ERNAKULAM RURAL, ALUVA, PIN-683101.**| |**4**|**THE CHAIRMAN,ADVISORY BOARD, KAAPA, SREENIVAS,**| |---|---| ||**PADAM ROAD, VIVEKANANDA NAGAR, ELAMAKKARA**| ||**PIN-682026.**| |**5**|**THE SUPERINTENDENT OF JAIL,**| ||**CENTRAL JAIL, KANNUR,PIN-670 004.**| **PUBLIC PROSECUTOR SRI K.A ANAS.** **THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 11.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(Crl.)No.10 of 2019 2 ## **JUDGMENT** ## **Ravikumar, J.** This writ petition seeking issuance of writ of habeas corpus, _in re_ one Nithin @ Thimmayyan, aged 23 years, S/o.Omanakuttan, Venguparambil, Parakkadavu, Kuraumassery, Aluva, Ernakulam, carries challenge against Ext.P1 order of detention passed by the second respondent. It is filed by the wife of the detenu. The detenu, going by Ext.P1, allegedly involved in six crimes, referred to in detail therein. Those crimes are allegedly committed in between the years 2014 and 2018 and as such certainly, within the period permissible to be reckoned for the purpose of passing an order under the Kerala AntiSocial Activities (Prevention) Act, 2007 (for short 'KAA(P)A'). In respect of four crimes referred to in Ext.P1, after the registration of first information reports, investigations were conducted and reports under Section 173(2) of the Code of Criminal Procedure (Cr.P.C.) were laid and in respect of two crimes investigations are pending. Crime No.327 of 2016 of Chengamanadu Police Station was registered against the detenu alleging commission of offences under Sections 363 and 395 of the Indian Penal Code (IPC). It is one of the cases that is still under investigation. The other crime which is still under investigation is Crime W.P.(Crl.)No.10 of 2019 3 No.863 of 2018 of Chengamanadu Police Station registered under Sections 341, 323, 324, 452 and 326 read with Section 34, IPC. Crime Nos.97 and 762 of 2014 of Chengamanadu Police Station, Crime No.149 of 2014 of Kalady Police Station and Crime No.661 of 2017 of Angamaly Police Station are cases where he was arraigned as accused and upon completion of investigation reports under Section 173(2) Cr.P.C. were laid. Trial is pending in those cases. The last crime viz., Crime No.863 of 2018 of Chengamanadu Police Station was registered on 14.7.2018 and on the same day he was arrested. He was subsequently released on bail on 3.9.2018. In execution of Ext.P1 he was thereafter arrested on 20.10.2018 and the said detention order was approved by the first respondent on 28.10.2018. Ext.P1 order was confirmed by the first respondent on 19.12.2018 after the receipt of the opinion of the Advisory Board. 2. We have heard the learned counsel for the petitioner and also the learned Public Prosecutor. 3. As noticed hereinbefore, Ext.P1 is under challenge mainly on four grounds. Firstly, it is contended by the learned counsel appearing for the petitioner that going by the definition of 'rowdy' under Section 2(t) of KAA(P)A, there must be specific accusation of commission of any W.P.(Crl.)No.10 of 2019 4 particular act/commission constituting the offences which would attract the definition of the term 'rowdy'. It is contended that there occurred delay in passing order of detention under Section 3(1) of KAA(P)A since the date of alleged commission of the last prejudicial activity. Evidently, the last prejudicial activity was allegedly committed on 11.7.2018 and Ext.P1 order of detention was passed on 16.10.2018. In elaboration of the said contention, it is contended that in case of delay in passing the detention order after the last prejudicial activity it is incumbent on the detaining authority to explain the delay reasonably. It is the contention that no proper explanation is forthcoming, as is discernible from Ext.P1. Thirdly, it is contended that the entire copies of bail orders in respect of the crimes which are pending investigation, were not furnished to the detenu and therefore, there is violation of Section 7(2) of KAA(P)A. Fourthly, it is contended that conditions of bails were not taken into consideration by the sponsoring authority as well as the detaining authority. Besides raising the aforesaid contentions, the learned counsel also took up a contention that Ext.P3 representation submitted before the Advisory Board, after the submission of opinion by the Advisory Board, was not at all considered by the Advisory Board. Yet another contention regarding the non-compliance with Section 3(3) of W.P.(Crl.)No.10 of 2019 5 KAA(P)A is also raised on the ground that the copies of supporting documents of the detention order were not forthwith reported to the Government by the second respondent. To buttress the contentions raised hereinbefore, the learned counsel also relied on various authorities. 4. The learned Public Prosecutor countered the aforesaid contentions and submitted that the contentions raised are absolutely bereft of any basis. It is contended that there is specific accusation of commission of offences to bring the petitioner's husband viz., the detenu within the definition of the term 'rowdy'. It is also submitted that there is no basis for the contention that there occurred delay in passing Ext.P1 order under Section 3(1) of KAA(P)A since the date of last prejudicial activity. Furthermore, it is contended that if at all there is time lag it was properly explained. It is also contended that the violation of Section 7(2) of KAA(P)A cannot be accepted as going by the very section what is provided thereunder is that the grounds of detention, specifying the instances of offences, with copies of relevant documents, as far as practicable, shall be served on him and such materials relating his activities based on which order of detention was found necessary shall also be furnished to him as soon as possible, W.P.(Crl.)No.10 of 2019 6 nevertheless, in any case, within five days of detention. It is contended that the statutory requirements under Section 7(2) were scrupulously complied with. The conditions of bail were also actually taken into account by the detaining authority. 5. As noticed hereinbefore, the learned counsel for the petitioner took up a contention based on non-consideration of Ext.P3 representation submitted to the Advisory Board. Admittedly, by the time the said representation was submitted, in fact, much earlier than that the Advisory Board had forwarded its opinion to the first respondent. The Advisory Board gave its opinion on 5.12.2018 and Ext.P3 representation is dated 31.12.2018. It is also to be noted that after the receipt of the opinion of the Advisory Board, the first respondent confirmed Ext.P1 order on 19.12.2018. Needless to say that Ext.P3 representation was submitted only subsequent to the submission of opinion by the Advisory Board and also subsequent to the order confirming Ext.P1 passed by the first respondent. The contention of the learned counsel for the petitioner is that non-consideration of Ext.P3 representation is fatal. The question to be considered is whether the Advisory Board, which is bound to give opinion in terms of Section 10(4) of KAA(P)A, should entertain a representation received after W.P.(Crl.)No.10 of 2019 7 forwarding its opinion to the Government. There can be little doubt with respect to the position that after forwarding its opinion in terms of provisions under Section 10(4) of KAA(P)A, no further representation would lie before the Advisory Board. Even if any such representation is made before the Advisory Board, in such circumstances, the Advisory Board is not bound to revisit its earlier opinion which was already forwarded to the Government to enable it to pass order either confirming or cancelling the detention order. In fact, it could not revisit its earlier order. In such circumstances, we do not find any reason to uphold the contention raised by the petitioner based on the factum of non-consideration of Ext.P3 representation by the Advisory Board. 6. Now, we will proceed to consider the other contentions. As noticed hereinbefore, after receiving the opinion of the Advisory Board, the first respondent considered the question whether Ext.P1 order should be confirmed or not and ultimately confirmed it on 19.12.2018. Thereafter, the petitioner filed a representation dated 31.12.2018 before the State Government. In the counter affidavit filed by the first respondent in this writ petition, it is stated that the said representation dated 31.12.2018 was received by the Government only on 14.1.2019. After considering the said representation, Government found no reason W.P.(Crl.)No.10 of 2019 8 to revoke its order confirming Ext.P1 order and consequently, rejected the said representation. As per letter No.Home.SS A5/238/18-Home dated 17.1.2019, the fate of that representation was communicated to the detenu. 7. We will now consider the question whether delay had occurred in passing the detention order since the alleged commission of the last prejudicial activity. The last prejudicial activity was allegedly committed on 11.7.2018 and as noticed hereinbefore, in respect of the same, a crime was registered only on 17.7.2018. The detenu was arrested in connection with that crime on 14.7.2018 itself and he was released on bail on 3.9.2018. Ext.P1 was executed on 20.10.2018. It was approved on 28.10.2018. Countering the contention that there occurred delay in the matter of passing order under Section 3(1) of KAA(P)A, it is submitted by the learned Public Prosecutor that a perusal of Section 3 of KAA(P)A would reveal that virtually no time limit was prescribed therefor. Section 3(3) of KAA(P)A reads thus:- Section 3(3):-When any order is made under this section 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 W.P.(Crl.)No.10 of 2019 9 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 Secretary, Home Department if generally so authorised in this regard by the Government. 8. Going by Section 3(3) of the KAA(P)A, when an order is passed by the authorised officer under Sub-section 2, he shall forthwith report that factum of issuance of the said order to the Government, together with copy of the order and supporting records. The said provision would further reveal that such an order passed by the authorised officer under Sub-section 2 of Section 3 would remain in force only for 12 days excluding public holidays from the date of detention of known Goonda or Known Rowdy unless, in the meantime it has been approved by the Government or by the Secretary, Home Department if generally so authorised by the Government in that regard. 9. In such circumstances, while considering the aforesaid question, two aspects have to be looked into. Whether the authorised officer after passing an order under Sub-section 2 of Section 3 forwarded a report regarding the passing of such order forthwith, together with the copy of the order and supporting records which, in his W.P.(Crl.)No.10 of 2019 10 opinion, have a bearing on the matter. In the case on hand, the order was passed by the authorised officer invoking the power under Section 3(2) of KAA(P)A on 16.10.2018. The materials on record would reveal that on the same day viz., on 16.10.2018, the authorised officer reported the factum of issuance of order invoking the power under Section 3(2) to the Government along with copy of the order and supporting records. On perusal of the records made available by the learned Public Prosecutor, we find that the copy of the order along with relevant records were forwarded to the Government on 16.10.2018 itself. It is stated in the counter affidavit filed by the first respondent that the copy of the order passed by the authorised officer under Section 3(2) along with materials on record were received by the Government forthwith. The learned counsel for the petitioner submitted that if the order passed by the authorised officer is forwarded forthwith, the said order could remain in force only for a period of 12 days from the date of the order passed by the authorised officer. In support of that contention, the learned counsel relied on the decision of the Hon'ble Apex Court in **Hetchin Haokip v. State of Manipur and others [(2018) 9 SCC 562]** . Evidently, that was a case under the National Security Act, 1980. Going by Section 3(4) of the said Act, the W.P.(Crl.)No.10 of 2019 11 factum of issuance of order of detention by the authorised officer should be reported to the Government forthwith. But at the same time, going by the said provision, the order of detention passed by the authorised officer would not remain in force for more than 12 days from the date of passing of such order by the authorised officer. If the period is calculated from the date of passing of Ext.P1 order by the authorised officer based on the aforesaid decision, at the first blush, it would appear that there is substance in the contention raised by the petitioner. The learned Public Prosecutor submitted that the second limb of Section 3(4) of the National Security Act and second limb of KAA(P)A are different and therefore, the decision in **Hetchin Haokip** 's case is totally inapplicable in the case on hand. 10. A comparison of Section 3(4) of the National Security Act, 1980 and Section 3(3) under KAA(P)A would reveal that as regards the second limb of both the enactments, dealing with the period for which the initial order of detention would remain in force, they are not pari materia to each other. In the case of the said provision under the National Security Act, the period of 12 days would commence from the very order of detention passed by the authorised officer. However, the period of 12 days for the purpose of Section 3(3) of KAA(P)A would W.P.(Crl.)No.10 of 2019 12 commence only from the date of execution of the order of detention going by the specific terms thereunder. In such circumstances, we are of the view that the contention raised by the learned counsel for the petitioner relying on the decision in **Hetchin Haokip's** case (supra) rendered in a matter covered by the provisions under Section 3(4) of the National Security Act is inapplicable in the case on hand. As stated earlier, in this case, Ext.P1 order dated 16.10.2018 was approved well within 12 days from the date of execution of Ext.P1. We have already noted that Ext.P1 was executed on 20.10.2018 and it was approved on 28.10.2018. Hence, the aforesaid contention has also to be held as devoid of merit. 11. Now, we will consider yet another contention raised by the petitioner. Ground 'G' raised in the writ petition is as follows:- _"The entire copies of the records leading to the order of detention are not supplied to the detenu and the supplied copies were not fully legible. This has seriously prejudiced the just interests of the detenu."_ 12. We have already taken note of the fact that the detaining authority in the counter affidavit specifically stated that the order of detention along with records were forwarded to the Government. This W.P.(Crl.)No.10 of 2019 13 fact is discernible from the materials on record. In the counter affidavit filed by the first respondent, the factum of receipt of the order as also the records relied on to pass the said order were admitted. Now, the afore-extracted ground 'G' of the writ petition would reveal that it is too vague. What is stated therein is that the entire copies of the records relating to the order of detention were not supplied to the detenu and the supplied copies were not fully legible. It is not discernible from the said ground as also the entire pleadings in the writ petition as to which is the copy or which are the copies of the record leading to Ext.P1 order that was not or were not supplied to the detenu and further that which is or which among the supplied copies is not fully legible. In the absence of a specific contention relating to any particular supplied copy which is illegible, we are of the considered view that the said contention cannot hold good. Another contention which was raised is that the bail conditions were not taken into consideration by the detaining authority. In that context, it is only appropriate to refer to Ext.P1 order itself. A perusal of Ext.P1 itself would reveal the fact that in Crime No.863/2018, which is the last alleged activity, he was arrested and subsequently he was enlarged on bail as per order dated 03.09.2018 of Judicial First Class Magistrate Court-I, Aluva. Ext.P1 itself W.P.(Crl.)No.10 of 2019 14 would reveal the said fact and further that the conditions imposed thereunder were taken into account by the detaining authority. Obviously, one of the conditions therein is to the effect that the detenu shall not indulge in any criminal activity. In fact, ground 'J' would reveal that the grievance is that sufficiency of the conditions imposed while granting bail to the accused viz., the detenu herein to deal with his case without resorting to the provisions under KAA(P)A was not considered by the detaining authority. As noticed hereinbefore, a scanning of the impugned order would reveal the fact that in connection with the offence reckoned for the purpose of its issuance the detenu was arrested and subsequently he was enlarged on bail, and that fact was also taken into account by the detaining authority. True that, in one of the crimes committed by him in 2014, for which he was arrested, which was also reckoned, he was enlarged on bail and one of the conditions therein is that he shall not indulge in offences of similar nature. The fact is that the detenu has subsequently committed offences and in connection with such offences, crimes were also registered. It is in the said circumstances that in Ext.P1 it is stated that the detenu had failed to comply with the bail conditions. As noticed hereinbefore, in Ground 'J' what is stated by the petitioner is that W.P.(Crl.)No.10 of 2019 15 sufficiency of conditions imposed while granting bail to the accused was not considered by the detaining authority. Ext.P1 itself would reveal that the detaining authority had taken into consideration the fact that even after getting enlarged on bail inconnection with certain offences allegedly committed by him in 2014, pursuant to his releasing on bail, he had indulged in further anti social activities. Those facts were specifically referred to in Ext.P1 order. The other contention of the petitioner is that, Ext.P1 would violate Articles 14, 21 and 22 of the Constitution of India. Ext.P1 cannot be challenged by the petitioner merely by raising a contention that, it would violate his rights under Article 14, 21 and 22. If the conditions permitting preventive detention under KAA(P)A are complied with, the detenu cannot be heard to contend that it violates his freedom and therefore, violative of Article 21 of the Constitution of India. So also, a person who had violated law cannot be heard to raise grievance against violation of Article 14 of the Constitution of India, if he is dealt with in accordance with law. In the case on hand, there is nothing which would indicate that the petitioner would be deprived of his right to file representation as contemplated under Article 22 of the Constitution of India or deprived of his right to represent against preventive detention. No other contention was raised W.P.(Crl.)No.10 of 2019 16 by the petitioner for the prupose of raising chellenge against Ext.P1. We have already found that Ext.P1 order was approved by the Government and later on receipt of the opinion of the Advisory Board, the Government had considered the question whether Ext.P1 should be confirmed or not. Admittedly, after such consideration and taking into account all relevant aspects, the first respondent had confirmed Ext.P1 order. Copies of the order of approval and confirmation were also served on the detenu. Obviously, they are not under challenge in this wrt petition. As stated earlier, challenge in the writ petition is only confined to Ext.P1 order. On the aforementioned reasons and in view of the conclusions and findings in respect of the contentions raised by the petitioner, we do not find any reason to hold that there was no sufficient number of cases for the purpose of arriving at a conclusion whether the petitioner would fall under the definition of 'known rowdy'. So also, we do not find any reason to hold that the conclusion that he is liable to be declared as 'known rowdy' was made without application of mind. Ext.P1 order itself would reveal that substantive satisfaction was arrived at by the detaining authority after considering all relevant aspects before passing Ext.P1 order. In the said circumstances, we do not find any reason to interfere with Ext.P1 order which was later approved and W.P.(Crl.)No.10 of 2019 17 then confirmed, as mentoned hereinbefore. Resultantly, this writ petition must fail and consequently, it is dismissed. **Sd/C.T.RAVIKUMAR JUDGE Sd/N.NAGARESH JUDGE** W.P.(Crl.)No.10 of 2019 18 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF ORDER NO.DCEKM/11251/2018-M7 DATED 16.10.2018 OF THE 2ND RESPONDENT** **EXHIBIT P2** **A TRUE COPY OF THE REPRESENTATION DATED 31.12.2018 SUBMITTED BY THE MOTHER OF THE DETENU BEFORE THE 1ST RESPONDENT** **EXHIBIT P3 A TRUE COPY OF THE REPRESENTATION DATED 31.12.2018 SUBMITTED BY THE MOTHER OF THE DETENU BEFORE THE 4TH RESPONDENT** ## **RESPONDENTS' EXHIBITS:NIL** **spc/**