Soma Varghese v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **FRIDAY, THE 4[TH] DAY OF NOVEMBER 2022 / 13TH KARTHIKA, 1944** ## **WP(CRL.) NO.776 OF 2022** ## **PETITIONER:** **SOMA VARGHESE AGED 49 YEARS W/O. VARGHESE, PUTHUSSERY HOUSE, KALAMKEY P.O, KANNUR - 670705** **BY ADVS. T.D.SUSMITH KUMAR C.SIVADAS T.O.DEEPA** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY ADDITIONAL CHIEF SECRETARY, DEPARTMENT OF HOME AFFAIRS, THIRUVANANTHAPURAM - 695001** - **2 ADVISORY BOARD REPRESENTED BY ITS SECRETARY, KAA(P)A, ERNAKULAM - 682011** - **3 THE DISTRICT MAGISTRATE CIVIL STATION, COLLECTRATE ROAD, KANNUR - 670002** - **4 THE SUPERINTENDENT CENTRAL PRISON VIYYUR, THRISSUR - 680010** - **5 DISTRICT POLICE SUPERINTENDENT KANNUR - 670002 BY ADVS. ADVOCATE GENERAL OFFICE KERALA ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)** ## **SRI K.A.ANAS -GOVERNMENT PLEADER** **THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON** **04.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(Crl.) No.776 of 2022 1 # **ALEXANDER THOMAS & SOPHY THOMAS, JJ.** ## **========================================= W.P(Crl.) No.776 of 2022** **=========================================** Dated this the 04[th] day of November, 2022 ## **JUDGMENT** ## **Alexander Thomas, J.** The prayers in the instant Writ Petition (Crl.), seeking for the writs of Habeas Corpus and certiorari, in the challenge directed against the preventive detention order issued against the detenu in this case, are as follows : - _“i) to issue a Writ of Certiorari or any other appropriate Writ, Order or Direction to call for the entire records pertaining to Exhibit P-2, the Order of Detention dated 05-05-2022 and to set aside the same._ - _ii) to issue a Writ of Habeas Corpus, or any other appropriate Writ or Order or Directions, directing the Respondents to produce the Petitioner's husband, Varghese, S/o.Mathai, aged 49, Puthussery House, Kalamkey P.O, Kannur-670705, the Detenu before this Hon'ble Court, forthwith and to release him._ - _iii) To grant any other reliefs as are deem just and necessary in the facts and circumstances of the case, in order to secure ends of justice._ - _iv) to dispense with filing of the translation of vernacular documents.”_ 2. Heard Sri.Susmith Kumar, learned counsel appearing for the petitioner and Sri.K.A.Anas, learned Public Prosecutor appearing for the respondents. 3. The petitioner herein is the wife of the detenu, who has been ordered to be preventively detained in terms of Sec.3(1) of the Kerala W.P(Crl.) No.776 of 2022 2 Anti-Social Activities (Prevention) Act , 2007 [KAAP Act]. The brief facts leading to the writ petition are as follows : _The 5[th] respondent-District Police Chief (sponsoring authority) has submitted Ext.P-1 report dated 21.04.2022 to the 3[rd] respondentDistrict Magistrate/District Collector, Kannur (authorised detaining authority), recommending that, in view of the facts and materials disclosed in the said report, it is a fit case for the 3[rd] respondent (authorized detaining authority) to issue order under Sec.3(1) of the KAAP Act, to detain the detenu, with a view to prevent him from committing further prejudicial anti-social activities, as understood by Sec.2 (a) of the Act. Accordingly, the 3[rd] respondent (District Magistrate) has issued Ext.P-2 detention order dated 05.05.2022 under Sec.3(1) of the Act, ordering the preventive detention of the detenu. Ext.P-2 detention order dated 05.05.2022 has been executed on 12.05.2022 and thus the detenu has been under detention since 12.05.2022. Further, Ext.P-2 detention order has been approved by the 3[rd] respondent-State Government, as per Ext.P-3 order dated 23.05.2022. Thereafter, the 1[st] respondent-State Government has referred the matter to the 2[nd] respondent-Statutory Advisory Board on 30.05.2022. The 2[nd] respondent-Advisory Board has given their report_ W.P(Crl.) No.776 of 2022 3 _on 24.06.2022, recommending to the State Government that there is sufficient cause for the preventive detention of the detenu under Sec.3(1) of the Act. Later, the 1[st] respondent-State Government has issued order as per G.O (Rt.) No.1875/2022/Home dated 06.07.2022, confirming Ext.P-2 detention order._ 4. A perusal of Ext.P-2 detention order would indicate that, altogether six crimes have been taken into account in the above decision making process, which led to the impugned detention order. All the crimes registered against the detenu are under the Abkari Act. There is no serious dispute that the technical requirements for the definitional parameters of “bootlegger”, as per Sec.2(c) of the Act and that of, “ _known goonda_ ”, as per Sec.2(o) read with Sec.2(j) of the Act, are fulfilled in this case, going by the pendency of the above cases. Hence, there is no necessity for us to examine as to whether the essential parameters of “ _known goonda_ ”, as per Sec.2(o) of the Act, are fulfilled in this case. So also, the statutory timeline of five days, under Sec.7(2) of the Act, for communication of the order and the grounds for detention, that of 12 days, under Sec.3(3) of the Act, for approval of the order by the Government, that of three weeks, under Sec.9(1) for the Government to place the matter before the Advisory Board and that of nine weeks from W.P(Crl.) No.776 of 2022 4 the date of detention, under Sec.10(1), for the Advisory Board to give the report, etc., are fulfilled in this case. 5. The main grounds urged by Sri.Susmith Kumar, learned counsel appearing for the petitioner are as follows : Firstly, that there has been unexplained and inordinate delay, as between the last prejudicial activity (sixth crime), registered on 20.02.2022 and the impugned Ext.P-2 detention order dated 05.05.2022 and hence, the live link between the last prejudicial activity and the purposes of detention, have been vitally snapped and hence, the decision making process, which led to the impugned detention order, stands vitiated, which is liable for interdiction by this Court. The 2[nd] & 3[rd] grounds urged by the learned counsel for the petitioner are inter-related. Those are that the 3[rd] respondentDistrict Magistrate (detaining authority) has, without any application of mind and mechanically, accepted Ext.P-1 report of the sponsoring authority, in treating these six crimes under the Abkari Act, for the purpose of subjective satisfaction under Sec.3(1). That, if the basic facts, as projected in each of the six crimes, had been adverted to by the 3[rd] respondent, then it would have been W.P(Crl.) No.776 of 2022 5 indisputably disclosed that those are not cases which warrant the extreme and draconian measure of preventive detention and that, the impugned decision making process is thus vitiated by nonapplication of mind by the detaining authority. Further that, the other contention raised by the petitioner is that the vital parameter of bail cancellation option was a highly relevant and crucial aspect of the matter and the said option of bail cancellation application has not even been remotely considered by the 3[rd] respondent-detaining authority in the impugned order and it shows total non-application of mind in that regard, more so particularly, having regard to the lack of severity of the offences. 6. Sri.K.A.Anas, learned Public Prosecutor appearing for the respondents, has strongly opposed the abovesaid pleas. In the instant case, the last prejudicial activity (date of registration of the sixth crime) is on 20.02.2022. The 5[th] respondent-sponsoring authority has given his report on 21.04.2022. Ext.P-2 detention order has been issued on 05.05.2022. In the light of these aspects, Sri.Susmith Kumar, learned counsel appearing for the petitioner, would strongly contend that the live link between the last prejudicial activity and the purpose of detention have been snapped and hence, the impugned order is liable for W.P(Crl.) No.776 of 2022 6 interdiction. 7. Per contra, the learned Prosecutor would urge that, it is true that the last crime was registered on 20.02.2022. But that the detenu was arrested in that case on 20.02.2022 and he was released on bail on 21.03.2022. It is only after release from bail that the 4[th] respondentsponsoring authority thought that it was a serious matter for seeking the option of preventive detention and he has given his report on 21.04.2022 and this led to the impugned Ext.P-2 detention order on 05.05.2022. If the time gap between the release of the detenu on bail in the sixth case (21.03.2022) and the date of Ext.P-2 detention order (05.05.2022) is taken, then the delay cannot be said to be inordinate and that the delay thus, stands explained. 8. After hearing both sides, we are not in a position to concede to the abovesaid argument of the learned Prosecutor. A reading of the impugned Ext.P-2 detention order dated 05.05.2022, issued by the 3[rd] respondent-detaining authority, would make it clear that the consideration of this issue has been confined only to the last para appearing on internal page 8 of Ext.P-2 [see page 38 of the paper book of this W.P(Crl.)], wherein the only ground stated therein is that the last prejudicial activity (date of registration of the last crime), was on W.P(Crl.) No.776 of 2022 7 20.02.2022 and six months therefrom have not been completed, before the issuance of Ext.P-2 and so, the issuance of Ext.P-2 on 05.05.2022 is justified, etc. It will be pertinent to refer to the relevant contents of the last paragraph on page 8 of Ext.P-2, which reads as follows : "…............. ക�ട�ത� അവസ�നമ�യ� ��ങൾ ഉൾത�ട ക�ക� നമർ 22/22 ക�റക���� നടന��20.02.2022 ന�ണ� . ആയ��ന�ശ"ഷ� 6 മ�സക�ല�വധ� കഴ�ഞ�ട�ല�ത��ന�ല�� ��ങൾതക��ത+ ശക+ള സ�മ�ഹ� വ�+�ദ �/വർതനങൾ (�ടയൽ) ന�യമ� 2007 �/ക�+� നട/ട�കൾ സ23ക+�ക�വ�ന��ണ� ..................” So, a reading of Ext.P-2 order would make it clear that the 3[rd] respondent-detaining authority has only considered that since the last crime was registered on 20.02.2022 and as six months therefrom has not expired, then he is empowered to issue Ext.P-2 order on 05.05.2022 and that thereby, the live link between the last prejudicial activity and the purpose of detention have not been lost, etc. We are not in a position to accept the said perspective of the 3[rd] respondent, as relevant and germane for the abovesaid crucial issue. If the 3[rd] respondent had applied his mind in the manner now sought to be advanced by the learned Prosecutor, then the scenario would have possibly been different. That is not the instant approach. The 3[rd] respondent has mechanically and without any due application of mind, was taken the view that, merely because six months from the last crime was not over, it has to be taken that the live link is not lost. So, this clearly shows that the impugned W.P(Crl.) No.776 of 2022 8 decision making process on this vital point is vitiated by thorough nonapplication of mind and by taking into account completely irrelevant considerations. Hence, on the sole ground, the impugned detention order is liable for interdiction at the hands of this Court, in exercise of judicial review. 9. The next contention is that all the six crimes involved in this case are those punishable under the Abkari Act and that, going by the facts of the case, the same are not of any severe or grave nature. That, there has been no independent application of mind by the 3[rd] respondent, as to whether those cases would really require the invocation of the extreme measure of preventive detention in this case and that, the 3[rd] respondent-detaining authority has mechanically accepted the recommendations of the 5[th] respondent-sponsoring authority, without independently examining as to whether the six crimes all registered under the Abkari Act, which are not serious cases, would really require the extreme measure of preventive detention. In that regard, the learned counsel for the petitioner would place serious reliance on the dictum laid down by the Division Bench of this Court in paras 26 & 41 of the case in _**Uma** v._ _**State of Kerala**_ [2010 (4) KLT 511(DB)] as well as the dictum laid down in para 18 of the Full Bench decision in _**Abdul Wahab** v._ W.P(Crl.) No.776 of 2022 9 _**State of Kerala**_ [2017 (3) KLT 548 (FB)]. Further contention of the petitioner is that the serious aspect regarding the viability of the option of a bail cancellation application, to meet the contigency, has not been considered at all by the 3[rd] respondent-detaining authority in the decision proceedings and that since the cases itself are not of any severe nature, the said non-consideration, regarding the viability or otherwise of the option of bail cancellation application, would all the more seriously vitiate the decision making process. These pleas have been strongly opposed by the learned Prosecutor. It is urged by him that, since the definitional parameters of “ _known goonda_ ”, as per Sec.2(j) of the Act, are fulfilled, on account of the involvement of the detenu in these cases and the pendency of these cases are not disputed by the petitioner, whether those cases should be the basis for the subjective satisfaction of the 3[rd] respondent-detaining authority, is a matter within his province and domain and that therefore, the judicial review exercise in that ground is very limited. 10. That, a reading of the impugned Ext.P-2 detention order would clearly indicate that the detaining authority has considered, as to whether the other alternative options, like resort to the proceedings as per Sec.107 of the Cr.P.C would suffice and it has been opined by him, W.P(Crl.) No.776 of 2022 10 after due consideration, that the such option will not be sufficient, etc. Further that, it is not necessary that the option of bail cancellation should be examined in each case, etc. 11. After hearing both sides, it may be pertinent to refer to the six crimes, which have been taken into account on the basis of the issuance of the impugned proceedings. The details of the six crimes are stated in para 6 on pages 4 to 5 of the counter affidavit dated 12.10.2022, filed by the 1[st] respondent-State Government. 12. A reading of the abovesaid details of the six crimes would indicate that all the six crimes are for the alleged contravention of the provisions of the Abkari Act. After going through the above details, it is seen that, we are not in a position to hold that the abovesaid alleged offences are only trivial or not so grave violation of the Abkari Act. There cannot be any doubt that, technically, the requirements of Sec.2(j) of the Act would be disclosed and consequently, the requirements of “ _known goonda_ ”, as per Sec.2(o)(ii), would also be fulfilled. Hence, the contention that there has been total non-application of mind by the 3[rd] respondent-detaining authority, as to whether the offences are severe and grave enough for invoking the measure of preventive detention, cannot be accepted by us. However, it has to be noted that the incidents W.P(Crl.) No.776 of 2022 11 of the first four crimes are on 11.04.2017, 31.08.2017, 01.11.2018 & 24.03.2019. The penultimate case is on 09.06.2021 and the last case is on 20.02.2022. 13. Having regard to the fact that all the six crimes are in relation to contravention of the Abkari Act and as there seems to be a significant time gap between the penultimate crime and the previous crimes and also as between the penultimate crime and the last crime and other aspects, we are of the view that the 3[rd] respondent-detaining authority should have seriously and actively considered the option as to the viability or otherwise of a bail cancellation application. In the instant case, the detenu was arrested and remanded, in regard to his involvement in the last case on 20.02.2022. Later, he was released on bail in that case on 21.03.2022. Ext.P-1 sponsoring agency's report is on 21.04.2022. 14. Having regard to the fact that the detenu was involved in the aforesaid cases, the 3[rd] respondent should have seriously considered as to whether the institution of a bail cancellation application in the last case, pointing out about the involvement of the petitioner in altogether six cases, would have been sufficient and whether the extreme option of preventive detention, was really necessary. So also, it may be pertinent W.P(Crl.) No.776 of 2022 12 to note that, since the place of occurrence in all these cases are in Thalassery and other places, all within Kannur District, _prima facie_ , we would also think that the 3[rd] respondent should have considered the option of externment from that District, in terms of Sec.15(1) of the very same Act. At any rate, the option of bail cancellation should have been actively considered by the 3[rd] respondent. Non-consideration of such an aspect regarding the option of bail cancellation, which was highly crucial and relevant in the facts and circumstances of this case, would vitiate the decision making process. 15. The learned Public Prosecutor may be right in contending that the option of bail application need not be considered in a ritualistic manner in all cases. In the facts of this case, taking into account the fact that all the cases are for the violation of the Abkari Act and, in view of the other factual aspects, mentioned by us hereinabove, we are of the view that the abovesaid option was highly crucial and relevant in the decision making process and non-consideration of the said option would be serious. If the 3[rd] respondent had seriously considered the said option and had come to his independent view that such an option of bail cancellation would not be effective to further prevent the detenu from committing further prejudicial anti-social activities, etc., then the W.P(Crl.) No.776 of 2022 13 scenario would have been different. We are sitting in judicial review and we are only assessing as to whether highly crucial and relevant aspects in the facts of the case, was duly taken into account and reckoned by the decision maker, in the decision making process. Hence, on this last ground also, the petitioner is entitled to succeed. 16. A Three Judges Bench of the Apex Court in a recent decision rendered on 30.09.2022 in Crl.A.No.1708/2022 (arising out of SLP (Crl.) No.6683/2022], in the case in _**Sushanta Kumar Banik** v._ _**State of Tripura & Ors.**_ [(2022) SCC Online Sc 1333], has held, in paras 27 & 29 thereof, as follows : _“27. From the above decisions, it emerges that the requisite subjective satisfaction, the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influence his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order._ **==> picture [95 x 33] intentionally omitted <==** _29. The preventive detention is a serious invasion of personal liberty and the normal methods open to a person charged with commission of any offence to disprove the charge or to prove his innocence at the trial are not available to the person preventively detained and, therefore, in prevention detention jurisprudence whatever little safeguards the Constitution and the enactments authorizing such detention provide assume utmost importance and must be strictly adhered to”._ ## 17. The Apex Court, in the above said verdict, has placed reliance on the previous decisions of the Apex Court, in the case in _**Asha Devi** v._ W.P(Crl.) No.776 of 2022 14 ## _**Additional Chief Secretary to Government of Gujarat & anr.**_ [(1979) 1 SCC 222] as well as in the case in _**Sk Nizamuddin** v._ _**State of West Bengal**_ [(1975) 3 SCC 395]. In that regard, it is to be noted that in **Asha Devi's case** supra [(1979) 1 SCC 222], the Apex Court has held, in para 6, as follows: _“6. ..... if material or vital facts which would influence the minds of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before or are not considered by the detaining authority it would vitiate its subjective satisfaction rendering the detention order illegal”._ ## 18. In **Sk Nizamuddin's case** supra [(1975) 3 SCC 395], in ## paragraph 3, the Apex Court has held as follows: _“3. We should have thought that the fact that a criminal case is pending against the person who is sought to be proceeded against by way of preventive detention is a very material circumstance which ought to be placed before the District Magistrate. The circumstance might quite possible have an impact on his decision whether or not to make an order of detention. It is not altogether unlikely that the District Magistrate may in a given case take the view that since a criminal case is pending against the person sought to be detained, no order of detention should be made for the present, but the criminal case should be allowed to run its full course and only if it fails to result in conviction, then preventive detention should be resorted to. It would be most unfair to the person sought to be detained not to disclose the pendency of a criminal case against him to the District Magistrate”._ ## 19. In the abovesaid decision in **Sushanta Kumar Banik's** **case** _supra_ [(2022) SCC Online Sc 1333], the Three Judges' Bench of the Apex Court has reiterated the imperativeness and necessity to ensure that the live link between the last prejudicial activity and the purpose of detention have not snapped, on account of the delay factor, as otherwise, W.P(Crl.) No.776 of 2022 15 the impugned proceedings are liable for interdiction, etc. 20. The upshot of the above discussion is that the impugned decision making process, which led to the impugned detention proceedings, are liable for interdiction. Accordingly, it is ordered in the interest of justice, that the impugned Ext.P-2 detention order No.DCKNR/4543/2022/SS1 dated 05.05.2022, issued by the 3[rd] respondent-District Magistrate/District Collector, Kannur, as confirmed by the 1[st] respondent-State Government, as per G.O (Rt.) No. 1875/2022/Home dated 06.07.2022, will stand quashed and set aside. Consequently, it is ordered that the respondents, including the prison authorities concerned (R4-The Superintendent, Central Prison, Viyyur, Thrissur), shall forthwith release the petitioner and set him at liberty, in case his detention is not required in connection with any other cases. With these observations and directions, the above W.P(Crl.) will stand disposed of. **Sd/ALEXANDER THOMAS** **JUDGE** **Sd/JUDGE** **SOPHY THOMAS** vgd ## **WP(CRL.) 776/2022** ## **APPENDIX OF WP(CRL.) 776/2022** ## **PETITIONER'S EXHIBITS** |**EXHIBIT P-1**|**A TRUE COPY OF THE FINAL REPORT NO.**| |---|---| ||**280/SBKNRL/TDR/22 DATED 21/04/2022 SUBMITTED BY**| ||**THE 5TH RESPONDENT.**| |**EXHIBIT P-2**|**A TRUE COPY OF THE ORDER OF DETENTION NO.**| ||**DCKNR/4543/2022/SS1 DATED 05-05-2022, PASSED BY**| ||**THE 3RD RESPONDENT, THE DISTRICT MAGISTRATE.**| |**EXHIBIT P-3**|**A TRUE COPY OF THE ORDER OF APPROVAL NO.**| ||**HOME.SSA2/73/3022-HOME, DATED 23/05/2022 ISSUED**| ||**BY THE 1ST RESPONDENT.**| |**EXHIBIT P-4**|**A TRUE COPY OF THE LIST OF ENCLOSURES AND**| ||**ADDITIONAL SHEETS ANNEXED WITH EXHIBIT P-2 .**| |**EXHIBIT P-5**|**A TRUE COPY OF THE ORDER NO.HOME-S.S.A2/73/2022-**| ||**HOME DATED 08/07/2022 ISSUED BY THE 1ST**| ||**RESPONDENT.**| |**EXHIBIT P-6**|**A TRUE COPY OF DECLARATION DATED 08-06-2022**| ||**ISSUED BY THE WARD MEMBER, ULIKKAL PANCHAYATH.**| |**EXHIBIT P-7**|**A TRUE COPY OF CORONARY ANGIOPLASTY REPORT DATED**| ||**14/12/2017 ISSUED FROM PARIYARAM MEDICAL COLLEGE**| ||**HOSPITAL, KANNUR .**| |**EXHIBIT P-8**|**A TRUE COPY OF DISCHARGE SUMMARY DATED 19-12-2017**| ||**FROM PARIYARAM MEDICAL COLLEGE HOSPITAL, KANNUR.**| |**EXHIBIT P-9**|**A TRUE COPY OF DEATH CERTIFICATE DATED 23/05/2022**| ||**ISSUED FROM ULIKKAL GRAMA PANCHAYATH.**| |**EXHIBIT P-10**|**A TRUE COPY OF DEATH CERTIFICATE DATED 03/06/2022**| ||**ISSUED FROM ULIKKAL GRAMA PANCHAYATH.**| |**EXHIBIT P-11**|**A TRUE COPY OF THE COLUMN PUBLISHED IN**| ||**MATHRUBHUMI DAILY DATED 31.08.2022.**| |**EXHIBIT P-12**|**A TRUE COPY OF THE MEDICAL CERTIFICATE DATED**| ||**18.08.2022.**|