Sulaiman v. State of Kerala & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.D.RAJAN WEDNESDAY, THE 13TH DAY OF MARCH 2013/22ND PHALGUNA 1934 WP(Crl.).No. 35 of 2013 (S) ---------------------------- PETITIONER(S): --------------- SULAIMAN, AGED 56 YEARS S/O.KHADER, VENTHATTIL HOUSE, OTTAYINI PUNNAYUR VILLAGE, THRISSUR DISTRICT-680664. BY ADVS.SRI.C.ANILKUMAR (KALLESSERIL) SRI.C.Y.VINOD KUMAR RESPONDENT(S): -------------- 1. STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TOGOVERNMENT DEPARTMENT OF HOME AFFAIRS, SECRETARIAT THIRUVANANTHAPURAM-695001. 2. THE PRINCIPAL SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM PIN-695001. 3. THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE, THRISSUR DISTRICT-680001. 4. DISTRICT POLICE CHIEF(RURAL), THRISSUR DISTRICT-680001. 5. THE SUB INSPECTOR OF POLICE, VADAKKEKAD POLICE STATION, THRISSUR DISTRICT-679562. R1-R4 BY ADV. ADDL.DGP SRI.TOM JOSE PADINJAREKKARA R BY GOVERNMENT PLEADER SHIBU JOSEPH THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 13-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(CRL.) NO.35/2013 APPENDIX PETITIONER(S) EXHIBITS EXT-P1 TRUE COPY OF THE ORDER OF DETENTION NO.C1.54930/12 DATED 1.10.2012 ISSUED BY THE 3RD RESPONDENT EXT-P2 TRUE COPY OF THE ORDER OF APPROVAL ISSUEF FROM THE HOME(SS.A) DEPARTMENT VIDE NO.86086/SS.A1/2012/HOME DATED 17.10.2012. EXT-P3 TRUE COPY OF THE ORDER OF ACQUITTAL DATED 7.11.2012 IN C.C.1067/2012(CR.NO.375/2012 OF VADAKKEKAD POLICE STATION),KUNNAMKULAM. EXT-P4 TRUE COPY OF THE AFFIDAVIT FILED BY THE DEFACTO COMPLAINANT IN CRL.M.C.710/2012 ON 3.4.2012 BEFORE THE HON'BLE SESSION COURT,THRISUR. EXT-P5 TRUE COPY OF THE ORDER DATED 11.4.2012 IN CRL.M.C.710/2012 ON THE FILE OF THE HON'BLE SESSION'S COURT,THRISSUR. RESPONDENTS' EXHIBITS NIL /TRUE COPY/ P.S. TO JUDGE. ## **PIUS C.KURIAKOSE & P.D.RAJAN JJ.** ## **-----------------------W.P.(Crl.) . NO. 35 OF 2013 ------------------------** Dated this the 12[th] day of March, 2013 ## **JUDGMENT** ## Pius C.Kuriakose,J Under challenge, in this writ petition filed under Article 226 of the Constitution seeking a writ of Habeas Corpus commanding the respondents to release one Shafi(hereinafter referred to as the detenue) son of the petitioner who is undergoing detention pursuant to Ext.P1 order issued under the provisions of the Kerala Anti-Social Activities (Prevention) Act 2007((KAA(P)A for short), is Ext.P1 order. Ext.P1 order of detention is issued by the 3[rd] respondent District Magistrate Thrissur District, directing that the detenu will be placed under detention immediately at Central Prison in accordance with the provisions of KAA(P)A 2007 with a view to prevent him from acting in a manner indulging in anti-social activities which should cause harm, danger or threat to public life and property amongst the public of Thrissur District. Ext.P1 is issued under the W.P.(Crl.) No.35 /2013 2 premise that Shafi, the detenu, is a 'known rowdy' as envisaged by Section 2 (p) read with section 2 (t)(c) of KAA(P)A 2007. In this writ petition Ext.P1 is challenged on various grounds. 2. Representing respondents 1 and 2, the Additional Secretary to the State Government, Home Department, has filed a detailed counter affidavit justifying Ext.P1. The 3[rd] and 4[th] respondent have also filed a separate counter affidavits. 3. We have heard the submissions of Sri.C.Anilkumar Kaaleesseril learned counsel for the petitioner and those of Sri.Tom Jose Padinjarekkara learned Additional Director General of Prosecutions. 4. Very extensive submissions were addressed before us by Mr. Anilkumar on the basis of the grounds raised in the writ petition. The learned counsel drew our attention to the various materials placed on record particularly Ext.P1 detention order. He would forcefully argue that the detenu cannot be a 'known rowdy' even according to the statutory definition of that expression given under Section 2 (p) (i) (ii)(iii) and 2 (t) (i) and (ii) of the Anti-Social Activities ( Prevention) Act 2007. According to the learned counsel, Crime No.439/2006 registered against W.P.(Crl.) No.35 /2013 3 Shafi under Sections 341, 323, 324 and 324 and 34 of IPC is one of the cases reckoned with by the sponsoring authority and the detaining authority for finding that Shafi is a known rowdy. Relying on Ext.P1 itself the learned counsel submitted that Crime No. 439/2006 was compounded between Shafi and the defacto complainant and Shafi was given acquittal in that case. Referring to the proceedings of the Sub Divisional Police Officer Kunnamkulam (Ext. P1 (iii)), the learned counsel submitted that the second case among the five cases referred to in that order is Crime No. 146/2011 and the offence is under Section 283 IPC only and cannot be treated as an offence envisaged under Section 2(p)(t). The learned counsel also submitted that the 4[th] case therein is Crime No.282/11 which is registered under Section 107 Cr.P.C. This again is not an offence as contemplated by Section 2(p)(t). The learned counsel also submitted that there is no reasonable proximity between the order of detention and the date of commissioning of the last offence. The gap between the two is four months, so pointed out by the learned counsel. 5. Per Contra, the learned Additional Director General of W.P.(Crl.) No.35 /2013 4 Prosecution Sri.Tom Jose Padinjerakkara would justify Ext.P1. He submitted that Crime No. 439/2006 is not among the cases which was reckoned with for the purpose of passing Ext.P1 detention order. The number of that case was mentioned only simultaneously. The cases taken into account were: (i) Crime No. 281/2011 of Vadakkekad Police Station under section 143, 147, 341, 423, 324, 308,427, 501 (ii) read with Section 149 IPC dated 23/4/2011. (ii). Crime No.449/2011 of Vadakkekad Police Station under Sections 341, 324, 308 read with Section 34 IPC dated 03/07/2011. (iii) Crime No. 375/2012 of Vadakkekad Police Station under Section 341 and 323 IPC dated 13/6/2012. (iv). Crime No.307/2012 of Chavakkad Police Station under section 392, 323 read with Section 34 IPC dated 31/3/2012. The accusations against the registration was pursuant to enquiry conducted by the police and the offences are grave. The Government examined the matter thoroughly and objective satisfaction for accusing the detenue as 'known rowdy' was entered. Thereafter on the basis of the enquiry subjective satisfaction was entered that the detenue is detained immediately from the point of view of public safety, security and W.P.(Crl.) No.35 /2013 5 peace of the society . There is no infirmity in what was done by the Government and the statutory authority, so submitted the learned Additional Director General of Prosecution. 6. Mr.Anilkumar would refer to the Judgment of the Supreme Court in Union of India v. Ranu Bhandari ( 2008) 17 Supreme Court Cases 348) and submit that the documents pertaining to Crime No. 439/2006 considered by the detaining authority were not supplied to the detenu and this has resulted in serious prejudice. Sri.Tom Jose Padinjarekkara learned additional Director General of Prosecution would place strong reliance on the judgment of the Supreme Court in D.M.Nagaraja v. the Government of Karnataka and Others (2011 KHC 4868) . It was submitted that the essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing. Sri.Tom Jose Padinjarekkara opposed the argument of the learned counsel for the petitioner that there is no nexus between the last offence and the date of Ext.P1. There has been no delay on the part of the authorities. The Additional Director General referred to the relevant dates in this context. W.P.(Crl.) No.35 /2013 6 7. Having given our anxious consideration to the submissions addressed at the Bar, we are of the view that the grounds raised by the petitioner against Ext.P1 order are unsustainable. Crime No. 439/2006 is not one of the cases which was reckoned with by the authorities for the purpose of finding that Shafi, the petitioner's son, is a known rowdy. Ext.P1 (111) Order No, 415/GL/KSD/2011 dated 18/11/2011 issued by the Sub Divisional Police Officer, Kunnamkulam was issued by that officer in an entirely different context i.e. for the purpose of opening Rowdy History Sheet against him. The cases reckoned with for the purpose of passage of Ext.P1 order are Crime Nos. 281/2011, 449/2011, 375/2012 and 307/2012 . No prejudice has been caused to Shafi, the detenu, on account of the non supply of documents pertaining to crime No. 439/2006 which was never considered by the District Magistrate for the purpose of arriving at objective and subjective satisfaction necessary for the purpose of passing an order in the nature of Ext.P1. Perusal of the records will show that Shafi himself has acknowledged under his own handwriting that he is in receipt of all the documents relied on by the authorities. Having regard to the 7 W.P.(Crl.) No.35 /2013 dates of the offences and the date of passage of Ext.P1, we are convinced that there has been no serious delay on the part of the authorities. In short, the challenge against Ext.P1 has failed. The result is that the writ petition fails and the same will stand dismissed. Sd/- **PIUS C.KURIAKOSE, JUDGE** **Sd/-** **P.D.RAJAN JUDGE.** dpk /True copy/ P.S to Judge. W.P.(Crl.) No.35 /2013 8 W.P.(Crl.) No.35 /2013 9 W.P.(Crl.) No.35 /2013 10 W.P.(Crl.) No.35 /2013 11