Thankappan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 WP(Crl.).No. 161 of 2010(S) --------------------------- PETITIONER(S): - --------------- THANKAPPAN, AGED 47 YEARS, S/O.NANAN NADAR, THOPPIL, ATTARIKATHU PUTHEN VEEDU, KARAKULAM, THIRUVANANTHAPURAM. BY ADV. SRI.M.DINESH RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY ADDL.CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, COLLECTORATE, THIRUVANANTHAPURAM. 3. DEPUTY COMMISSIONER OF POLICE (L & O), THIRUVANANTHAPURAM CITY, OFFICE OF THE COMMISSIONER OF POLICE, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI. K.J. MOHAMMED ANZAR FOR R1-3 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 11/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: # **R. BASANT & M.C. HARI RANI, JJ.** **------------------------------------------------W.P.(Cri) No. 161 of 2010-S ------------------------------------------------Dated this the 11[th] day of August, 2010** ## **JUDGMENT** ## **Basant,J.** The petitioner has come to this Court with this petition for issue of a writ of habeas corpus to direct the production of his son Vinod Alias Pravu Vinod (hereinafter referred to as the detenu), who is detained under an order of detention (Ext.P1) passed by the second respondent under Section 3 of the Kerala Anti-Social Activities (Prevention) Act (hereinafter referred to as the KAAPA). 2. The petitioner's son, the detenu has been categorized as a known rowdy. The 3[rd] respondent sponsored the detenu for detention as per a report dated 05/02/2010 submitted by the 3[rd] respondent to the 2[nd] respondent. After receipt of the said report which was received by the second respondent on ## **W.P.(Cri) No. 161 of 2010** -: 2 :- 22/02/2010, Ext.P1 order of detention dated 25/2/2010 was passed by the second respondent. 3. Altogether there are five cases pending against the detenu, the details of which are given in Ext.P1 order. Cases 1,3 and 4 have been charge sheeted after completing the investigation. Cases 2 and 5 referred to in Ext.P1 are still under investigation. Cases 1, 3, 4 and 5 were registered at the Nedumangadu police station whereas the 2[nd] case was registered at the Vilappilsala police station. The crimes were committed on various dates in 2007, 2008 and 2009. The detenu was arrested in execution of the order of detention on 26/2/2010. Approval under Section 3(3) of the KAAPA and confirmation of the order under Section 10(4) of the KAAPA have already been made, it is submitted. The detenu continues in custody from 26/2/2010. 4. Before us, the learned counsel for the petitioner and the learned Government Pleader have advanced their arguments. The learned counsel for the petitioner assails the impugned order of detention Ext.P1 and the continued detention of the detenu on the following grounds: (i) The Superintendent of Police, that is the 3[rd] respondent erred grossly in initiating proceedings under Section 3 of the KAAPA without and before getting any report from the Vilappilsala police station where the 2[nd] crime referred to in ## **W.P.(Cri) No. 161 of 2010** -: 3 :- Ext.P1 was registered and was being investigated. (ii) The 2[nd] respondent erred in reckoning the detenu as a known rowdy ignoring the fact that the investigation in two of the five cases, that is cases 2 and 5 referred to in Ext.P1 were still pending and final reports have not been filed. (iii) The impugned order of detention is bad for the reason that there is no proper application of mind by the second respondent before he passed the order of detention Ext.P1 under Section 3 of the KAAPA. (iv) The valuable constitutional right of the detenu to make an effective representation under Article 22(5) of the Constitution of India has been frustrated and rendered ineffective by the omission to furnish to the detenu copies of relevant documents. 5. We shall now proceed to consider the above four grounds urged by the learned counsel for the petitioner. 6. **Ground No.1:** The crux of the contention is that the 3[rd] respondent had submitted the report dated 05/02/2010 to the detaining authority, the second respondent without and before getting any report from his subordinate - the Sub Inspector of Police, Vilappilsala police station. Relying on Ext.P3, it is contended that action has been initiated by the 3[rd] respondent on the basis of a report received from the Deputy Superintendent of ## **W.P.(Cri) No. 161 of 2010** -: 4 :- Police, Nedumangad. The Superintendent of Police had not insisted on any report from the Sub Inspector of Police, Vilappilsala or anyone administratively superior to the Sub Inspector of Police, Vilappilsala. 7. We find no merit in this contention. It is true that the Circle Inspector of Police, Nedumangad through the Deputy Superintendent of Police, Nedumangad had submitted a report to the 3[rd] respondent. But, in order to justify initiation of action under Section 3 of the KAAPA by the sponsoring authority, that is the Superintendent of Police, it is not at all necessary or essential that he must wait to receive any report from any subordinate of his. 8. We extract Section 3(1) of the KAAPA below: ## **“3. Power to make orders for detaining Known Goondas and Known Rowdies:-** (1) The Government or an officer authorised under sub-section (2), may, if satisfied on information received from a Police Officer not below the rank of a Superintendent of Police with regard to the activities of any Known Goonda or Known Rowdy, that with a view to prevent such person from committing any antisocial activity within the State of Kerala in any ## **W.P.(Cri) No. 161 of 2010** -: 5 :- manner, it is necessary so to do, make an order directing that such person be detained.” (emphasis supplied) 9. Section 3(1) only mandates that information must be placed before the detaining authority by an officer not below the rank of a Superintendent of Police. In the instant case, Ext.P1 clearly shows that action was initiated against the detenu on the basis of the report dated 05/02/2010 received by the second respondent from the 3[rd] respondent. It is not the law at all that the Superintendent of Police, before submitting a report under Section 3(1) of the KAAPA,must wait for the report of any subordinate police officer to initiate steps for sponsoring detention of any person under Section 3(1) of the KAAPA. The Superintendent of Police, Thiruvananthapuram (Rural) must be held to be competent to submit a report under Sec.3(1) of the KAAPA to the detaining authority without waiting for any report from any subordinate of his. He can submit such report suo motu or at the request of any other police officer after properly considering the question. That no subordinate had initiated the proceedings originally, cannot at all vitiate his report under Sec. 3(1) of the KAAPA. In these circumstances, the challenge raised on Ground No.1 must necessarily fail. ## **W.P.(Cri) No. 161 of 2010** -: 6 :- **10. Ground No.2:** The contention is raised that out of the 5 cases relied on by the detaining authority as Case Nos. 1 to 5 in Ext.P1, two of them (Case Nos.2 and 5) i.e., Crime Nos.186/08 of Vilappilsala Police Station and Crime No.1090/09 of Nedumangad Police Station were still under investigation. The crux of the argument is that the investigation having not been completed, Sec.2(p)(iii) of the KAAPA cannot be said to be satisfied. Finding on investigation by a competent police officer can only be after culmination of investigation, argues the learned counsel. We find no merit in this contention. A Division Bench of this Court had in **Elizebath George v. State of Kerala** (2008 (4) KLT 425) clearly held that even without a final report submitted by the Investigating Officer it can be held that the Investigating Officer has “found on investigation that the detenu has committed an offence”. It is, of course, true that we have in **Sathi v. State of Kerala** (2009 (2) KLD 377 and **Ranjini v. State of Kerala** (2009 (3) KLT 500) doubted the correctness of the dictum in **Elizebath George** (supra). A reference to the Full Bench on that question is pending also in another case. But, at the moment, we are bound by the said decision. Moreover, in the instant case, even if these two cases were eschewed from consideration, to decide the question whether ## **W.P.(Cri) No. 161 of 2010** -: 7 :- the detenu is a known rowdy, the other three cases bring the detenu squarely within the sweep of the expression `known rowdy' under Sec.2(p)(iii) of the KAAPA. In these circumstances, this contention is found to be without any substance. The challenge on this ground is rejected. 11. **Ground No.3:** The learned counsel for the petitioner then contends that there has been no proper application of mind by the detaining authority before the impugned order of detention - Ext.P1, was passed. Mind has not been applied to the relevant facts and circumstances, argues the learned counsel. 12. It has consistently been held that before passing a valid order of detention under Sec.3 of the KAAPA, the detaining authority must apply his mind to the relevant circumstances and must entertain the twin satisfactions - the former/threshold/ initial satisfaction that the detenu is a known rowdy/known goonda and the latter/subjective satisfaction that the detention of such person is necessary to prevent him from indulging in antisocial activity. Both the former objective satisfaction as well as the latter subjective satisfaction must be entertained after proper application of mind. 13. In the instant case, we note that the detenu is found on investigation by the Investigating Officer to have committed ## **W.P.(Cri) No. 161 of 2010** -: 8 :- offences under Sec.2(t) of the KAAPA in three separate instances. Therefore, we find no merit in the contention that the former objective satisfaction has not been properly entertained. Application of mind on the question whether the detenu is a known rowdy is revealed clearly form the contents of Ext.P1 and therefore this first limb of the contention cannot succeed. 14. The latter subjective satisfaction is not justiciable. The law of preventive detention has often been described as the jurisprudence of suspicion. From the past conduct of a known rowdy/known goonda the detaining authority is to predicate or infer the possible future conduct. The detaining authority in the instant case with the help of the report of the sponsoring authority under Sec.3(1) of the KAAPA has applied his mind to the 5 cases referred to in Ext.P1 order and has come to the conclusion that preventive detention of the detenu is necessary in order to prevent him from committing anti-social activity. We have gone through the 5 cases referred to in Ext.P1 order. Those offences have been committed on various days between 23/9/07 and 2/10/09. The five offences have allegedly been committed on 23/9/07, 25/10/08, 1/9/09, 16/9/09 and 2/10/09. The detaining authority had applied his mind to these five crimes which allegedly have been committed by the detenu. ## **W.P.(Cri) No. 161 of 2010** -: 9 :- Application of mind on this aspect is revealed from Ext.P1. In these circumstances, we find no merit in the contention that there has been no proper application of mind before entertaining the twin satisfactions and before proceeding to pass Ext.P1 order. The challenge on this third ground must also, in these circumstances, fail. 15. **Ground No.4:** It is lastly contended that copies of all relevant documents have not been furnished to the detenu and consequently the right of the detenu under Art.22(5) of the Constitution and Sec.7(2) of the KAAPA have been infringed. No specific grievance is raised in the pleadings as to which document has not been furnished. There is only a vague and general plea that the relevant documents have not been furnished. 16. Such a vague assertion can attract only a vague reply and the respondents in their reply statements have asserted that all relevant copies have been furnished. 17. The learned Government Pleader points out that the file reveals convincingly that an index of the documents relied on had been prepared and copy thereof was furnished to the detenu on 26/2/10 when he was arrested in execution of Ext.P1 order of detention. Nine documents are listed in the index and the detenu has acknowledged that he has obtained the copies of ## **W.P.(Cri) No. 161 of 2010** -: 10 :- documents 1 to 9 in the index. That acknowledgment is seen at the bottom of that index itself. The Assistant Jailor of the Jail where the detenu was lodged has further authenticated that the 9 documents had been furnished to the detenu in his presence. In these circumstances, we find no merit in the contention that the relevant documents have not been furnished and this, in turn, had led to denial/frustration of the constitutional right under Art.22(5) of the Constitution and the statutory right under Sec.7(2) of the KAAPA. The challenge on this ground is also thus found to be without any substance. 18. No other contentions are raised. It is submitted that the period of six months would expire on 26/8/10. We have taken note of that submission. 19. In the result, this writ petition is dismissed. ## **Sd/-** **R. BASANT (Judge)** **Sd/M.C. HARI RANI (Judge)** ## **Nan/** //true copy// P.S. to Judge