USHA A.K. v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 30TH DAY OF OCTOBER 2012/8TH KARTHIKA 1934 WP(Crl.).No. 369 of 2012 (S) ---------------------------- PETITIONER: ---------- USHA A.K., AGED 36 YEARS W/O.PGBIJU, ASARIKANDY HOUSE, VATTIYAM THODU (P.O) VAYATHUR AMSOM DESOM, KANNUR DISTRICT BY ADV. SMT.C.G.PREETHA RESPONDENTS: ------------ 1. STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT (HOME & VIGILANCE), S.S.A.DEPARTMENT ROOM NO.371, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695001 2. THE DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, KANNUR-670003 3. THE DISTRICT POLICE CHIEF, KANNUR-670003 4. THE SUB INSPECTOR OF POLICE ULIKKAL POLICE STATION, KANNUR-670705 5. THE SUPERINTENDENT OF PRISON, VIYYUR-680010 BY ADV. ADDL.STATE PUBLIC PROSECUTOR SRI.K.I.ABDUL RASHEED. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 17-10-2012, THE COURT ON 30-10-2012 DELIVERED THE FOLLOWING: W.P.(Crl.).369/2012 ## APPENDIX ## PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE ORDER OF DETENTION PASSED BY THE 2ND RESPONDENT DATED 23.4.2012 EXT.P2: TRUE COPY OF THE NOTES ON GROUNDS OF DETENTION PREPARED IN MALAYALAM. EXT.P3: A TRUE COPY OF THE FINAL REPORT FOR TAKING ACTION UNDER THE KAAP ACT, 2007 SUBMITTED BY THE DISTRICT POLICE CHIEF, KANNUR BEFORE THE THE DISTRICT MAGISTRATE, KANNUR. EXT.P4: A TRUE COPY OF THE PRELIMINARY REPORT FOR ACTION UNDER THE KERALA ANTI-SOCIAL ACTIVITIES (PREVENTION)ACT, 2007 SUBMITTED BY THE 4TH RESPONDENT. EXT.P5: A TRUE COPY OF THE FIR IN CRIME NO.67/2005 OF ULIKKAL POLICE STATION ALONG WITH CONNECTED RECORDS. EXT.P6: A TRUE COPY OF THE FINAL REPORT IN CRIME & OCCURRENCE REPORT NO.5/2007 OF SREEKANDAPURAM EXCISE RANGE ALONG WITH CONNECTED RECORDS. EXT.P7: A TRUE COPY OF THE FIR IN CRIME NO.490/2011 OF ULIKKAL POLICE STATION. EXT.P8: TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 1ST RESPONDENT DATED 7.5.2012 EXT.P9: TRUE COPY OF THE REPRESENTATION SUBMITTRED BEFORE THE 2ND RESPONDENT DATED 7.5.2012. EXT.P10: TRUE COPY OF THE ORDER DATED 19.5.2012 PASSED BY THE 1ST RESPONDENT. EXT.P11: TRUE COPY OF THE ORDER DATED 4.7.2012 ISSUED BY THE 1ST RESPONDENT. RESPONDENTS' EXHIBITS: // True Copy // P.S. to Judge. ## **PIUS C. KURIAKOSE & BABU MATHEW P. JOSEPH, JJ.** -----------------------------------------------------------W.P.(Crl.) No. 369 of 2012 S ------------------------------------------------------------Dated this the 30[th] day of October, 2012 ## **JUDGMENT** ## Babu Mathew P. Joseph, J. Under challenge in this writ petition are Exts.P1, P10 and P11 orders. By Ext.P1 order dated 23.4.2012 of the second respondent, the petitioner's husband was placed under preventive detention with immediate effect at Kannur Central Jail. It was done by the second respondent exercising his powers under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 [for short, KAA(P)A]. Ext.P1 order has been approved by the Government, the first respondent, as per order dated 8.5.2012. The detenu preferred Ext.P8 representation before the first respondent for reviewing and revoking Ext.P1 order and for setting him free. But, that representation has been rejected by the first respondent by issuing Ext.P10 order dated 19.5.2012. The detenu also preferred Ext.P9 representation before the [W.P.(Crl.)369/2012] 2 Advisory Board for revoking the detention order and for setting him free. The Advisory Board submitted a report dated 26.6.2012 finding that there was sufficient cause to detain the detenu and recommended for his continued detention. Thereafter, the first respondent has issued Ext.P11 order dated 4.7.2012 confirming the order of detention. Based on Ext.P1 order, the detenu has been under detention from 1.5.2012 onwards. The petitioner challenges Exts.P1, P10 and P11 orders on various grounds in this writ petition. 2. Heard Smt. C.G. Preetha, the learned counsel appearing for the petitioner, and Shri. K.I. Abdul Rasheed, the learned Addl. State Public Prosecutor. 3. Exhibit P4 preliminary report for action against the detenu under KAA(P)A has been submitted by the fourth respondent, the Sub Inspector of Police, Ulikkal Police Station. Ext.P3 Final Report for action against the detenu under KAA(P)A has been submitted by the third respondent, the District Police Chief, Kannur, before the second respondent, the District Magistrate and District Collector, Kannur. Three criminal cases were relied on by the authorities for finding the detenu as 'known goonda' and for finding that he is indulging himself in [W.P.(Crl.)369/2012] 3 anti-social activities necessitating his detention. Out of them, in one case, the detenu was convicted and sentenced and in other two cases he was charge sheeted. The details of those cases are as follows: (1) OR No.05/07 of the Excise Range Office, Sreekandapuram, reported on 16.2.2007 for the offence under Section 8(2) of the Kerala Abkari Act. The gist of the case is as follows: While the Preventive Officer of the Excise Enforcement and Anti-Narcotic Cell, Kannur and party were conducting patrol duty from Ulikkal to Mattini, they found the detenu standing near a public well at Vattiyamthodu town possessing a plastic sack. On seeing the Excise party, he eloped from the spot leaving the sack there. On searching the sack, 33 packets containing 100 ml. each of Karnataka made arrack were found. Excise party seized those articles as per seizure mahazar in the presence of witnesses. On investigation, the detenu was identified and arrayed as an accused. He surrendered before the court on 22.3.2007. After completing investigation, the detenu was charge sheeted for the offence under Section 8(2) of the Kerala Abkari [W.P.(Crl.)369/2012] 4 Act. The case was numbered as S.C.553 of 2008. The detenu was found guilty of the offence charged and convicted him thereunder by the Additional Sessions Court (Adhoc)-I, Thalassery. He was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1 lakh, in default, to undergo simple imprisonment for one year. (2) Crime No.67/05 of Ulikkal Police Station reported on 1.7.2005 for the offence under Section 8(2) of the Kerala Abkari Act. The gist of the case is as follows: The Sub Inspector of Police, Ulikkal Police Station and party, on getting reliable information regarding the illegal transportation of Karnataka made packet arrack in a jeep bearing Reg.No.KL-06-5503 from Kuttupuzha to Ulikkal side, reached Keyaparamba and, seeing that jeep was coming from Mattini side, showed signal for stopping the vehicle. On seeing the police party, the detenu left the jeep and fled away. On searching the jeep, 4500 packets containing 100 ml. each of Karnataka made arrack were found. The police seized those articles as per seizure mahazar in the presence of witnesses. On [W.P.(Crl.)369/2012] 5 investigation, the detenu was identified to be an accused and hence arrayed him as accused No.2. He surrendered before the court on 27.7.2005. He had undergone judicial custody till 12.9.2005. After investigation, the detenu was charge sheeted alleging the said offence on 18.4.2006 along with the first accused. The case was numbered as S.C.543 of 2007 which is now pending trial in the Additional Sessions Court (Adhoc)-I, Thalassery. (3) Crime No.490 of 2011 of Ulikkal Police Station reported on 26.12.2011 as per a complaint preferred by Jamirul Islam, S/o. Badusha Shek, West Bengal, now residing at Padiyoor. The offence alleged is under Section 376(2)(g) of IPC. The gist of the case is as follows: While the complainant and his sister-in-law Sukthara with his friend were waiting near Perumpadi check post for a vehicle for returning to Iritty at 9 p.m. on 24.12.2011, the detenu and two others who were there in a lorry bearing Reg.No.KL-59-8329 offered them a lift to Ulikkal. Accordingly, all of them entered in the lorry and occupied the cabin. When they reached near Vayathur river, [W.P.(Crl.)369/2012] 6 stopped the lorry and restrained the complainant and his friend in the cabin and forcibly took Sukthara to the river bank and the detenu and others committed gang rape etc. The detenu was arrested on 26.12.2011 and produced before the court on 27.12.2011. He was remanded. The detenu and three others were charge sheeted in this case on 23.3.2012 alleging the offences under Sections 376(2)(g), 342, 323 and 366A r/w Section 34 of IPC. 4. The detenu was found to be a 'known goonda' as defined under Section 2(o)(i) of KAA(P)A based on the fact that he was found guilty by the Additional Sessions Court, (Adhoc)-I, Thalassery in S.C.No.553 of 2008 on 15.10.2011 of the offence under Section 8(2) of the Kerala Abkari Act. He was convicted and sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs. 1 lakh, in default, to undergo simple imprisonment for one year. 5. The detenu was found to be indulging in anti-social activities by the fact that he has involved himself in two charge sheeted cases viz. Crime Nos. 67 of 2005 and 490 of 2011 of Ulikkal Police Station. Other relevant findings against the detenu [W.P.(Crl.)369/2012] 7 have also been entered in Ext.P1 detention order by the second respondent. 6. Learned counsel for the petitioner submitted that the detenu has preferred an appeal, Crl. Appeal No.1911 of 2011, before this Court against the finding of guilty and conviction and sentence passed against him in S.C.No.553 of 2008 by the Additional Sessions Court (Adhoc)-I, Thalassery. Therefore, no finality could be attached to the finding of guilty of the detenu of the offence under Section 8(2) of the Kerala Abkari Act and hence Section 2(o)(i) of KAA(P)A is not attracted for finding him to be a 'known goonda', she further submitted. Learned Addl. State Public Prosecutor disputed this contention by submitting that in the appeal preferred by the detenu, no suspension of guilty and conviction has been granted by this Court and the sentence alone has been suspended. This is not disputed by the learned counsel for the petitioner. Since the finding of guilty and conviction passed against the detenu are still in force, the argument of the learned counsel that the detenu cannot be found to be a 'known goonda' under Section 2(o)(i) cannot be accepted. He continues to be a 'known goonda' as defined under these [W.P.(Crl.)369/2012] 8 provisions as the finding of guilty is still in force. Moreover, KAA(P)A does not admit any exception in the case of a person who is found guilty merely based on pendency of appeal or other proceedings preferred by him against such finding of guilty. 7. Learned counsel for the petitioner submitted that it was noted in Ext.P3 report of the third respondent that the detenu was under judicial custody with effect from 27.12.2011 in Crime No.490 of 2011. Also noted that he was likely to seek bail in the above case. The second respondent, while passing Ext.P1 detention order, did not refer to the said facts noted in Ext.P3 or apply his mind to these facts. These facts do not find a place in Ext.P1 detention order. The detaining authority ought to have considered the details concerning those facts and the chances of releasing the petitioner on bail before passing Ext.P1 order. No documents proving the fact that the detenu was under judicial custody in Crime No.490 of 2011 and he had moved for bail in that case were given to the second respondent for his consideration, she further submitted. It is true that the second respondent has not referred to these facts in so many words in Ext.P1. But, merely based on this fact, it cannot be found that the [W.P.(Crl.)369/2012] 9 second respondent has not applied his mind to the facts of judicial custody and the chances of releasing on bail. The second respondent has clearly stated in paragraph 2 of Ext.P1 that he has carefully examined the report of the third respondent. Therefore, it can be found that he has gone through and considered the facts stated by the third respondent regarding the judicial custody of the detenu and the chances of releasing him on bail. We see nothing on record to find otherwise. Of course, there is nothing on record to show that an order showing the fact that the detenu was under judicial custody or a copy of the bail application moved by him were with the second respondent while considering the question of detention of the detenu. 8. Learned counsel for the petitioner relied on the decisions rendered by the Supreme Court in **Rekha** v. **State of Tamil Nad** u [(2011) 5 SCC 244] and in **Yumman Ongbi Lembi Leima** v. **State of Manipur** [(2012) 2SCC 176] and on the decisions rendered by this Court in **Jameela** v. **State of Kerala** [2008(1) KLT SN 21 (C.No.25)] and in **Beji** v. **State of Kerala** [2012 (3) KLT 255] in support of her contention that the second respondent [W.P.(Crl.)369/2012] 10 has not applied his mind, in the absence of an order remanding the detenu to judicial custody and his application for bail before him, while passing Ext.P1 detention order. Learned Addl. State Public Prosecutor, relying on the decision rendered by the Supreme Court in **K. Varadharaj** v. **State of Tamil Nadu** [(2002) 6 SCC 735], submitted that, in all cases, the production and consideration of documents regarding judicial custody and chances of releasing on bail are not required. That the detenu was under judicial custody in Crime No.490 of 2011 with effect from 27.12.2011 is not a disputed fact. It is also an admitted fact that the detenu was released on bail in Crime No.490 of 2011 by order dated 24.4.2012 on B.A.No. 2548 of 2012 of this Court. So, on the next day of passing Ext.P1 detention order, the detenu was granted bail by this Court. In view of this fact, the apprehension entertained by the third respondent in Ext.P3 report that the detenu was likely to seek bail in Crime No.490 of 2011 cannot be said to be without basis. In such a circumstance, keeping in view of the criminal past of the detenu and his frequency of indulging in criminal activities, the third respondent submitted in his report that the detenu should not be allowed to move out of custody and requested for preventive detention in [W.P.(Crl.)369/2012] 11 order to ensure his free movement is impeded in the interests of public safety. The second respondent has considered these aspects and arrived at the conclusions in Ext.P1. In the peculiar facts and circumstances involved in this case, we find that the decisions relied on by the learned counsel for the petitioner cannot be applied to the facts of this case. 9. Learned counsel for the petitioner further contended that the second respondent has not applied his mind while passing Ext.P1 order because the necessary documents required for arriving at a proper conclusion were not supplied to him before passing that order. She submitted that the 8 documents described under paragraph 4 of this writ petition alone had been served on the detenu and those documents alone had been submitted to the second respondent for considering the detention of the detenu. Learned Addl. State Public Prosecutor has produced the files concerning detention of the detenu for our perusal. It can be seen from the acknowledgment of the documents served on the detenu that he was served with 20 items of documents. In the light of this acknowledgment, the contention of the learned counsel cannot be accepted. [W.P.(Crl.)369/2012] 12 We have considered the arguments advanced by the learned counsel for the petitioner as well as the learned Addl. State Public Prosecutor. We find no reason to interfere with the impugned orders. Therefore, this writ petition is dismissed. Sd/- **PIUS C. KURIAKOSE, JUDGE.** **Sd/-** **BABU MATHEW P. JOSEPH, JUDGE.** krs.