Valsala Kumari v. State of Kerala and Others

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 28TH JULY 2010 / 6TH SRAVANA 1932 WP(Crl.).No. 213 of 2010(S) --------------------------- PETITIONER(S): - --------------- VALSALA KUMARI 42 YEARS, W/O. BABU, RESIDING AT SANTHOSH BHAVAN, VAYALA, KOLLAM DISTRICT. BY ADV. SRI.C.RAJENDRAN SMT.R.S.SREEVIDYA RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE, KOLLAM. 3. THE DISTRICT SUPERINTENDENT OF POLICE, KOLLAM. 4. THE CIRCLE INSPECTOR OF POLICE, KADAKKAL, KOLLAM. 5. THE SUB INSPECTOR OF POLICE, KADAKKAL POLICE STATION, KOLLAM. 6. THE SUPERINTENDENT OF CENTRAL PRISON, THIRUVANANTHAPURAM. SR. GOVERNMENT PLEADER SRI. K.J. MOHAMMED ANZAR FOR R1 TO 6 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 28/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R. BASANT & M.C. HARI RANI, JJ.** **------------------------------------------------W.P.(Cri) No. 213 of 2010-S ------------------------------------------------Dated this the 28[th] day of July, 2010** ## **JUDGMENT** ## **Basant,J.** The petitioner has come to this Court with this petition for issue of a writ of habeas corpus to direct production of her son Satheesh @ Karimunda, S/o. Babu, (hereinafter referred to as `the detenu') who stands detained under the provisions of Sec.3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (for short `the KAAPA') on the basis of Ext.P1 order of detention dated 20/1/10 passed by the 2[nd] respondent - the District Magistrate. He was arrested in execution of the said order of detention on 21/2/10. He is classified as `known rowdy'. There are five earlier crimes against the detenu relied on by the detaining authority. 2. The order of detention was duly approved by the ## **W.P.(Cri) No. 213 of 2010** -: 2 :- Government under Sec.3(3) of the KAAPA vide order dated 4/3/10. The matter was referred to the Advisory Board. On the basis of the opinion of the Advisory Board, Sec.10(4) order confirming detention and authorising detention till 21/8/10 was passed on 28/4/10. The detenu continues to be in preventive detention now. 3. Various contentions have been raised before us by the learned counsel for the petitioner. We have heard the learned Government Pleader also. The learned counsel for the petitioner, in the course of arguments, presses only one contention for consideration. 4. According to the learned counsel for the petitioner, the petitioner had submitted a representation dated 25/5/10. Ext.P15 is the copy of that representation. This writ petition was filed on 4/6/10. According to the petitioner, the detenu has not been informed of the fate of Ext.P15 representation dated 25/5/10. The learned counsel for the petitioner argues that this is in gross violation of the constitutional mandate under Art.22 (5) of the Constitution. The right to be afforded an earliest opportunity to make a representation against the order of detention must bring within its wings, the indisputable consequent right to have his representation considered on an ## **W.P.(Cri) No. 213 of 2010** -: 3 :- early date. In the instant case, till this writ petition was filed or till this date, the representation has not been considered and the result thereof has not been communicated to the detenu. 5. This contention is raised specifically in paragraph-11 and Ground-J of the writ petition. We extract the relevant portions below: “ - Para 11. ...... The petitioner submitted representation before the Governor through the Additional Chief Secretary, Home Department, dated 25/5/2010 for revoking the detention order. A true photocopy of the said representation is produced herewith and marked as - Exhibit P15. The detenue was not given any reply so far. There is no real and proper consideration of the representation by an unbiased person. In Ext.P15 the detenue had specifically requested that his representation may be considered by an official other than those who approved and confirmed the detention order.” “ - Ground J. ..... Though the detenue had submitted a representation on 25/5/2010, so far the representation has not been considered and no reply had been ## **W.P.(Cri) No. 213 of 2010** -: 4 :- given to the detenue. So there is no real and proper consideration of the representation of the detenue without delay.” (emphasis supplied) 6. It is pointed out that these contentions raised in paragraph-11 and Ground-J are not effectively met. In paragraph-22 of the counter statement filed by the 3[rd] respondent, the relevant contention and the factual averments are met with the following cryptic response. We extract paragraph-22 below: “22. Ground-J is devoid of merits. The representation of the detenue given to the 1[st] respondent was rejected after a due and proper consideration. And the same was communicated to the detenue.” 7. In the counter affidavit filed by the 2[nd] respondent, there is no specific reference to this contention raised in paragraph-11 and Ground-J of the writ petition. Thus the grievance raised by the petitioner/the detenu that the representation Ext.P15 has not been considered is responded with the lukewarm statement that ## **W.P.(Cri) No. 213 of 2010** -: 5 :- the representation given to the Government was rejected after a due and proper consideration. That statement is made not by the Government; nor by the Officer who acted on the delegated authority given to him by the Government. The date on which it was considered, the date on which the order was passed on the representation, the date on which the same was communicated have all not been revealed in the counter statement of the respondents; nor was a copy of the order produced along with the counter statement. It is in these circumstances that the arguments commenced and the learned counsel for the petitioner advanced his arguments on 22/7/10. After the dictation commenced on 23/7/10, a memo has been filed by the learned Senior Government Pleader Sri.K.J. Mohammed Anzar to bring to the notice of this Court copy of a document produced as Annexure-I under which the detenu had acknowledged that communication informing him about the rejection of his representation - Ext.P15. 8. We must express our extreme dissatisfaction with the manner in which the respondents have conducted their case. Even till argument of the petitioner's counsel was completed, except the very vague averments in the counter statement filed by the 3[rd] respondent which we have already extracted in ## **W.P.(Cri) No. 213 of 2010** -: 6 :- paragraph-6 above, there was no specific contention or materials placed before Court to show that the said representation - Ext.P15 was considered on any specific date or the order was communicated to the detenu. However, after production of Annexure-I, it is revealed that the representation was considered; it was rejected by order dated 1/6/10 and that that order had been served on the detenu on 5/6/10. 9. Further arguments were advanced by the learned counsel for the petitioner. The learned counsel for the petitioner submits that this sort of piecemeal production of material and half hearted pleas raised by the respondents have caused great prejudice and hardship to the petitioner. The petitioner now wants to advance a contention that Annexure-I order dated 1/6/10 does not at all reveal a real, proper and unbiased consideration which the petitioner's representation is entitled to as per the decision in **Babu v. State of Kerala** (2010 (1) KLT 230) and the earlier decision in **Shruthi v. State of Kerala** (2009 (4) KLT 893). 10. In those decisions, after an exhaustive review of the binding precedents of the Supreme Court on this aspect, this Court had come to the conclusion that the minimum that a detenu is entitled, under law, in assertion of his constitutional ## **W.P.(Cri) No. 213 of 2010** -: 7 :- rights under Art.22(5) of the Constitution and the statutory right under Sec.7(2) is that his representation must receive a real and proper consideration. 11. The counsel argues that, at any rate, Annexure-I belatedly produced cannot give the detenu the satisfaction that his representation - Ext.P15 has received such real and proper consideration which he is entitled to under **Babu** and **Shruthi** referred above. 12. We must say that except Annexure-I produced belatedly, no better materials have been placed before us to show that Ext.P15 had received the requisite consideration from the Additional Chief Secretary. Real and proper consideration must be given. The order need not be a speaking order. It is trite that even though reasons need not be given and speaking order need not be passed, it is desirable that “that a brief expression of the principal reasons is made” (see **Bhut Nath Mete v. State of W.B. -** [1974] 1 SCC 645). Disclosure of reasons need not be rigidly insisted. But the court must be satisfied that the representation has received real and proper consideration. We are not adverting to the precedents and the principles of law all over again. Suffice it to say that in **Babu** and **Shruthi** (supra) we have adverted to this aspect in detail. ## **W.P.(Cri) No. 213 of 2010** -: 8 :- 13. That takes us to the final short question as to whether Annexure-I order reveals such real and proper consideration. Ext.P15 is the representation. Annexure-1 is the order rejecting the same communicated to the detenu. The question is whether the representation Ext.P15 has received the real and proper consideration which it is entitled to, under Annexure-I. 14. We have been taken through the details of the submissions made in Ext.P15 representation. Various contentions are raised. It is contended that no threat to pubic order as distinguished from a mere threat to law and order can be deciphered from the cases registered against the detenu. It is specifically contended that one of the cases relates to an allegation made by a former lover of the detenu that he has not married her though he had indulged in sexual intercourse with her on the promise of marriage. The detenu has raised a specific contention, referring to binding precedents, that no offence is thereby revealed and that, at any rate, the same cannot be made use of by the detaining authority to entertain the latter subjective satisfaction under Sec.3 of the KAAPA. Annexure-1 does not at all give us the satisfaction that those pleas raised in the representation - Ext.P15, have been adverted to, considered or rejected after such consideration. In short, ## **W.P.(Cri) No. 213 of 2010** -: 9 :- Annexure-I does not give us the satisfaction that Ext.P15 representation has received the real and proper consideration which it entitles to. 15. Annexure-I belatedly produced by the Senior Government Pleader along with a memo is in Malayalam and translated to English, it reads as follows: “The petition referred above (Ext.P15) has been examined by the Additional Chief Secretary, Home, Vigilance, on behalf of the Government. The Government is satisfied that there are sufficient reasons for detaining you in accordance with the relevant provisions of the KAAPA. In these circumstances, you are informed that your representation has been rejected.” 16. We have already taken the view in **Babu** and **Shruthi** (supra) that a reasoned decision is not necessary. A speaking order need not be passed. But mind must have been applied to the contentions raised in the representation. They must have been considered and a decision taken after due application of mind. The order may not reveal such application of mind. But ## **W.P.(Cri) No. 213 of 2010** -: 10 :- other materials can induce the satisfaction in the mind of the court that such consideration had preceded the rejection of the order. In the instant case surprisingly, no materials have been placed before us by the respondents to induce the satisfaction in us that the Additional Chief Secretary who considered the representation on behalf of the Government (on the basis of delegation in his favour by the Government) had even seen Ext.P15 representation. It was upto the respondents to produce the relevant file. It passes our comprehension as to why the file has not been placed before us. While adverting to this contention we must note that the representation was not considered till 1/6/10, though it was submitted on 26/5/10. Even in the counter statement filed, the details of Annexure-I order were not revealed. The petitioner had raised a plea in the writ petition that his representation has not been considered at all and that, at any rate, it has not received the real and proper consideration which it deserves. In the light of the very unsatisfactory pleadings raised it was definitely for the respondents to place the relevant file before Court to induce the requisite satisfaction in the mind of the court that Ext.P15 representation had received the real and proper consideration which it deserved before Annexure-I order was passed. The ## **W.P.(Cri) No. 213 of 2010** -: 11 :- order passed by the Additional Chief Secretary is not placed before us. Communication of that order by the Deputy Secretary i.e., Annexure-I alone is placed before us. That order - Annexure-I does not at all reveal to us that the contentions raised in Ext.P15 representation have been considered by the Additional Chief Secretary. Annexure-I is an order that can be used in any case of KAAPA detention of any detenu. It is so nonspecific, vague and general that it is impossible to infer or assume that any application of mind to the contentions raised in Ext.P15 had preceded the issue of Annexure-I. In these circumstances, the conclusion appears to be inevitable in the nature of the pleadings raised before us and the materials produced, that Ext.P15 representation has not received the real and proper consideration which it deserves in the light of the precedents. The challenge raised must succeed on that ground. ## 17. **In the result:** - (a) This writ petition is allowed. - (b) It is held that the continued detention of the detenu - Satheesh @ Karimunda, S/o. Babu, is not justified. (c) The detenu Satheesh @ Karimunda, S/o. Babu, shall be released from custody forthwith by the prison authorities if his detention is not necessary in connection with any other case. ## **W.P.(Cri) No. 213 of 2010** -: 12 :- 18. The Registry shall forthwith communicate this direction to the prison authorities. 19. Hand over a copy of this judgment to the learned Senior Government Pleader also for immediate necessary action. **R. BASANT (Judge)** **M.C. HARI RANI (Judge)** **Nan/**