ABDUL KAREEM P.A.AGED 65 YEARS v. STATE OF KERALA

WPCR 153/07:3:Jail. The grounds forming the basis of the order is also attached separatelywhich is produced as Ext.P1(2). The Government, by Ext. R3(c) orderdated 19.6.2007, after examining the detention order and connecteddocuments received from the District Magistrate, Ernakulam, havingconvinced that Shaji is a known rowdy and if he is allowed to continue hisactivities, it will cause danger, alarm and a feeling of insecurity among thepublic. Accordingly, his detention was found justified and considering thegravity of his criminal activities, it was found that his detention for onlyten days as ordered by the District Magistrate is insufficient to serve thepurpose of detention envisaged in the Ordinance and hence exercising thepower under Section 13(1) of the Ordinance, Government modified theperiod of detention as six months from the date of detention and confirmedthe detention order as modified under Section 3(3) of the Ordinance. 3. According to the petitioner, the detention order Ext.P1 isunsustainable in law and the illegal custody and confinement of his son isan infringement of the fundamental rights guaranteed to him under Articles14, 19(1)(d), 21 and 22 (5) of the Constitution of India. It is alleged that thedetention order is void ab initio since the documents which form its basisis not served on the detenue, along with the grounds of detention resultingin depriving him the opportunity to make effective representation before WPCR 153/07:4:proper authority as provided by the Ordinance. Further, the language of theorder is in English which is unknown to the detenue. It is his case that thethird respondent ought to have issued the order of detention in the RegionalLanguage of the detenue ie. in Malayalam. According to the petitioner, hisson is not involved in any anti social activities as defined under Section 2(a) of the Ordinance nor is he a known gunda or a known rowdy within themeaning of Section 2(o) or 2(p) of the Ordinance. According to thepetitioner, Ext.P1 order was passed without proper application of mind, thegrounds of detention were not given with sufficient elaboration regardingthe crime numbers and the third respondent has proceeded in a mechanicalway and so the order is vitiated because of non application of mind. It isfurther alleged that the detenue was not appraised of his right to representto the Government and before the Advisory Board against his arrest anddetention and Ext.P1 order was not confirmed by the Government asprovided under Section 3(3) of the Ordinance. It is his further case that thedetenue was on bail in all the cases mentioned in Ext.P1 order and therefore,the detaining authority has to necessarily rely upon them before passingdetention order. Since the factum of the bail order in all the cases weresuppressed by the police authorities from the third respondent, who is theauthorised officer, Ext.p1 order is bad in law and is liable to be set aside. WPCR 153/07:5:4. Referring to Ext.P2 bail order dated 22.9.2006in B.A. 5389/2006(Crime No. 435/06 of Chengamanad Police Station) it is alleged that nonconsideration of the said order by the detaining authority has vitiated theorder Ext.P1. Learned counsel appearing for the petitioner also sought toplace reliance on the observations contained in the order of bail Ext.P2 andcontended that the submission of the counsel appearing for the detenue inthe said case was that he has changed and fully reformed and this Court hadtherefore, inclined to give him an opportunity so that he may not becontinuously put into the group of persons with whom he had acquaintanceor connected activities.] in future. 5. In the counter affidavit filed by the third respondent, besidesdenying the allegations contained in the writ petition, it is also stated thatcredible information was received from the Station House Officer,Palarivattom Police Station through the Commissioner of Police, KochiCity, against Sri. Shaji, vide FIR No. 372/2007 which containedinformation about his involvement in ten criminal cases registered inErnakulam Town North Police Station. In para 3 of the counter affidavit, itis averred as follows:"The said report contained information about theinvolvement of Sri. Shaji @ Thammanam Shaji in 10 criminalcases registered in Ernakulam Town North Police Station .(Cr. 177/92 u/s. 143, 147, 148, 427, 323, 324, 307 Cr.PC r/w. WPCR 153/07:6:149 IPC, Cr.120/92, u/s. 341, 427, 324 Cr.P.C. r/w 34 IPC,Cr. 219/93 u/s. 143, 147, 341, 323, 448 Cr.PC r/w 149 IPC,Cr. 155/94 u/s. 143, 147, 148, 324, 323, 307 Cr.PC r/w 149IPC, CR 198/95 u/s. 107 CrPC, CR 364/00 under S. 452,323, 506 (1) Cr.P.C. and 34 IPC, CR. 178/01 u/s. 110(e)(g)Cr.P.C., CR 9/01 u/s. 27 of Arms Act, CR 190/02 u/s. 395IPC, CR 432/04, u/s. 109, 450 Cr.P.C. r/w 395 IPC, 5Criminal cases registered at Kalamassery Police Station (CR294/93, u/s. 143, 147, 447, 506 (ii), 341, 323, 427 Cr.PC. r/w.149 IPC, CR 105/94 u/s. 107 Cr.PC., CR 114/94 u/s. 27 of theArms Act, CR 102/95 u/s. 341, 323, 324 Cr.PC, 34 IPC, C.R.160/99 u/s. 143, 147, 148, 341, 324, 307 Cr.P.C. r/w. 149IPC) 2 cases registered at Palarivattom Police Station (CR.13/93 u/s. 341, 323, 324 Cr.P.C. r/w. 34 IPC, CR 62/04 u/s.451, 341, 324, 427 Cr.PC, r/w 506 (i) IPC, 1 case registeredat Ernakulam Town South Police Station (CR 125/96 u/s. 27of Arms Act) and 1 case registered at Chengamanad PoliceStation (Cr. 435/06 u/s. 419, 468, 471, 12 (1 b & d) ofPassport Act, spanning the period from 1992 to 2006. Theoffence relating to the said cases include attempt to murder,unlawful assembly, rioting, causing hurt by dangerousweapons, criminal intimidation, offences under Arms Act etc.Security proceedings were initiated four times against Sri.Shaji @ Thammanam Shaji, u/ss. 107 & 110 of the Code ofCriminal Procedure."6. It is further stated that the Commissioner of Police, KochiCity, as per his report dated 10.6.2007, reported that Sri. Shaji is currentlyinvolved in activities prejudicial to the maintenance of public order, that heis a known rowdy as defined in the Ordinance, that he is presentlyfunctioning as a goonda leader with many anti socials in the gang under himand he is very active and many antisocial activities occurring in the area isunder his guidance and protection though he is physically not present on WPCR 153/07:7:the ground and that he works through intimidation and coercion to settlevarious financial transactions and has a hold in the land and the buildingmafia in Kochi City. According to the third respondent, after examiningand evaluating the said reports including the preliminary report of the CircleInspector of Police, Ernakulam Town, forwarded along with the report dated10.6.2007 of the Commissioner of Police, Ernakulam and the connectedrecords of the cases, he was satisfied that Sri. Shaji is a known rowdy asspecified in the Ordinance and that if he remains at large, he would indulgein anti-social activities with regard to Kochi City which would directly orindirectly cause harm, danger or alarm or a feeling of insecurity or causethreat to public life among the general public or residents of Kochi city or ingrave or widespread danger to life in that area and hence he issued Ext.P1order of detention against the petitioner's son in exercise of the powersconferred on him under Section 3(1) and 3(2) of the Ordinance. It is furtherstated that the Commissioner of Police, Kochi was directed to take Shajiinto custody and to transfer him to central Jail, Viyyur and to comply withall the procedures prescribed for effecting arrests such as serving copies ofdetention order and grounds to the detenue. Annexuure R3(a) is the memoissued for executing the detention order. The fact of his arrest was alsoreported to the Principal Secretary to Government, Home Department and WPCR 153/07:8:Director General of Police, Kerala, along with the copy of the order andsupporting materials on 12.6.2007. The Government, as per their order No.G.O. 42198/SSA4/2007 Home dated 19.6.2007 confirmed the order ofdetention modifying the period of detention to six months from the date ofdetention. Ext.R3(c) is the confirmation order passed by the Government,in this regard. In the counter affidavit fled by the third respondent, it isstated that there are very definite confidential informations that Shaji isvery active and is presently working as a goonda leader and that he hasbeen booked under the preventive sections of the Code of Criminalprocedure, four times in the past which itself is indicative of the fact that hehas shown no tendency to correct himself and to live as a law abidingperson. The confidential information from the locality suggests that thegang working under the detenue is likely to commit serious offences whichwould endanger the peace and tranquility of the area and would be a threatto the public at large, necessitating issuance of an order of preventivedetention against him.7. The 4th respondent Commissioner of Police, in a separatestatement filed in the case, stated that the petitioner's son is one of the mostnotorious antisocials of Kochi City with proved involvement in numerouscriminal cases. It was after careful evaluation and study of his past records WPCR 153/07:9:and present activity as envisaged under the Ordinance that the authorizedofficer has passed the detention order, Ext.P1 produced in te case. In para4 of the statement, it is stated that the detenue was served with thedetention order with the grounds of detention and acknowledgment to thiseffect was also taken on the document itself. As against the averment ofthe petitioner that his son, the detenue is not knowing English language, the4th respondent has stated that the officer, who served the detention orderand the grounds of detention, had read over the same to the detenue andexplained the contents of the same in Malayalam to him and the detenuehad signed the endorsement to that effect on the back of the detention orderas is evident from Annexure A1, which is the back page of grounds ofdetention. It is seen from the original, which contains a certification bythe Sub Inspector of Police, who arrested the detenue to the effect that theOfficer had read over the detention order to the detenue and served him acopy of the same along with the ground for detention and hasacknowledged that he has understood the same. The detenue hasacknowledged receipt of the copy of the detention order and grounds ofdetention and put his signature which is in English. There is a furthercertification that the Officer had informed the detenue in writing of his rightto represent to the Government and before the Advisory board against the WPCR 153/07:10:arrest and a separate acknowledgment to the said certification was takenfrom the detenue. Thus, Annexure A1 contains four parts - certification ofarrest and certification of order of detention along with the grounds thereon,acknowledgment of the same by the detenue, certification to the effect thatthe Officer had informed the detenue about his right to represent the matterto the Government and to the Advisory Board and acknowledgment theretosigned by the detenue. Annexure A2 is produced along with the statementof the 4th respondent to show that the detenue had studied up to IXthstandard. It is stated that in one of the case in which the detenue is anaccused is a case in which he had made plans to visit foreign countrythrough a forged passport which would prove that he is well versed inEnglish.8. The 5th respondent, the Superintendent of Central Prison, Viyyur,in his statement has submitted that Shaji was admitted in the Central Prisonon 12.6.2007 based on the order issued by the District Collector on11.6.2007 and the Jail Admission Authorization issued by the DistrictCollector is Annexure A. The subsequent confirmation order passed by theGovernment is produced as Annexure B. 9. In the reply affidavit filed by the petitioner, he has denied theaverments made by the respondents in their counter affidavit. It is his case WPCR 153/07:11:that the detaining authority is bound on the act of the Station House Officer.According to the petitioner, in order to attract Section 2(p) of the ordinancethere shall be at least three convictions by a competent court of law andthree other criminal cases on complaints initiated by persons other thanpolice officers which is not satisfied in this case. He has also denied theallegation that his son is presently functioning as a goonda leader withmany anti socials in the gang under him and according to him, only one caseis registered against his son after 2002. According to the petitioner, thedetaining authority has acted in a mala fide manner under the influence ofthe police officers without any bona fides and in violation of theconstitutional and statutory rights of the detenue and without properapplication of mind.10. We have heard the arguments of Sri. K.A. Jaleel, the learnedcounsel appearing on behalf of the petitioner and the Special GovernmentPleader Sri. K.K. Raveendranath appearing on behalf of the State. It is thecontention of the learned counsel appearing for the petitioner that Ext.P1order is per se illegal and ab initio void for the reason that all the relevantdocuments are not issued to the detenue. According to him, the detenue wasnot informed of his right to represent before the Government and theAdvisory Board and the detenue will not satisfy the definition of the term WPCR 153/07:12:"known rowdy" as defined in the Ordinance. It is his further case that theorder of detention passed by the detaining authority cannot be based oninformation furnished by the Station House Officer as per the provisions ofthe Act. It is also his case that Ext.P2 bail order issued y this Court in arecent case was not placed before the detaining authority and as such, thedetaining authority had no occasion to form an opinion based on the saidorder and to say whether preventive detention is required to be made .According to him, the detenue has informed and this Court, in the bailorder, has given an opportunity to him, which fact, if placed on recordbefore the detaining authority, it would not have perhapses ordered hisdetention. Per contra, it is contended by the learned Government Pleaderthat petitioner's son satisfies the term "known rowdy" as defined in theOrdinance and that all procedural formalities have been complied with asrequired by law and there is no infirmity in whatsoever the nature in thisregard. The file will disclose that it is on the information from theCommissioner of Police, who is the sponsoring authority and afterconsidering the report and various other factors made mention of in thereport and after evaluating such matters by the detaining authorityindependently and after applying his mind, that he had exercised the powerunder Section 3(1) and 3(2) of the Ordinance in ordering detention of the WPCR 153/07:13:petitioner's son which was confirmed by the Government. He also placedreliance on the certification made by the officer who arrested thepetitioner's son pursuant to Ext.P1 order and the acknowledgment given bythe detenue to contend that the detenue was served with the order ofdetention and the grounds thereon. Further, the petitioner had the copies ofthe FIRs in the various criminal cases in which the petitioner's son is anaccused, some of which are pending trial, served on him as contemplatedunder the Code of Criminal Procedure. The detenue, at no point of time,did ask for any further details, if he had no such documents in hispossession or even represented to the Government in this regard. He wasalso informed of his right to make a represention to the Government as wellas to the Advisory Board which fact is also acknowledged by him inwriting. Hence there is no basis for the allegation that there is anyprocedural irregularity as contended by the counsel appearing for thepetitioner.11. We shall now deal with the contention as raised by the parties.It is the contention of the petitioner that the documents which form thebasis of the order of detention is not served on the detenue along with thegrounds of detention, as a result of which, he is deprived of the opportunityto make an effective representation before the appropriate authority. It is WPCR 153/07:14:also contended that the language of the order is in English, which is notknown to him. On the other hand, the respondent would submit that theorder of detention, along with its grounds were served on the detenue andhis acknowledgment was also taken. It is also stated that the order ofdetention and the grounds were read over to him and explained the contentsof the same in Malayalam. Annexure A1 produced along with the statementof the 4th respondent is the order of detention along with its grounds.Annexure A1(3) is the true copy of the certification made by the SubInspector of Police, who served the same on the detenue to the effect thatthe same was served on him. The same has been acknowledged by thedetenue. Further, there is yet another certification that he had been told thathe has got a right to represent before the Government or before theAdvisory Board, to which also a separate acknowledgment was receivedbeneath the portion of the certification. The signature put in by the detenueis in English. Ext.A2 would show that the detenue has studied up toStandard IX. In the counter affidavit filed on behalf of the third respondent,it is specifically averred that as reported y the police officer who served thedetention order on the detenue, at the time of serving the detention order,the detenue was informed that he can make a representation before theGovernment and also to the Advisory Board as provided for under Section 7 WPCR 153/07:15:(1) of the Ordinance Act, which was acknowledged by him. We havealready referred to the acknowledgment Annexure A1(3) in this regard. It isfurther averred that at the time of service of the order, the contents of thesame and the ground of detention served along with it were read over andexplained to the detenue in Malayalam which was acknowledged by thedetenue on its backside. But the certification portion which is alreadyreferred to by us, however, does not indicate that the detention order and thegrounds were explained in Malayalam. But the certification do show thatthe same was read over to the detenue and that he understood the same andhe has acknowledged the same beneath the portion of the certification somade. Therefore, it can not be said that the detenue has not understoodthe contents of the order and the grounds of detention. Further, it wouldshow that he is not an illiterate person and his hand-writtenacknowledgment in the certification itself is in English. Hence there is nobasis for the contention that the detenue did not know about the contents ofthe detention order and the grounds of detention. He had also been told thathe has an opportunity to make a representation before the Government aswell as the Advisory Board. 12. It has been held by the apex court in Wasi Uddin Ahmed v.District Magistrate, Ahgarh (AIR 1981 SC 2166) that the constitutional WPCR 153/07:16:imperatives indicated in Article 22(5) are two fold (i) the the detainingauthority must, as soon as may be, that is, as soon as practicable, after thedetention, communicate to the detenue the grounds on which the order ofdetention has been made and (2) the detaining authority must afford thedetenu the earliest opportunity of making a representation against the orderof detention. The apex court had occasion to consider a similar questionwhere the documents were served in Hindi which is not a languageconversent with by the detenue. While considering the said contention, theapex court held that no grievance was made in the representation filed bythe detenue before the Advisory Board and further he admitted before theBoard that he knew Hindi and actually read out the document in Hindiwhile making his submissions before the Advisory Board. Thus, on thefactual matrix present in the case, we don't find that there is any proceduralviolations as alleged infringing his right of making effective representation.13. As per the grounds for detention, Ground No.1 refers to the factthat the detenue was involved in around 19 criminal cases, includingattempt to murder, hurt, Arms Act etc. The time numbers are also clearlyshown. He has no case that he has not involved in the crimes referred totherein. The details of these crimes were very much available with thedetenue as according to the respondents, in para 12 of their counter WPCR 153/07:17:affidavit, it is specifically averred that he was involved in 19 criminal casesof various police stations and he figured as an accused and was committedon investigation in four cases. Crime 432/2004 of Ernakulam North PoliceStation is a dacoity case. Crime No. 62/2004 of Palarivattom PoliceStation and Crime No.190/2002 of Ernakulam North Police Station arecases of grievous hurts filed against the detenue . Crime No. 435/2006 ofChengamanadu Police Station is a case of cheating and passport forgery.All these cases were initiated on complaints by persons other than policeofficers. Thus, when the detenue has already committed to investigation, itcannot be said that he had no knowledge about his involvement in thesecrimes. Petitioner has no case that the FIR and other documents relating tothose crimes were not served on him by the Magistrate Court, where theyare pending. As a matter of fact, there is no denial of the fact that thedetenue has involved in these crimes. 14. The contention that he was not given the copies of the FirstInformation Report in the criminal case in which he was convicted and threeother criminal case pending against him was not furnished to him as aground to vitiate the order, is misconceived. Under Section 173 (5) of theCode of Criminal Procedure, the detenue had already been supplied withall the documents or relevant extracts thereof on which the prosecution WPCR 153/07:18:relied in the criminal case in which he was convicted as well as on whichthe prosecution proposes to rely in the three criminal case pending againsthim. there was therefore, no need to supply the copies of the firstinformation reports referred to in the grounds of detention over again andno grievance can be made that the detenue was deprived of the right ofmaking a representation at the earliest opportunity due to non supply ofthose documents. (See AIR 1981 SC 2166).15. The next ground urged is that the detenue is not a 'known rowdy'within the meaning of Section 2(p) of the Ordinance. For easy refernce, weshall reproduce Section 2(p) which defines 'known rowdy' as follows:"Known Rowdy" means any person, who hadbeen found, by reason of acts done within theprevious seven years as calculated from the date ofthe order imposing any restriction or detention underthis Ordinance:--(i)guilty, by a competent court at leastonce for an offence of the nature under item (i) ofclause (t) of Section 2 or any offence notified assuch under the said clause;(ii)guilty, by a competent court at leasttwice for any offence of the nature under item (ii) ofclause (t) of Section 2 or any offence notified assuch under the said clause;(iii)committed, on investigation or enquiryby a competent police officer or other competentauthority, on complaints initiated by persons otherthan police officers, in three separate instances notforming part of the same transaction, any offencementioned in clause (t) of Section 2. WPCR 153/07:19:Section 2(t) defines the term "Rowdy" which is also quotedhereunder:"Rowdy" means and includes a person whoeither by himself or as a member of a gang commits orattempts to commit, or abets the commission of anyoffences under Chapters XVI, XVII & XXII of theIndian Penal Code, 1860 (Central Act 45 of 1860), orany offences under the provision of the Arms Act,1959 (Central Act 54 of 1959), or the ExplosiveSubstances Act, 1908 (Central Act 6 of 1908)(i) punishable with more than five years ofimprisonment of any type, or;(ii)with less than five years of imprisonmentof any type, excluding those punishable with less thanone year of imprisonment, orsuch offences under any other law for the timebeing in force, coming under item (i) or (ii) as may benotified by the Government, from time to time."16. Learned counsel for the petitioner would contend that in theabsence of the word 'or' in between clause (i), (ii) and (iii) of Section 2(p),unless all the acts mentioned under clauses (i), (ii) and (iii) are satisfied, aperson cannot be called as a 'known rowdy' within the meaning of the saidSection. We are unable to accept this contention for the reason that as perSection 2(t), a person either by himself or as a member of a gang commitsor attempts to commit or abets the commission of any offences underChapters XVI, XVII and XXII of the Indian Penal Code or any offencesunder the provisions of the Arms Act or Explosive Substances Act,punishable with more than five years of imprisonment of any type or with WPCR 153/07:20:less than five years of imprisonment of any type, excluding thosepunishable with less than one year of imprisonment or such offences underany other law for the time being in force, coming under item (i) or (ii), asmay be notified by the Government, will fall under the definition of theterm 'rowdy'. When as per Section 2(p), if a person is guilty of an offenceof the nature made mention in Section 2(p)(i) or guilty twice for an offenceunder item 2(t) or commit on investigation or enquiry by a competent court,based on complaints other than by a police officer, in three separateincidents, he will fall within the definition of the term 'known rowdy'.True, the word 'or' is absent as between Clauses (i) and (ii) or (ii) and (iii) ofSection 2(p). But equally, the word 'and' is also absent as between the subclauses and we cannot imply the word "and" in between to understand themeaning as conveyed by the definition. We can not supply any word to theprovision and convey a different meaning not sanctioned by the legislativeintend. Further, if the argument of the learned counsel for the petitioner isaccepted, even if a person is guilty three or four times of a serious offencefalling under item (i) of Section 2(t) and if he is not held guilty of anoffence under clause (ii) or (iii), he cannot be understood as a 'knownrowdy' as defined under Section 2(p). In other words, even though hewould have been guilty of an offence of a serious nature for more than four WPCR 153/07:21:times, merely for the reason that he is not held guilty of an offence of alesser gravity at least for once, he cannot be called a 'known rowdy'. Thisappears to be an unreasonable interpretation. On a combined reading of theterm 'rowdy' as defined under Section 2(t) and also the term 'known rowdy'as defined under Section 2(p) the possible and reasonable interpretationwould be to read the various acts mentioned under clauses (i), (ii) and (iii)of Section 2(p) and if he has committed any one of the act, he will satisfythe term 'known rowdy'. We hold that each such act enumerated underclauses (i), (ii) and (iii) of Section 2(p) is distinct and separate and if aperson commits any one of the act referred to therein, he will be a 'knownrowdy' within the meaning of Section 2(p).17. The next contention advanced by the learned counsel appearingfor the petitioner is that the order Ext.P1 was not confirmed by theGovernment, as provided under Section 3(3) of the Ordinance. The order ofdetention Ext.P1 is dated 11.6.2007. This was valid for a period of tendays. The confirmation order passed by the Government is Ext.R3(c) dated19.6.2007, which is produced along with the counter affidavit filed onbehalf of the third respondent. It is before the expiry of ten days periodwhich is the initial period of detention. Further, by the very same order,Government directed that the period of detention of ten days as ordered by WPCR 153/07:22:the detaining authority be substituted with the period of six months inexercise of its powers under Section 13(1) of the ordinance. As per sub-section (3) of Section 3 of the Ordinance, when any order is made under thesaid section by the authorised officer under sub-section (2), he shallforthwith report the fact to the Government and the Director General ofPolice, Kerala, together with a copy of the order and supporting materialswhich, in his opinion, have a bearing on the matter and no such order shallremain in force for more than ten days, excluding gazetted holidays, fromthe date of detention of such Known Goonda or Known Rowdy, unless, inthe meantime, it has been confirmed, by the Government. Thus, theconfirmation order passed by the Government, as already referred to above,is well within the period of ten days of the original detention order andhence the contention that the same was not confirmed as contemplatedunder Section 3(3) of the ordinance has only to be repelled.18. Ground No.4 of the grounds for detention refers to someconfidential information from the area which suggests that the detenue isvery active and many anti social activities occurring in the area is under hisguidance and protection, even though he is physically not present on theground. According to the petitioner, this confidential information is notfurnished to the detenue. In the counter affidavit filed on behalf of the WPCR 153/07:23:third respondent, it is specifically averred that the Commissioner of Police,vide his report dated 10.6.2007 has reported that the detenue is currentlyinvolved in activities prejudicial to the maintenance of public order and thathe is a known rowdy as defined in the Kerala Anti-social ActivitiesPrevention Ordinance, 2007. It is also reported that he is presentlyworking as a goonda leader with many anti socials in the gang under him,who do the work for him and that he is very active and many anti socialactivities occurring in the area is under his guidance and protection, eventhough he is physically not present on the ground. The report further saysthat he works through intimidation and coercion to settle various financialtransactions and has a hold in the land and the building mafia in Kochi city.This report was also evaluated by the detaining authority including thepreliminary report of the Circle Inspector of Police, Ernakulam. It is afterevaluation of these reports and connected records that the detainingauthority recorded satisfaction that the detenue is a 'known rowdy' asdefined under the ordinance and that if he remains at large, he wouldindulge in anti-social activities with regard to Kochi City which woulddirectly or indirectly cause harm, danger or or alarm or a feeling ofinsecurity or cause threat to public life among the general public orresidents of Kochi city. WPCR 153/07:24:19. We have perused the file made available to us by theGovernment Pleader, which contains the final report of the Commissionerof Police dated 10.6.2007, which in turn, refers to a fact that confidentialinformation from the area suggest that the detenue is a very active and manyanti social activities occurring in the area is under his guidance andprotection, even though he is not physically in ground. A history sheetagainst him was already opened in Palarivattom Police Station and he issupposed to be the top rowdy of the city. 20. The Commissioner of Police, in his written statement, has statedthat besides the four cases to which reference is made, the detenue is alsoan accused in a case under Arms Act and in cases under the PreventiveSections of the Code of Criminal Procedure, as is shown in the grounds ofdetention. Confidential information was received from the area that thedetenue is very active and many anti social activities occurring in the areais under his guidance and protection, even though he is physically notpresent on the ground. 21. As per Section 7(1) of the Ordinance, when a person is arrestedin pursuance of a detention order, the officer arresting him shall read out thedetention order to him and give him a copy of such order along with thegrounds on the basis of which the order has been made and he shall also be WPCR 153/07:25:informed in writing, under acknowledgment, of his right to represent to theGovernment and before the Advisory Board against the arrest anddetention. In this case, the authorities, while serving the order of detentionand the grounds thereon had served a copy of the same. The certificate ofthe officer on the reverse side of the order would also show that the samewas read over to the detenue and the same was acknowledged by him andfurther certified that he has got a right to represent the matter before theGovernment, to which also, there is an acknowledgment made by thedetenue separately, which is in strict compliance of the provisions ofSection 7(1) of the Ordinance. As per sub-section (2) of Section 7, theSuperintendent of the Jail where such person is detained shall afford himevery opportunity to consult lawyers and every reasonable assistance inmaking a representation against the detention order to the Government or tothe Advisory Board. As per the proviso thereto, it is provided thereunderthat nothing in the said section shall require any authority to disclose to thedetained person any fact, the disclosure of which will reveal the identity ofany confidential source or the disclosure of which will be against theinterests of internal security or national security. Therefore, the authoritiesare not bound to inform the confidential source of information. Therefore,the non furnishing of the confidential information made mention of under WPCR 153/07:26:Ground No.4 will not vitiate the order of detention. In this connection, wemay refer to the decision of the apex court in Bhawarlal v.State of TamilNadu (AIR 1979 SC 541) wherein it was held that there is no need to givecopies of intelligence report. It was then contended that the authorisedofficer, while passing the order of detention, had only information from theStation House Officer of the palarivattam Police Station. According to thecounsel appearing for the petitioner, as per sub-section (i) of Section 3 ofthe Ordinance, information has to be received by the authorised officer froma police officer not below the rank of a Superintendent of Police and theStation House Officer is not in the rank of a Superintendent of Police andtherefore, the order is vitiated. 22. In the counter affidavit filed by the authorised officer, it isspecifically averred that the Commissioner of Police, Kochi City, has, videhis report dated 10.6.2007, reported that the detenue is currently involvedin activities prejudicial to the maintenance of public order and that he is aknown Rowdy as defined in Kerala Anti-social Activities PreventionOrdinance, 2007. The reports of the Circle Inspector of Police,Ernakulam, is a preliminary report in the matter which was forwardedalong with the final report of the Commissioner of Police dated 10.6.2007and it was after evaluating all these reports and information passed on to WPCR 153/07:27:him that he came to the decision that the detenue should be kept underpreventive detention. 23. In para 5 of the the counter affidavit filed by the thirdrespondent, it is stated that credible information is received from the thirdrespondent station House Officer through the Commissioner of Police,Kochi City regarding the detenue. We have perused the records and findthat the information as conveyed vide FIR No. 372/2007 is under Section 3(1) of the Ordinance, prepared by the Sub Inspector of Police, the StationHouse Officer, which was forwarded by the Commissioner of Police, bysubmitting a report for initiation of formal action under the Ordinance.There is a final report also under date 10.6.2007 from the Commissioner ofPolice, Kochi City which contains detailed information as is referred to inthe order of detention. Thus, the information is actually conveyed by theCommissioner of Police who is in the rank of Superintendent of Police andas such it is not correct to say that the authorised officer has acted based onthe information conveyed by the Station House officer only. Thiscontention also is rejected.24. It was lastly contended that while passing the order of detentionby the authorised officer and subsequently by the Government, confirmingthe order of detention, they did not consider the bail order issued in favour WPCR 153/07:28:of the petitioner as evidenced by Ext.P2 produced in the writ petition.According to the learned counsel for the petitioner, the non consideration ofthe bail order will vitiate the order of detention passed by the authoritiessince there was no proper application of mind. 25. In Abdul Sathar Ibrahim Manik v. Union of India (1992 SCC(Crl.) 1) the apex court had occasion to deal with a similar situation. Thatwas a case where the detenue was already in jail. The bail application madeby the detenue and the order of rejection were not placed before thedetaining authority. It was held that it would not amount to suppression ofrelevant materials. It was also held that the non supply of the ground ofdetention, copy of the bail application moved by the detenue and therejection thereof will not vitiate the detention order, when those documentswere only referred to and not relied on by the detaining authority whilepassing the order and the detenue was fully aware of the contents of thosedocuments. The apex court held that if the detenue had moved for bailthen the application and the order thereon refusing bail even if not placedbefore the detaining authority, does not amount to suppression of relevantmaterial. However, in a case where the detenue is released on bail and is atliberty at the time of passing the order of detention, then the detainingauthority has to necessarily rely upon them as that would be a vital ground WPCR 153/07:29:for ordering detention. In such a case the bail application and the ordergranting bail should necessarily be placed before the authority and thecopies should also be supplied to the detenu. It was also held that when thedetaining authority has merely referred to the bail application whilenarrating the facts; but has not relied upon them, the failure to refer to sucha bail application and order refusing bail will not cause any prejudice to thedetenue in making any effective representation.26. Here is also a case where no reference was made to the bail orderand indisputably they were not placed before the detaining authority. Thegrounds do not disclose that the detainig authority had relied on any of thesedocuments. The bail order itself was not placed on record and the detainigauthority has not placed any reliance thereto. It cannot be said that suchaction has in any way prejudicially affected the detenue's right to make anyrepresentation. 27. However, in Asharaff v. State of Kerala (2001(1) KLJ 684) aDivision Bench of this Court specifically considered the question as towhether the non consideration of bail application and the order grantingbail by a Magistrate would vitiate the detention order issued under Section3(1) (i) of the Conservation of Foreign Exchange and Prevention ofSmuggling Activities Act, 1974. This Court also referred to the decision of WPCR 153/07:30:the apex court in M. Ahammedkutty v. Union of India (1990(2) SCC 1)wherein it was held as follows:"Considering the facts the bail applicationand the bail order were vital materials forconsideration. If those were not considered thesatisfaction of the detaining authority itself wouldhave been impaired, and if those had beenconsidered, they would be documents relied on bythe detaining authority though not specificallymentioned in the annexure to the order of detentionand those ought to have formed part of thedocuments supplied to the detenu with the groundsof detention and without them the groundsthemselves could not be said to have beencomplete. It must therefore be, held that ifamounted to denial of the detenu's right to make aneffective representation and that it resulted inviolation of Article 22(5) rendering the continueddetention of the detenue illegal and entitling thedetenue to be set at liberty in this case. "Both the decision of the apex court were later considered by this Court inPathooty v. State of Kerala (2001(1) KLT Sh.N. page 30 ). This courtnoticed the distinction between bail being granted before the order ofdetention and bail being granted subsequent to the order of detention. Thiscourt held that when detenu was already on bail before detention order waspassed, bail order and bail application were vital documents which are to econsidered by the detaining authority. Purpose of the detention underCOFEPOSA is not punitive but preventive; but where the liberty of a WPCR 153/07:31:citizen is infringed it is the bounden duty of the court to take all safeguards.When once liberty is to be curtailed on the subjective satisfaction of thedetaining authority with area of interference by the court then the court mustsee that the detaining authority does not stretch legitimately in the exerciseof its jurisdiction. Non consideration of vital documents would vitiate theorder of detention. When detenu is on bail granted by a competent court,application moved by the detenue and the bail granted by the court are allvital documents. Detaining authority is arresting and detaining a personwho is granted bail by a competent court. Therefore, it is imperative thatthose documents should be considered while passing order of detention. Itwas after referring to the above decision that this Court, in Asharaff 's case (2001(1) KLJ 684) held that the detenue is on bail granted by acompetent court and the application for bail and bail granted also should betaken into consideration while passing the order of detention. InVaradharaj v. State of Tamil Nadu, ((2002) 6 SCC 735) it was held bythe apex court that while making the detention order in respect of a persondetained under a detention Act, it is not always mandatory for the detainingauthority to take into consideration the bail application filed by the detenuand any order passed thereon by the criminal court. Such a requirementwould depend upon the facts of each case. In that case, the detenu was in WPCR 153/07:32:police custody while passing the order, since he did not furnish security asordered in the bail order. But the court held that the bail application wasnot opposed as a relevant fact, the non consideration of which vitiated theorder of detention.28. Admittedly, the bail order Ext.P2 was not placed before thedetaining authority, nor before the Board. Neither the detaining authoritynor the Government had occasion to consider Ext.P2 order issued in thiscase. But the learned Special Government Pleader appearing on behalf ofthe State would submit that unlike a case arising under COFEPOSA , thedetention made under the Ordinance as per which only the defined classcoming under the provisions of the Act could be detained. Since in thepresent case, the detenue has satisfied the definition of the term 'knownrowdy' as defined under Section 2(p) of the Act, the fact that he wasreleased on bail in respect of any offence pending trial in no way will affectthe order of detention passed under the Ordinance. Though prima facie wefind some force in this argument, on a closer scrutiny, we find that there isno merit in this contention. As per Article 22(5) of the Constitution ofIndia, when a person is detained in pursuance of an order made under anylaw, providing for preventive detention, the authority making the ordershall, as soon as may be, communicate to such person the grounds on WPCR 153/07:33:which the order has been made and shall afford him the earliest opportunityof making a representation against the order.29. Article 22 consists of two parts - Clause (1) applies to personsarrested and detained otherwise than under preventive law and clause (2)relates to persons arrested and detained under the preventive law. It is truethat under Section 3 of the COFEPOSA Act, the authorised officer asempowered may order to detain a person, if satisfied, with a view toprevent him from acting in any manner prejudicial to the security of theState or maintenance of preventive order as contemplated under Section 3(2)(d) of the Act. Actually, such information is formed based on theincident in which the detenu is alleged to be involved.30. On the other hand, in the present case, there is a furthersafeguard under the Ordinance that only the defined class of person underthe Ordinance can be kept under preventive detention. Section 3 of theordinance provides that the authorised officer, if satisfied on informationreceived from a police officer not below the rank of a Superintendent ofPolice with regard to the activities of any known goonda or known rowdythat with a view to preventing such persons from indulging in any antisocialactivity within the State of Kerala in any manner, it is necessary so to domake an order directing that such person be detained. In other words, it WPCR 153/07:34:contains two part. He must be a 'known goonda' or a 'known rowdy' toattract Section 3. As per the latter part of Section 3, the detention must bewith a view to prevent such person from indulging in any antisocialactivities or in any manner, it is necessary to make an order directing thatsuch a person should be detained. Therefore, even if he is a 'known goonda'or a 'known rowdy' the authorised officer has to be satisfied about the latterpart of the section namely, that with a view to prevent such person fromindulging in any antisocial activities, it is necessary to detain him. In thecontext of considering the second part that the consideration of the bailorder passed by the competent court of law it becomes important. 31. As noticed above, the non consideration of the bail order passedby the competent court as has been held by this Court and by the apex courtwould show non consideration of a fact material while forming an opinionto keep him under preventive detention. In this context, the learnedcounsel for the petitioner would further submit that the condition of the bailwas strictly complied with by the detenue. In para 2 of the order this courthas noticed the contention of the petitioner that though the accused hadcommitted different offences, he had reformed himself and has now marriedand leaving the criminal activities. It was his further submission thatbecause of his mental reformation he is practicing himself of the pious WPCR 153/07:35:thoughts and actions. But this court agreed with the argument of theprosecution that the Circle Inspector of Police Emigration Department haddetected the petitioner who was trying to flee from the State since therewere four cases registered against him by the Ernakulam North PoliceStation and two cases registered by the Palarivattom Police Station and inspite of the fact that photographs were affixed in the strategic points of theState, petitioner dared to flee from the hands of justice and to prevent theaction to be taken against him. This was the contention raised to opposethe bail application. But this Court, taking into consideration of thecontentions by both sides, granted an opportunity to the petitioner so thathe may not be continuously put into the group of persons , with whom hehad acquaintance or connected activities and granted bail with certainconditions. According to the petitioner, those conditions are strictlycomplied with by the detenue. Therefore, according to him, if the detainingauthority had before him, the order of bail granted to the detenue, perhapshe might not have ordered to keep the detenue under preventive detentionand at any rate, the non consideration of such an order is therefore, vitiatedthe order of detention. 32. We find that there is strong force in this submission. TheGovernment has to necessarily reconsider the matter afresh and take a WPCR 153/07:36:decision whether further detention of the detenue is necessary or not,particularly in the light of the bail order, Ext.P2. We have already foundthat the authority has considered the various relevant factors, exceptExt.P2, the order of bail while passing the impugned order, the object ofwhich is to prevent the detenue from indulging in any antisocial activity.We have also approved the order of detention in every respect, except fornon consideration of the bail order.33. In such circumstances, it cannot be visualised at this juncture,whether in spite of consideration of the order of bail, the authority may bepleased to decide whether the order of detention has to continue or not. It issolely within the realm of the authority to take a decision on this aspect.The order of detention is issued to prevent any probable harm to the society.Though the omission to consider Ext.P2 is vital, we find that on the factsand circumstances of this case, it may not be proper, in the interest ofjustice, to leave the detenue free, until a fresh decision is taken by theGovernment. We are therefore, constrained not to disturb the detention ofthe detenue for the time being, in the interest of justice and the society atlarge, until a fresh order is passed by the Government in the matter, at theearliest. We issue the following order.i. If the petitioner makes a representation to the Government within WPCR 153/07:37:ten days from the date of receipt of a copy of this judgment, theGovernment shall bestow consideration with all the relevant facts includingExt.P2 order of bail granted by this Court and pass appropriate orders as towhether the detenue should be continued to be kept under detention.ii. The Government shall pass appropriate orders as expeditiously aspossible and at any rate, not later than two weeks from the date of receipt ofthe representation and communicate the order to the detenue.iii. In case no order is passed as aforesaid within time, the detenueshall be released, immediately on expiry of the time limit.The writ petition is disposed of as above. P.R. RAMAN,(JUDGE)K. HEMA, (JUDGE)knc/-