SUJITHA v. STATE OF KERALA

WPCR 197/07APPENDIX:EXT.P1: THE TRUE COPY OF THE ORDER OF DETENTION NO.S11-44793/07 DATED 15-6-07.EXT.P2: TRUE COPY OF THE GROUNDS OF DETENTION.EXT.P3: TRUE COPY OF THE CONFIRMATION ORDER NO.44136/SS.A4/07/HOME DATED 25-6-2007.EXT.P4: THRE TRUE COPY OF THE NOTICE OF THE KERAL PULAYAR MAHA SABHA, KAZHAKUTTAM AREA UNION.EXT.P5: TRUE COPY OF THE REPRESENTATION DATED 18-10-2006 PREFERRED BY THE PETITIONER BEFORE THE SUPERINTENDENT OF POLICE (RURAL), THIRUVANANTHAPURAM.EXT.P6: TRUE COPY OF THE ORDER DATED 14-11-2006 IN W.P(C) 28180/06.EXT.P7: TRUE COPY OF THE ORDER DATED 18-1-2007 IN W.P(C) 1063/07.//TRUE COPY// P.R.RAMAN & V.K.MOHANAN, JJ.============================W.P (Crl.)NO. 197 of 2007. ============================Dated Ist October, 2007JUDGMENTMohanan, J. One Suresh, son of Appu is detained under section 3 ofthe Anti-social Activities (Prevention) Ordinance, 2006(Kerala) and therefore his wife, who is the petitioner herein,approached this Court praying inter alia to call for the recordsleading to Exts. P1, P2 and P3 and to quash the same byissuing a writ of certiorari and to release her husband byissuing a writ of habeas corpus.2. In support of the above prayers, the petitionersubmits that the grounds stated in the order of detention arewith respect to the cases committed at very earlier periodand there is no proximity of the detention and the crimealleged to have been committed. According to the petitioner,while the Ist respondent issued Ext.P3 confirmation order, thisaspect was not considered. It is further submitted that theallegations levelled against the detenu would not constitutelegal grounds for detaining him as a 'rowdy' as defined WPCR 197/2007.2under subsection (t) of section 2 of the Ordinance. It is alsoaverred that the petitioner's husband had reformed himselfand had, in a convention under the auspicious of theKerala Pulayar Maha Sabha, Kazhakkuttam area union heldon 30-10-2005 as Kuttavimuktha BodhavalkaranaConvention, vowed to leave all criminal activities. Accordingto the petitioner, after the said convention petitioner'shusband had turned into a new life and was eking hislivelihood by doing coolie works. The petitioner submittedthat at that point of time, her husband's past was hauntinghim and he was suffering threat from notorious gang whichconstrained the petitioner to prefer a representation beforethe Superintendent of Police (Rural), Trivandrum for policeprotection for the life of the detenu as well as his familyand since no protection was granted, according to thepetitioner, the detenu has preferred WP(C) 28180/2006before this Court for police protection which resulted inExt.P6 order by which this Court has directed that theinvestigation can be continued and the police was directedto see that the detenu is not attacked by his enemies. WPCR 197/2007.3Thereafter alleging police harassment, WP(C)1063/2007 waspreferred before this Court and the same was disposed of bythis Court by order dated 18-1-2007 which is marked asExt.P7. Thus according to the petitioner, the above aspectswere not considered either by the 2nd respondent or by theIst respondent while issuing Exts.P1 and P3 ordersrespectively by 2nd and Ist respondents.3. Another contention raised by the petitioner is thatthe ordinance mentioned above is unconstitutional as itamounts to colourable exercise of the power of the Governor.In support of the above contention, several facts are statedand to substantiate the above contentions, the petitionerplaced reliance on the decision reported in D.C.Wadhva v.State of Bihar (AIR 1987 SC 579) ; P.Vajravelu Mudaliarv. Spl.Dy.Collector, Madras (AIR 1965 SCR 614 = AIR1965 SC 1017) and K.G. Gajapathi Narayan Deo v.State of Orissa (1954) 1 SCR 1) = (AIR 1953 SC 375).It is also stated that in view of the provisions contained inArticle 22(5) of the Constitution of India, the detainingauthority as well as the confirming authority ought to have WPCR 197/2007.4considered all the relevant aspects which are material for thesubjective satisfaction of the authorities concerned. Butaccording to the petitioner, such relevant and materialrecords and datas were not placed and the same were notscrutinised before passing the impugned orders. It is arguedthat the more stringent the law, the more should have beenthe subjective satisfaction since every order passed underthe law affects the personal liberty and life of the citizensguaranteed by Article 21 of the Constitution of India.According to the petitioner, the relevant material aspectswere deliberately suppressed from the consideration of thedetaining and confirming authorities and hence, the ordersunder challenge are liable to be set aside as the same areviolative of the constitutional provisions. It is alsosubmitted that on an examination of the history of thepetitioner's husband it would reveal that the detenu is not athreat to the society at the time when the Ordinance cameinto existence and when the impugned orders are issued.Therefore, Exts.P1, P2 and P3 are against the mandatecontained in Article 20(2) of the Constitution of India and WPCR 197/2007.5hence the same are liable to be quashed.4. Countenancing each and every contentions raised bythe petitioner, separate counter affidavits have been filed bythe Ist and 2nd respondents. The 2nd respondent in hiscounter affidavit stated that he has got credible informationfrom the Superintendent of Police (Rural) Trivandrum as perthe letter Ext.D1-16192/2007(T) dated 11-6-2007 againstthe husband of the petitioner namely, Suresh, wherein it isstated that the detenu was involved in 8 criminal cases outof which 6 are registered in the Kazhakuttom police station.The details of those criminal cases as disclosed from thecounter affidavits are as follows: Crime No.149/2000 for theoffences punishable under sections 452, 427, 379 and 506(ii)of IPC; crime No.274/2007 for the offences punishable undersections 394 of I.P.C. and section 27 of the Arms Act;Crime No.312/2002 for the offences punishable undersections 143, 147, 148, 149, 447, 427 and 506(ii) of IPC;Crime No.322/2003 for the offences punishable undersections 143, 147, 148, 149, 324, 326 & 120(b) of I.P.C;Crime No.329/2003 for the offences punishable under WPCR 197/2007.6sections 143, 147, 148, 149, 342, 302 of IPC and section 27of the Arms Act; Crime No.604/2006 for the offencespunishable under sections 394 of IPC. All those crimes areregistered in Kazhakuttom police station. CrimeNo.131/2004 is registered at the Kadinamkulam policestation for the offences punishable under sections 324 and 34of IPC; another crime No.378/2006 in the Peroorkada policestation for the offences punishable under section 143, 147,148, 149, 323, 324 and 363 and 308 of IPC. According tothe counter affidavit, those crimes are spanning the periodfrom 2000 to 2006. It is also stated that he is involved invarious crimes including offences under the Arms Act andExplosive Substances Act and the same are relating to theoffences covered by Chapter XVI, XVII, and XXII of IPC andsection 27 of the Arms Act. The report so received by the2nd respondent further disclosed that the detenu is currentlyinvolved in anti-social activities prejudicial to themaintenance of public peace and order and his involvementin antisocial activities are within the ambit of the provisionscontained in the Kerala Antisocial Activities (Prevention) WPCR 197/2007.7Ordinance 2007. The report further shows that if thehusband of the petitioner is allowed to move freely, thereare all probabilities and likelihood in indulging anti-socialactivities prejudicial to the maintenance of public peace andorder. According to the 2nd respondent, on examinationand evaluation of the report, he has satisfied that the saidSuresh is a known rowdy as defined in the above Ordinanceand if he is not detained, as a preventive measure, hewould likely to indulge in anti-social activities which woulddirectly or indirectly cause alarm, danger or feeling ofinsecurity or cause threat to public or result in wide spreaddanger to public tranquility in Trivandrum district. Thusaccording to the 2nd respondent, on his satisfaction of theabove grounds, he had issued Ext.P1 order. On the basis ofExt.P1 detention order and the grounds of detention dated15-6-2007, the detenu was arrested on 17-6-2007 anddetained him in the central prison , Trivandrum.5. In the counter affidavit, it is specifically stated thatcopy of the detention order and the grounds on which the WPCR 197/2007.8detention order was issued, were served on the detenu andwhile doing so, the detenu was informed in writing of hisright to make a representation before the Government andto the Advisory Board and according to the 2nd respondent,the same was acknowledged by the detenu on the copy ofthe grounds for detention itself. The 2nd respondent furtherstates that all the above aspects were reported to the Istrespondent and to the Director General of Police togetherwith the copy of the order and all supporting materials on19-6-2007 and finally, the detention order was confirmed bythe Ist respondent as per Ext.P3 order. 6. In paragraph 10 of the counter affidavit of the 2ndrespondent, it is specifically stated that out of the 8 crimes,2 crimes were registered against the detenu during the year2006 in the Kazhakuttom police station as well asPeroorkada police station and those facts are sufficient toshow the falsehood of the averment of the petitionercontained in para 4 of the writ petition regarding the“grounds of detention are with regard to cases committed atvery earlier stages”. Showing the factum of the registration WPCR 197/2007.9of two crimes during the year 2006, the 2nd respondentfurther states that the claim of the petitioner that herhusband had reformed himself during the end of 2005, isabsolutely incorrect. Thus according to the 2nd respondent,Ext.P1 detention order is absolutely perfect and legal. 7. In the counter affidavit filed by the Ist respondent,it is specifically stated that the order of detention passed bythe 2nd respondent was confirmed as per Ext.P3 order onsatisfaction after evaluation of the said materials and on anassessment that if the detenu is allowed to go freely, hisanti-social activities will cause danger, alarm and a feelingof insecurity to the public and it was absolutely necessary toprevent the same for the better safeguard of the publicpeace and order. In the said counter affidavit the Istrespondent has also stated that there was no willfulnegligence or delay on the part of the Government in re-promulgating the Ordinance as 21/2007, 30/2007 and44/2007. It has specifically stated in paragraph 7 of thecounter affidavit that a Bill replacing the Ordinance hasalready been introduced in the ongoing Session of the WPCR 197/2007.10Assembly on 14-9-2007 and the same has been referred tothe Subject Committee. Thus according to the Ist respondent,the contention of the petitioner that the re-promulgation of theOrdinance by the Governor amounts to colourable exercise ofpower, is without any basis. Reiterating the correctnessand legality of the Ordinance, the Ist respondent states thatthere is no violation of Article 22 of the Constitution of Indiarather the Ordinance was issued in strict compliance of thesaid provisions of the constitution of India. Thus the Istrespondent states that Ext.P1 detention order as well asExt.P3 confirmation order are absolutely correct and inaccordance with the provisions contained in the saidOrdinance and there is no violation of any of the provisionsof the Constitution of India.8. We have heard Mr.Sasthamangalam S.Ajithkumar,learned counsel appearing for the petitioner as well asMr. K.K.Ravindranath, the Laision Officer appearing for therespondents. 9. Going by the pleadings of the petitioner, it can beseen that her challenge against Ext.P1 and P3 orders are WPCR 197/2007.11firstly on the basis its constitutional validity. Secondly sheattacked Ext.P1 and P3 saying that there is no proximity ornexuss with the alleged crime and Ext.P1 detention orderas well as Ext.P3 confirmation order. Another contention isthat Ext.P1 and P3 orders are vitiated for the sole reasonthat the same are issued without application of mind andwithout consideration of relevant materials which are veryvital for arriving subjective satisfaction of the authoritiesconcerned. But during the course of argumentMr.Sasthamangalam S.Ajithkumar, learned counselappearing for the petitioner has submitted that he is notpressing the first point and confining his argument to otherpoints. 10. On going by Ext.P1 detention order, and also thecounter affidavit filed by the 2nd respondent it can be seenthat the detenu involved in 8 criminal cases spanning over2000 to 2006. On a perusal of Ext.P1 order, one canascertain the nature and gravity of the offences in which thedetenu involved. Pointing out the fact that almost all thecrimes registered against the petitioner's husband are WPCR 197/2007.12pertaining to much earlier to the date of Ext.P1 order, thepetitioner content that there is no proximity of the detentionwith the crime alleged. On a reading of section 3 of theOrdinance, it can be seen that the Government or anauthorised officer if satisfied on the information receivedwith regard to the activities of any known Goonda or knownRowdy, with a view to prevent such person from indulging inany anti-social activity within the State of Kerala in anymanner, such person can be ordered to be detained as apreventive measure. So what are to be satisfied by theauthority making detention order is regarding the activitiesof any known goonda or rowdy and further, unless suchactivities are prevented, such person is likely to indulge inany anti-social activities. Going by the definition of theterm “known Rowdy”, his acts done for the previous yearscalculated from the date of the order, are relevant anddeterminate in forming an opinion as to whether he shouldbe kept under preventive detention. So the mere fact in therecent past he is not found involved in a crime by itself isno ground to vitiate the order of detention, especially in the WPCR 197/2007.13light of the specific provisions contained in the Act definingthe class of persons liable to be detained. In this case, thedetenu had involved in several cases, which are very seriousin nature. The criminal history of the detenu shows that hehad involved in cases like house trespass, theft, robbery,conspiracy, kidnapping, attempt to commit culpablehomicide, murder cases etc. A person having such criminalantecedents may at any time indulge in further criminalactivities and nobody can visualise or anticipate the pointof time at which his criminal mind would arise and involvein criminal activities. So the available materials ensure thecorrectness and rationality of the satisfaction of theauthorities concerned to come into a conclusion that suchperson will further involve in the commission of the offenceunless he is prevented and such involvement would affectadversely the public tranquility, peace and security.Therefore, the contention of the petitioner that there is noproximity for the preventive detention order with the crimeswhich taken place earlier to the date of the order fails. Soalso it cannot be said that by Ext.P1 order, the detenu is WPCR 197/2007.14being punished and not preventing him from indulging infurther criminal activities.11. Another contention advanced by the petitioner isthat while issuing Exts.P1 and P3 orders, the authoritiesconcerned did not consider relevant materials. The learnedcounsel appearing for the petitioner emphatically arguedthat the petitioner's husband, the detenu had undergonereformation and he had turned into a new life and he waseking his livelihood by doing coolie works. In order tosubstantiate the above contention, the counsel placed muchreliance on Exts.P4, P5, P6 and P7 records. Ext.P4 is anotice of the Kerala Pulayar Maha Sabha, Kazhakuttom areaunion, regarding the convention held on 30-10-2005 viz.,“Kuttavimuktha Bodhavalkarana” Convention. Ext.P5 is apetition preferred before the Superintendent of Police(Rural) Trivandrum, Ext.P6 is the judgment of this Court inW.P.C.28180/2006 and Ext.P7 is another judgment of thisCourt in WPC 1063/2007. Based upon these documents,learned counsel submitted that the detenu had undergonemental reformation and he had changed his life style and WPCR 197/2007.15pulling out his family on the basis of the income derivedfrom coolie work and therefore, Exts.P1 and P3 orders areissued without considering the relevant materials andtherefore, the same are not legally sustainable. 12. Mr.K.K. Ravindranath, the Laision officer appearingfor the respondents has pointed out that even after the dateon which the said convention was held, the detenu hadinvolved in several cases and by inviting our attention tocrime Nos.378/2006 of Peroorkada police station for theoffences under sections 143, 147, 148, 149, 323, 324, 363and 308 of IPC and of crime No.604/2006 of Kazhakuttompolice station for the offence under section 394 of IPC, it issubmitted that the above contention of the petitioner isabsolutely false and the factual position proved otherwise.That being the position, it cannot be said that Exts. P1 and P3orders are issued without considering the relevant materialsand therefore, the above contention of the petitioner is nothelpful as the above crimes are pertained to the year 2006.We have perused Ext.P6 and P7 judgments of this Courtwhich are not helpful for the petitioner to improve her case WPCR 197/2007.16and it appears that those records are not relevant whileissuing Exts.P1 and P3 orders and therefore, even if the sameare not considered, it will not prejudice the petitioner in anyway.13. In the light of the above facts and circumstances ofthe case, we find no reason to interfere with Exts.P1 and P3orders and the petitioner is not entitled to get any relief asthere is no merit in this writ petition and the same is liable tobe dismissed. Accordingly, the WP(Crl.) is dismissed. P.R.RAMAN, JUDGE.V.K.MOHANAN, JUDGE.kvm/- WPCR 197/2007.17P.R.RAMAN &V.K.MOHANAN, JJ.WP(CRL) No197/2007 JudgmentDated: 1-10-2007.