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Judgment
R. Basant, J.—The petitioner, brother of a detenu by name Ratheesh @ Induchoodan, who is detained as per an order of detention passed by the second respondent u/s 3 of the Kerala Anti-Social Activities (Prevention) Act (hereinafter referred to as ''the KAAPA'') has come to this Court for issue of a writ of habeas corpus to direct the production of the said detenu Ratheesh and to set him at liberty.
The third respondent had submitted Ext.P1 report to the second respondent recommending action against the said Ratheesh (hereinafter called ''the detenu) u/s 3 of the KAAPA. The second respondent on consideration of the said report had passed Ext.P2 order of detention dated 5.8.2009 u/s 3(2) of the KAAPA. The detenu was taken into custody and was arrested on 14.8.2009 in execution of Ext.P2 order. He continues in custody from that date. It is conceded that order of approval u/s 3(3) of the KAAPA and order of confirmation u/s 10(4) of the KAAPA have already been passed.
The detenu has been sponsored for detention and ordered to be detained by classifying him as a known rowdy. The sponsoring authority has stated that there were as many as eight pending cases against the detenu. The incidents in those eight cases took place on 11.4.2002, 21.2.2006, 14.11.2006, 7.1.2007, 23.9.2007, 20.6.2008, 30.5.2005 and 10.1.2009 respectively. All these cases relate to offences which fall within the sweep of Section 2(t) of the KAAPA, it is conceded.
In addition to these eight cases which were said to be pending, it was also alleged by the sponsoring authority that there were three other cases in which the detenu has already been tried and acquitted.
The detaining authority excluded case No. 1 in which the offence was allegedly committed on 11.4.2002 as the same fell beyond the period of seven years referred to in Section 2(p) of the KAAPA. The detaining authority placed reliance on the existence of seven pending cases to include the detenu within the sweep of the definition of known rowdy in Section 2(p) of the KAAPA. It is accordingly that Ext.P2 order has been passed. The detenu continues in custody from 14.8.2009.
Before us, the learned Counsel for the petitioner Sri. K.S. Madhusoodhanan and the learned Government Pleader Sri P. Ravindra Babu have advanced their arguments. The learned Counsel for the petitioner assails the impugned order on the following grounds:
(1) There has been want of application of mind by the detaining authority before passing Ext.P2 order inasmuch as the detaining authority failed to take note of the fact that the detenu has already been acquitted in case No. 7 vide Ext.P5 judgment.
(2) There has been fatal infraction of the provisions of Section 7(2) of the KAAPA inasmuch as the documents relating to Crime No. 447/2009, Crime No. 621/2005 and Crime No. 14/2009 referred to in Ext.P1 report were not furnished to the detenu.
(3) Legible and readable copies of Ext.P3(a) and P3(b) FIRs relating to cases 2 and 3 referred to above have not been furnished to the detenu and this has resulted in the inability of the detenu to submit a representation to the Government and the Advisory Board as facilitated by the provisions of Article 22(5) of the Constitution of India and Section 7(2) of the KAAPA.
(4) There has been snapping of the nexus between the last of the alleged culpable acts on 10-1-2009 and the date of Ext.P2 order, i.e. 5.8.2009.
(5) Confidential information which have been referred to and relied on in Exts. P1 and P2 have not been furnished to the detenu and this amounts to fatal infraction of the provisions of Section 7(2) of the KAAPA.
(6) The non-confidential portion of the report of the Advisory Board relied on by the Government to pass Ext.P4 order u/s 10(4) of the KAAPA has not been furnished to the detenu and this is a fatal infraction warranting invalidation of the order of detention.
We have considered all the relevant contentions. We are proceeding to consider them in seriatum below.
Ground No. 1: Out of the eight cases referred above, case No. 1 relates to an incident which took place on 11.4.2002. That was rightly excluded by the detaining authority as the impugned order of detention was passed on 5.8.2009 - after the elapse of a period of seven years from the date of commission of the offence. However, case No. 7, i.e., Crime No. 329/05, the incident in which took place on 30.5.2005 was taken into consideration by the detaining authority. Long prior to the date of Exhibit P2 order, i.e., 5.8.2009, the said case had ended in acquittal as per Exhibit P5 judgment dated 19.2.2009. The learned Counsel for the petitioner argues that the sponsoring authority had not brought this fact to the notice of the detaining authority and the detaining authority was led to assume erroneously that the said case was pending. It is hence argued that this reveals absence of due application of mind by the detaining authority.
The contentions sound impressive at the first blush. But, we are unable to accept the same as a ground for invalidation of Exhibit P2 order and the consequent detention. Section 7(4) of the KAAPA is in this context relevant. We extract the same below.
Grounds of order of detention to be disclosed:
xxxx xxxxxx xxxxxxx xxxxxxxx xxxxxx xxxxxxx xxxx (4) The order of detention shall not be deemed to be invalid merely because one or more of the facts or circumstances cited among the grounds are vague, non-existent, irrelevant or invalid for any reason whatsoever and such order shall be deemed to have been made by the Government or the Authorised Officer after having been satisfied about the need for detention with reference to the remaining facts and circumstances, provided that the minimum conditions for being classified as a known goonda or known rowdy are satisfied.
Even if case No. 7, i.e., Crime No. 329/05 were eschewed altogether from consideration, the detenu would still be a ''known rowdy'' as only three cases are required to bring him within the sweep of the expression ''known rowdy'' in Section 2(p). On the question of the latter subjective satisfaction u/s 3 of the KAAPA also, the mere fact that the 7th case has ended in acquittal prior to the date of the impugned order would not make any difference in the validity of the subjective satisfaction even if case No. 7 were excluded altogether from consideration as permitted/ enabled by Section 7(4) of the KAAPA. The challenge on the first ground therefore fails.
Ground No. 2: Crime No. 447/2009, it is evident from Exhibit P1 report of the sponsoring authority, is only the crime registered u/s 3 of the KAAPA. The learned Government Pleader argues that this is not to be reckoned as a material against the detenu. There is no obligation to register a crime/FIR u/s 3 of the KAAPA. The police have been following the unnecessary procedure of registering the FIR only to facilitate proper initiation of action and proper indexing and collection of material before the final report is prepared and submitted by the sponsoring authority (Exhibit P1 in this case) to the detaining authority. It is not a piece of material relied on by the sponsoring authority or the detaining authority. Similarly, it is submitted that the FIRs in Crime Nos. 621/2005 and 14/2009 of Kodakara Police Station have been referred to in Exhibit P1 report of the sponsoring authority. They refer only to Crimes registered for initiation of action under Sections 110 Cr.P.C. and 107 Cr.P.C. The learned Government Pleader argues that it is significant that three FIRs have not been relied upon as documents by the detaining authority. In these circumstances, non-furnishing of the FIRs in the said three crimes cannot be held to be infraction of the mandate of Section 7(2) of the KAAPA. At any rate non-furnishing of the copies of those three documents which are not relied on by the detaining authority cannot in any way be said to have affected the right of the detenu to make representations before the Government and the Advisory Board which is the rationale supporting the insistence on furnishing copies to the detenu. We find force in this contention. These FIRs having not been relied on by the detaining authority and considering the nature of those documents, the omission to furnish copies of those documents cannot be said to amount fatal infraction of the provisions of Section 7(2) of the KAAPA warranting invalidation of the order of detention and the consequent detention.
Ground No. 3: It is contended that legible and readable copies of Exhibits P3(a) and P3(b) have not been furnished to the detenu and this in turn substantially resulted serious prejudice to the detenu and his right to make a representation before the Government or the Advisory Board. Exhibits P3(a) and P3(b) have been produced. Admittedly they have been furnished. Admittedly no objections were raised at any point of time prior to the filing of this Writ Petition that the copies furnished were not legible or readable. It is true that no representation was made by the detenu before the Government or the Advisory Board. The crucial question is whether such inability/failure/refusal of the detenu to make a representation to the Government and the Advisory Board was the result of the alleged inadequacy in Exhibits P3(a) and P3(b). We must immediately note that Exhibits P3(a) and P3(b) have been duly acknowledged. The acknowledgment was made without any demur that the copies furnished were not readable. Copies produced along with the Writ Petition show that they are not very legible or readable, though it may not be correct to say that they are not readable at all. Be that as it may, without embarking on the controversy as to whether they are completely illegible or unreadable, the fact remains that no objections were ever raised against the illegibility and unreadability of Exhibits P3 (a) and P3(b) when the acknowledgment was given or at any time thereafter, till this Writ Petition was filed by the petitioner, the brother of the detenu. Undoubtedly, the detaining authority/the serving authority has the obligation to furnish legible and readable copies of the document. This obligation remains whether or not the detenu raises an objection. On that aspect there can be no dispute. The requirement of giving copies is only to enable the detenu to make a representation. In the instant case, Exhibits P3(a) and P3(b) are relied upon in support of the assertion that cases 2 and 3 are pending against the detenu. It is relevant to note that final reports in those crimes have already been furnished to the detenu and no objections are raised that those final reports are not legible and readable. In this context the observations in Union of India and others Vs. Mohammed Ahmed Ibrahim and others, (Three Judge Bench) is relevant. The question is not merely whether the document was readable or legible. The question is whether the alleged illegibility and unreadability of the documents have really affected the right of the detenu to make a representation to the Government and the Advisory Board. We note that Exhibits P3(a) and P3(b) which we note are not totally illegible or unreadable, are only FIRs in two cases, finals reports in which have admittedly been furnished to the detenu without any inadequacy. Thus, we are unable to agree that the alleged illegibility and unreadability of Exhibits P3(a) and P3(b) have in any way affected the right of the detenu to make a representation before the Government or the Advisory Board. It is true that no representation has been made. But it would be idle and puerile for this Court now to assume that such representations were not made because of the alleged illegibility and unreadability of Exhibits P3(a) and P3(b). The challenge on Ground No. 3 therefore fails.
Ground No. 4: It is contended that the live link between the alleged contumacious and culpable acts and the impugned order of detention is lost. There is snapping of nexus between the two. We have already noted that the seven cases relied on by the detaining authority - even after excluding case No. 7 which has ended in acquittal under Exhibit P5, have taken place during the period from 21.2.2006 to 10.1.2009. The last of the said crimes was allegedly committed on 10.1.2009. The final report in that case was filed on 30.4.2009. It is thereafter that the 3rd respondent submitted Exhibit P1 report dated 31.7.2009 u/s 3(1) of the KAAPA sponsoring the detenu for detention. It has repeatedly been held that the question whether live link has been snapped or not is not to be reckoned as a mere exercise of counting the number of days between the last act of alleged criminality and the date of the order of detention. The detenu, going by the six cases which can indisputably be taken into consideration has been indulging in contumacious and culpable acts during the period from 21.2.2006 to 10.1.2009. A pattern of action is revealed. Crimes were allegedly committed in regular intervals. On 10.1.2009, the last act was committed. But definitely the police is entitled to get time to verify whether that allegation is true or not. It is only on 30.4.2009 that the last crime committed on 10.1.2009 resulted in the final report/charge sheet. The gap of time between such final report and the impugned order is only from 30.4.2009 to 5.8.2009. In these circumstances, the plea laboriously urged that there is snapping of the live link cannot be accepted. Challenge on Ground No. 4 also does in these circumstances fail.
Ground No. 5: The learned Counsel for the petitioner builds up an argument that reliance has been placed both by the sponsoring authority and the detaining authority on confidential reports received which have not been disclosed. Reliance placed on such undisclosed and unrevealed confidential report is not justified, contends the learned Counsel for the petitioner vehemently. We have looked into this contention very anxiously. In Exhibit P1 report by the sponsoring authority there is no specific reference to any confidential report. The authority states that the detenu still continues to indulge in contumacious and culpable acts. We reckon it only as expression of an apprehension by the sponsoring authority and not as a statement of fact placing reliance on any particular confidential report. The detaining authority when it refers to such possible apprehensions in Exhibit P2 was only relying on Exhibit P1 report of the sponsoring authority and not on any other confidential information. The learned Counsel for the petitioner places crucial reliance on the observations of the unreported decision of the Full Bench in P.K. Bose v. The Secretary to Government and Ors., i.e., judgment dated 30th September, 2009 in W.P. (Crl.) No. 260/2009 to contend that no reliance can be placed on such secret and confidential information. In the instant case, there is no such secret and confidential report relied on by the sponsoring authority or the detaining authority. The sponsoring authority has expressed the apprehension that the detenu continues to indulge in such activities. But that is only the opinion of the sponsoring authority and the same is not based on any confidential or secret report. In these circumstances, it cannot be contended that the sponsoring authority had furnished secret and confidential information to the detaining authority and the detaining authority had placed reliance on such secret and confidential reports without revealing the same to the detenu. The challenge on this ground must also in these circumstances fail.
Ground No. 6: It is sixthly contended that the report of the Advisory Board has not been furnished to the detenu. The learned Counsel for the petitioner fairly accepts that the report of the Advisory Board is confidential and is not liable to be revealed as such in the light of Section 10(3) of the KAAPA. But the counsel contends that certain portions of the report of the Advisory Board are admittedly not confidential and hence at least such portions must have been furnished. Non-furnishing of such portions amounts to infraction of the right to life, freedom and liberty of the individual. His constitutional right to know the material on which the order of confirmation is passed is infringed thereby, contends the learned Counsel for the petitioner.
We are unable to accept this contention. Section 10 of the KAAPA mandates that the Advisory Board must prepare its report devoting a separate paragraph for the opinion as to whether or not there is sufficient cause for the detention of the person concerned. Except that all the other portions of the report are confidential u/s 10(3) of the KAAPA. The order u/s 10(4) of the KAAPA is produced and marked as Exhibit P4. In that it is clearly communicated that " the Advisory Board in its report read as 4th paper above has held that there is sufficient cause to detain Shri Ratheesh @ Induchoodan, S/o