Ramseena Anas vs State Of Kerala And Ors

K. Vinod Chandran, J

The writ petition is filed challenging the preventive detention of the husband of the petitioner. The Advisory Board confirmed the detention order

produced as Ext.P1 and so did the Government. The challenge is on procedural irregularities, on which learned Counsel Sri.C. Rajendran argued for

the petitioner and learned Government Pleader Sri.K.A.Anas argued in defence of the State.

According to the petitioner, though the detention order was passed on 03.09.2020, it was not forwarded forthwith to the Government, which is the

mandate under Section 3(3) of the Kerala Anti-Social Activities (Prevention) Act, 2007 [for brevity, 'the KAAPA']. It is then argued that the order

itself was passed with 6½ months' delay, as occasioned from the last prejudicial act alleged. This vitiates the order especially when the Detaining

Authority had the power only to impose preventive detention for a period of six months. Reliance is placed on Ponnappan N.N. v. State of Kerala &

Others [2018 (5) KHC 210]. Not only was the live link snapped, but the detenu also was in judicial custody when the order was passed. The detenu

was arrested from the prison where he was in judicial custody. The approval by the Government, after arrest made on 09.09.2020 was issued only on

28.09.2020, beyond the statutory period prescribed of 12 days.

Further it is contended that the acts alleged are not sufficient to categorise the detenu as a “known rowdyâ€. Though eleven crimes were

projected by the Sponsoring Authority and considered by the Detaining Authority, only two could have been raised as valid grounds. The nine other

crimes spoken of in the order were used for a similar detention order earlier, which was set aside by Ext.P20 judgment of this Court. In that

circumstance, no avail could be made of the provisions under Section 13(2) of the KAAPA, as has been held in Ibrahim Bachu Bafan & Another v.

State of Gujarat & Others [(1985) 2 SCC 24].

It is vehemently argued that the detenu, by two procedural irregularities, was denied of an effective opportunity to make a representation against the

detention order. The first of these is the supply of illegible and unreadable copies, which are specifically pointed out from the records. Then, the

representation filed before the Government was rejected on the same day when the case was sent to the Advisory Board, vitiating the detention itself,

as held in Golam Biswas v. Union of India & Another [2015 (16) SCC 177]. It is then argued that bail orders in various crimes were not perused by

the Detaining Authority nor supplied to the detenu. Hence the detention order is vitiated for reason of the Detaining Authority having not applied its

mind as to whether the conditions imposed by the Court were sufficient to deter the detenu from commission of any other offences. The detenu was

also prevented from raising such issues before the Advisory Board and the Government, since the bail orders and conditions imposed therein were not

known to him. Reliance was placed on Rekha v. State of Tamil Nadu [(2011) 5 SCC 244] to contend that when the detenu was under judicial custody,

the Detaining Authority ought to have also considered the possibility of bail being granted, in which event alone there was a warrant for preventive

detention; if at all it could be passed. On the above contentions, it is argued that the detention order be set aside and detenu released from prison.

Learned Government Pleader vehemently denied the procedural irregularities alleged. It is pointed out from the records that the detention order was

forwarded to the Government on the very next day, ie. 04.09.2020. As to the delay in passing the detention order, it is submitted that though the

prejudicial act leading to registration of crime was earlier, the detenu was arrayed among the accused only after investigation and arrested much later.

After arrest, the detenu was in judicial custody and after collecting the details, the Sponsoring Authority had made a recommendation. On the

recommendation made, the Detaining Authority raised a query regarding the bail applications filed in the crimes for which the detenu was placed in

judicial custody. The delay, if at all caused, was only due to these circumstances.

It is pointed out that the mere fact that an earlier detention order was set aside by the High Court would not fetter the Detaining Authority or the

Sponsoring Authority from relying on the same grounds, if there are any additional prejudicial acts, subsequently or later revealed. When the earlier

detention order is set aside as held in Vishnuja v. State of Kerala [2018 1 KHC 933], the detention order becomes invalid. It does not necessarily

invalidate the grounds alleged in the detention order, unless there is an interference caused to the grounds itself. It is pointed out that the earlier

detention order was set aside as is seen from Ext.P20, because the representation filed by the detenu before the Government was rejected, when the

matter was pending before the Advisory Board. Here, the pending representation was disposed of and the matter referred to the Advisory Board,

since otherwise there would be a contention raised that the Government delayed consideration of the representation filed before it. It is also pointed

out that the appellant had first made a representation to the Government and then to the Advisory Board. The Government had, after rejection of the

representation filed before it, forwarded the same also to the Advisory Board. The Advisory Board had considered both representations, that filed

before it and the Government, while affirming the detention order.

Insofar as the illegible copies of documents, as pointed out by the learned Counsel for the respondent, it is pointed out that Section 7(2) of KAAPA

only requires supply of copies of relevant documents 'as far as practicable'. It is also pointed out from sub-section (4) that if at all the copies supplied

with reference to an allegation raised is not legible, then only that ground could be interfered with. If the order is sustainable on the other grounds, the

detention order has to be upheld. As far as the approval, it is pointed out that the stipulation of 12 days excludes public holidays even as per the

statute. The public holidays due to the pandemic situation included all Saturdays and the approval was passed on the 11th day. With respect to the

contention of the bail orders not being produced or perused, it is again argued on the strength of sub-section (4) of Section 7 that the detention order

could be sustained even if the said crimes are not taken into account. Moreover, it is pointed out that the bail orders were obtained by the detenu and

hence he cannot feign ignorance of the conditions imposed; which he was obliged to obey. The detention order, according to the learned Government

Pleader, does not suffer from any illegality, irregularity or defect. It requires to be upheld and the writ petition rejected.

The grounds regarding forthwith reporting to the Government and the time in which approval was granted after the detention is made, can be

disposed of without much ado. The learned Government Pleader has produced the files before us, which indicates that the detention order dated

03.09.2020 was dispatched on 04.09.2020 to both the Director General of Police as also the Addl.Chief Secretary to Government, Home Department.

As for the approval, arrest was made on 09.09.2020 and the approval by the Government was on 28.09.2020. In between, there were eight public

holidays; the 10th, 12th, 13th, 19th to 21st, 26th and 27th. Hence including the date on which the arrest was made, the approval was granted on the

12th day.

The next ground is with respect to 6½ months' delay caused in passing the detention order. In Ponnappan [supra] where the delay was caused of

5½ months, explanation, as seen from the detention order, was that it is normal office procedure. It was emphasised that when an order of

preventive detention is passed, without any conviction recorded and merely on the basis of reported crimes, it cannot be treated as normal office work,

since it interferes with and restricts the freedom of an individual who has not yet been found guilty of charges raised against him by a competent

Court. In the present detention order, the circumstances are otherwise. After the earlier order was set aside, on 17.12.2019, there was an FIR

registered as Crime No.155 of 2020 in the Aluva East Police Station; which is the last prejudicial act. However the detenu was not arrayed as an

accused at the time of registration of FIR. Only on investigation, the detenu was arrayed as an accused and arrested on 10.05.2020. On arrest, he was

remanded to judicial custody. Yet again it was divulged that the 5th accused arrayed in Crime No.1073/2015, whose address was not revealed at the

time of registration of the crime; was the detenu, upon which a formal arrest was recorded, on 23.05.2020, of the detenu who was then in judicial

custody. It was while the detenu was thus continuing in judicial custody that the District Police Chief (Rural) proposed preventive detention by

communication dated 10.07.2020 [as available in the files]. Since the detenu was in custody there was no urgency and the time taken is justified in

collecting the entire details with respect to the detenu.

On consideration of the recommendation of the District Police Chief, as is evident from Ext.P1, the Detaining Authority requested for details

regarding the proceedings initiated by the detenu for bail. The Detaining Authority had specifically required the details to be furnished with respect to

Crime Nos.155 of 2020 and 1073 of 2015. The District Police Chief had supplied details by communication dated 18.08.2020. Though the bail

applications submitted were rejected by Court, detenu was recommended to be kept under preventive detention since there was every possibility of he

being released on bail. The detenue, on earlier occasions, when released on bail continued undeterred with his criminal activities. It was pursuant to

this that the Detaining Authority passed the order dated 03.09.2020. Hence there is no snapping of the live link from the last prejudicial act and within

one and a half month of his last arrest, there was a recommendation made for preventive detention by the Sponsoring Authority, on which a query was

made by the Detaining Authority and immediately on getting the response, the detention order was passed. From these facts it is crystal clear that

there is no delay occasioned in passing the detention order.

The next ground is with respect to there being no sufficient grounds available for preventive detention. Especially the 9 out of 11 cases alleged

being those raised for detaining the detenu earlier; which order stood set aside by the judgment of this Court produced as Ext.P20. None of the cases

against the detenu had reached the trial stage. We emphasize that the grounds for the present detention order were only three and not eleven crimes.

The detention was by reason of three separate instances having occurred in the past seven years, where the detenu was found on investigation by a

competent police officer to have committed offences under Section 2(t). Ibrahim Bach Bafan [supra] was a case in which detention was made by an

order, which was revoked, while the challenge against it was pending before the Gujarat High Court. However, on the very same grounds on which

the order was revoked, yet another order of detention was passed, which was also challenged in a writ petition. The High Court allowed the writ

petition finding the order to be violative of Article 22(5) of the Constitution of India and directed the detenu to be set at liberty. A few days later yet

another detention order was passed, which order was challenged before the Hon'ble Supreme Court. The State defended the order on the ground that

when a revocation is made under Section 11, there was no bar in making a fresh order against the same person. The Hon'ble Supreme Court held that

when the High Court exercises its jurisdiction under Article 226 of the Constitution it does not make an order of revocation but nullifies it. It was held

that on the same grounds there could not be a fresh order passed.

As (Section 11) in the 'Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974'; in the KAAPA Act, Section 13

provides for revocation. Under sub-section (2) power is conferred on the Government to pass a fresh order, if the circumstances in Clauses (i) to (iii)

of Section 13(2) arise. As held in Ibrahim Bachu Bafan, Section 13 is not applicable to the setting aside of a detention order by the High Court under

Article 226. It does not regulate, fetter or guide the High Court in exercising jurisdiction under Article 226 and the State or its officers cannot resort to

the provisions of Section 13 to pass a fresh order on the same grounds. We have to observe that the High court in Ibrahim Bachu Bafan quashed the

order by reason of violation of Article 22 (5) of the Constitution. For the procedural defect of either non-communication of the grounds on which the

order has been made or for not according the earliest opportunity to make a representation. Such a defect cannot be cured by issuing a further order

and making the arrest in compliance of Article 22(5). This equally applies to the defect pointed out in Ext. P20 judgment of this Court, which set aside

the earlier order.

On a reading of the two detention orders, the earlier one as available in the Judge's papers of WP(Crl.) No.385 of 2019 [which we called for] we

do not find the present order to be vitiated on that ground. Admittedly, nine cases were projected in the earlier detention order and if the present

detention order was on the very same grounds, Ibrahim Bachu Bafan squarely applies. At the earlier instance also the defect was insofar as there

being no effective consideration of the representation; which defect cannot be cured by a second order. In the present case, after the detenu was

released pursuant to Ext.P20 dated 17.12.2019 he had involved himself in another crime on 14.02.2020, pursuant to which, Crime No.155 of 2020 was

registered. Originally the detenu was not an accused there. His involvement was revealed only on investigation and he was arrested on 10.05.2020.

As we have already noticed though the last prejudicial act was on 14.02.2020, the involvement of the detenu came to the knowledge of the Police only

much later and he was arrested on 10.05.2020.

In this context, we specifically refer to the grounds taken by the Sponsoring Authority for the purpose of preventive detention, for a second time.

The first ground as seen from Ext.P1 order, under the heading 'Grounds on which the District Police Chief requires action against the accused', is

Crime No.1073 of 2015 registered on 26.07.2015, within the seven year period as provided under KAAPA, but not part of the grounds in the earlier

order. In fact, though the FIR was registered earlier, the 5th accused was not apprehended for reason of his address not having been divulged. It was

later revealed that the detenu was the 5th accused in the said case and his arrest was made while in judicial custody pursuant to arrest in Crime

No.155 of 2020, which crime was committed after Ext.P20 judgment of this Court. The second ground was Crime No.259 of 2018, which was one of

the grounds in the earlier order. There, the allegation was that a friend of the accused and resident of the same locality; was enticed to go with the

accused to Karnataka, where he was murdered, as preplanned from within the local limits. In addition, the third ground was Crime No.155 of 2020,

which was committed after he was released from preventive detention. Hence it cannot be said that the instant order of detention was on the very

same grounds.

The order of detention was specifically for reason of the commission of an offence after the earlier detention order was set aside. As also the

detection of the involvement in an offence of the year 2015, after Ext.P20 judgment of this Court. These two instances were coupled with one of the

crimes earlier committed and charged, which was also one of the grounds in the earlier order of detention. It cannot at all be said that the further

detention was on the same grounds. As was pointed out, one out of the three crimes was earlier alleged as a ground in the earlier order. In this

context, we cannot but observe that the grounds on which detention is made, ie. the prejudicial act of commission of an offence, as revealed in an

investigation or an enquiry, does not get erased or effaced on the High Court setting aside an order of preventive detention. In fact, here it is the

further commission of an offence and the detection of an offence earlier committed, coupled with one of the grounds raised in the earlier order; which

brought forth the present recommendation and detention. We do not find Ibraham Bachu Bafan has any application. There are sufficient grounds to

find the detention to be sustainable.

The next ground urged is the representation being disposed of on the same day on which the case was referred to the Advisory Board. Golam

Biswas [supra] was a case in which the Government rejected the representation filed by the detenu when the matter was pending before the Advisory

Board. The learned judges referred to Frances Coralie Mullin vs. WC Khambra [1980 (2) SCC 275], which relied on the Constitution Bench decision

in Jayanarayan Sukul v. State of West Bengal [1970 (1) SCC 219], which culled out four broad principles:

“We agree:(1) the Detaining Authority must provide the detenu a very early opportunity to make a representation, (2) the Detaining Authority must

consider the representation as soon as possible, and this, preferably, must be before the representation is forwarded to the Advisory Board, (3) the

representation must be forwarded to the Advisory Board before the Board makes its report, and (4) the consideration by the Detaining Authority of

the representation must be entirely independent of the hearing by the Board or its report, expedition being essential at every stageâ€​ (sic).

Golam Biswas held that the time-imperative cannot be absolute and obsessive and if a representation is received by an appropriate authority and

there is no time to dispose of the same, having regard to the time frame fixed by the act for reference of the matter to the Advisory Board, the

representation must also be forwarded to the Advisory Board along with records of the detenue. It was noticed that the requirement was insisted upon

especially since, on the Advisory Board holding the order to be invalid, the Government has no option but to release the detenu, whereas, on the

Advisory Board upholding the order of detention, it would still be open to the Government to release the detenu. The requirement was held to be:

“... The fact that the opinion of the Advisory Board against continuance of the order of detention is final vis-à -vis the appropriate Government, in

our opinion, is the motivating imperative for requiring the appropriate Government to forward the pending representation to the Advisory Board so as

to enable it to traverse the entire panorama of grounds taken against the detention order for an effective, timely and meaningful consideration of the

case of the detenu. This requirement as has been essentially recognised and mandated by two decisions of the Constitution Bench of this Court, does

not, in any way, undermine the appropriate Government’s authority to consider and dispose of such representation of any detenu under the

preventive detention law. The right of the Central Government or for that matter any appropriate Government to consider and dispose of a

representation of a detenu, preventively detained, has to be harmoniously construed with the obligation cast on it to forward a pending representation

to the Advisory Board as has been consistently held in Jayanarayan Sukul 1970(1)SCC219 and K.M. Abdulla Kunhi 1991(1)SCC476.†[underlining

by us for emphasis]

With the above principles in mind we look at the manner in which the consideration of the representation was carried out by the appropriate

Government. We see from the records that after supply of relevant documents along with the detention order, the detenu had made a representation to

the Government on 14.09.2020. A representation was made to the Advisory Board much later on 19.10.2020. The reference by the appropriate

Government to the Advisory Board was on 30.09.2020; after about 16 days from the date of representation to the Government. As rightly contended

by the learned Senior Government Pleader, if the representation to the Government has not been considered, there would have been a ground raised

of the Government having not timely considered the representation against the preventive detention; which right the Constitutional Courts have

zealously guarded as an unimpeachable right of the detenu. It is also pertinent and relevant that despite rejection of the representation; the same was

forwarded to the Advisory Board which had considered the facts and circumstances leading to the detention order as also the representations before

itself and the Government, while affirming the detention caused.

The illegible and unreadable copies are specifically pointed out from the memorandum of writ petition produced as Ext.P9, Ext.P11 and Ext. P12.

Ext.P9 is the final report in relation to Crime No.1318/2016. Ext.P11 is the FI Statement and Ext.P12 is the order in Crl.M.C. No.1718 of 2018 filed in

Crime No.1006 of 2016. Both these crimes, though part of the earlier order, is not a ground specifically raised in the instant order; despite it having

been mentioned in the instant order too. The prejudicial acts, leading to offences, which were the grounds for the present detention were Crime

Nos:1073 of 2015, 259 of 2018 and 155 of 2020, registered respectively in the North Paravur [Kerala], Uppinangadi (State Of Karnataka) and Aluva

East [Kerala] Police Stations. We do not find any reason to interfere with the detention order on the ground raised of an illegible and unreadable copy

having been supplied, since the said documents do not refer to grounds in support of the instant order and there is no prejudice caused to the detenu.

One another ground raised is with respect to all the bail orders and the conditions therein having not been considered by the Detaining Authority.

The petitioner also relies on Rekha [supra]. The absence pointed out from Ext.P1(a), Index of Details of Records, are item Nos.4 & 6 with reference

to Crime No.1066 of 2016 and Crime No.1318 of 2016, both of Perumbavur Police Station. Both these crimes again were not among the three crimes

specifically raised as grounds in the instant order of detention. On the last ground of the detention order being passed, when the accused was in

judicial custody, there are sufficient reasons as seen from the detention order itself. There, the Detaining Authority had specifically requested for the

details of bail applications filed in the crimes, under which the detenu was subjected to judicial custody. The Sponsoring Authority had specifically

reported that the bail applications were rejected by the Sessions Court. But still the Sponsoring Authority had pointed out the various instances when

the detenu had repeatedly committed offences after release from judicial custody. As a matter of fact, rejection of bail was challenged before the

High Court and the detenu was granted bail by this High Court on 06.01.2021, after the detention was made. The Detaining Authority had considered

the recommendation and on the specific ground of the repeated commission of offence, even when released on bail, the detention order was passed

with specific reference to Crime No.155 of 2020, which was committed after the earlier preventive detention order was set aside by the High Court.

We find no reason to interfere with the detention order, order of the Advisory Board or the Government and affirm the same. We reject the writ

petition, leaving the parties to suffer the cost.