Sreedevi vs State of Kerala and Others

K.T. Sankaran, J.—Petitioner, the mother of Vishnu @ Motta Vishnu, who has been detained in Central Prison, Viyyur, pursuant to an order of detention dated 9.3.2012 issued under the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred to as ''the KAAPA''), challenges the order of detention. The order of detention was issued on 9.3.2012. The detenu was arrested on 11.3.2012. The Government approved the order of detention u/s 3(3) of the KAAPA, on 20.3.2012. The order was confirmed u/s 10(4) of the KAAPA, on 17.5.2012.

In the order of detention, it is stated that the detenu is involved in 5 criminal cases and therefore, he satisfies the definition of "known rowdy" under 2(p)(iii) of the KAAPA. In the grounds of detention, the details of the cases in which the detenu is involved are stated. The following are the cases in which the detenu is an accused:

The learned counsel for the petitioner submitted that the detaining authority did not properly apply his mind while passing the order of detention. The crimes referred to in the grounds of detention are of such a nature that it cannot be said that the detenu was involved in any antisocial activities within the meaning of the KAAPA and that in order to prevent him from committing any antisocial activity, it is necessary to make an order of detention. It is also submitted that even if all the allegations levelled against the detenu are taken as true, no authority could arrive at a conclusion that the activities of the detenu affected the public safety, public order or public health or the safety of individuals. It is submitted that in the nature of the offences alleged against the detenu, ordinary criminal laws of the land would be sufficient to deal with the situation and the extraordinary recourse to preventive detention was uncalled for.

The learned counsel for the petitioner relied on the decisions of the Supreme Court in Rekha Vs. State of T. Nadu tr. Sec. to Govt. and Another, and Munagala Yadamma Vs. State of A.P. and Others, .

In Rekha Vs. State of T. Nadu tr. Sec. to Govt. and Another, , the Supreme Court held:

It is all very well to say that preventive detention is preventive not punitive. The truth of the matter, though, is that in substance a detention order of one year (or any other period) is a punishment of one year''s imprisonment. What difference is it to the detenu whether his imprisonment is called preventive or punitive?

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Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: Was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Indian Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal.

In this connection, it may be noted that it is true that the decision of the 2 Judge Bench of this Court in Biram Chand v. State of U.P. was overruled by the Constitution Bench decision in Haradhan Saha case (vide para 34). However, we should carefully analyse these decisions to correctly understand the legal position.

In Biram Chand case this Court held that the authorities cannot take recourse to criminal proceedings as well as pass a preventive detention order on the same facts (vide para 15 of the said decision). It is this view which was reversed by the Constitution Bench decision in Haradhan Saha case. This does not mean that the Constitution Bench laid down that in all cases the authorities can take recourse to both criminal proceedings as well as a preventive detention order even though in the view of the Court the former is sufficient to deal with the situation. This point which we are emphasizing is of extreme importance, but seems to have been overlooked in the decisions of this Court.

No doubt it has been held in the Constitution Bench decision in Haradhan Saha case that even if a person is liable to be tried in a criminal court for commission of a criminal offence, or is actually being so tried, that does not debar the authorities from passing a detention order under a preventive detention law. This observation, to be understood correctly, must, however, be construed in the background of the constitutional scheme in Articles 21 and 22 of the Constitution (which we have already explained). Article 22(3)(b) is only an exception to Article 21 and it is not itself a fundamental right. It is Article 21 which is central to the whole chapter on fundamental rights in our Constitution. The right to liberty means that before sending a person to prison a trial must ordinarily be held giving him an opportunity of placing his defence through his lawyer. It follows that if a person is liable to be tried, or is actually being tried, for a criminal offence, but the ordinary criminal law (the Penal Code or other penal statutes) will not be able to deal with the situation, then, and only then, can the preventive detention law be taken recourse to.

Hence, the observation in SCC para 34 in Haradhan Saha case cannot be regarded as an unqualified statement that in every case where a person is liable to be tried, or is actually being tried, for a crime in a criminal court a detention order can also be passed under a preventive detention law.

It must be remembered that in cases of preventive detention no offence is proved and the justification of such detention is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence.

In Munagala Yadamma v. State of A.P. and others, 2012 ACR 383, the Supreme Court held thus:

No doubt, the offences alleged to have been committed by the appellant are such as to attract punishment under the Andhra Pradesh Prohibition Act, but that in our view has to be done under the said laws and taking recourse to preventive detention laws would not be warranted. Preventive detention involves detaining of a person without trial in order to prevent him/her from committing certain types of offences. But such detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating crimes which the detenu may have committed.

The learned Additional Director General of Prosecutions submitted that the detenu is alleged to have committed five crimes during the period from 13.6.2010 to 11.12.2011 and in one of the crimes, the offence u/s 307 of the Indian Penal Code is also involved. In two of the cases, where final reports were filed, the detenu did not appear before Court and he was absconding. It is submitted that persons of the locality are afraid even to make a complaint against the detenu and his activities are such as to cause fear in the minds of the people.

The learned Additional Director General of Prosecutions relied on the decisions of the Supreme Court in D.M. Nagaraja Vs. The Government of Karnataka and Others, Haradhan Saha Vs. The State of West Bengal and Others, and Raj Kumar Singh Vs. State of Bihar and Others, , in answer to the submissions of the learned counsel for the petitioner.

In the Constitution Bench decision of the Supreme Court in Haradhan Saha Vs. The State of West Bengal and Others, , the Supreme Court laid down the following principles, in the matter of preventive detention:

First, merely because a detenu is liable to be tried in a criminal Court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that the Police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention. Third, where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behavior of a person based on his past conduct in the light of the surrounding circumstances.

In Raj Kumar Singh Vs. State of Bihar and Others, , while dealing with a case of preventive detention under the Control of Crimes Act, 1981 (Bihar), the Supreme Court held:

Preventive detention for the social protection of the community is, as noted and observed in Vijay Narain Singh''s case (supra), a hard law but, it is a necessary evil in the modern society and must be pragmatically construed, so that it works. That is how law serves the society but does not become an impotent agent. Anti-social elements creating havoc have to be taken care of by law. Lawless multitude bring democracy and Constitution into disrepute. Bad facts bring hard laws but these should be properly and legally applied. It should be so construed that it does not endanger social defence or the defence of the community, at the same time does not infringe the liberties of the citizens. A balance should always be struck.

The executive authority is not the sole judge of what is required for national security or public order. But the court cannot substitute its decision if the executive authority or the appropriate authority acts on proper materials and reasonably and rationally comes to that conclusion even though a conclusion with which the court might not be in agreement. It is not for the court to put itself in the position of the detaining authority and to satisfy itself that untested facts reveal a path of crime provided these facts are relevant. See in this connection the observations of O. Chinnappa Reddy, J. in Vijay Narain Singh Vs. State of Bihar and Others,

In D.M. Nagaraja Vs. The Government of Karnataka and Others, , the detenu was involved in 11 criminal cases. Out of the 11 cases, in 4 cases, offence u/s 302 I.P.C. was alleged. In the other 7 cases also, serious offences were alleged. In that context, the Supreme Court held that Rekha''s case [ Rekha Vs. State of T. Nadu tr. Sec. to Govt. and Another, was distinguishable on facts.

The detenu is aged only 21 years. It is true that he is involved in 5 crimes, which attract the definition of "known rowdy" u/s 2(p)(iii) of the KAAPA. Only on the ground that a person is involved in sufficient number of crimes which attract the definition of "known rowdy", he need not be detained under the provisions of the KAAPA. The detaining authority must be satisfied that with a view to prevent such person from committing any antisocial activity within the State of Kerala in any manner, it is necessary to pass an order of detention. "Anti-social Activity" is defined u/s 2(a) of the KAAPA, which reads as follows:

"anti-social activity" means acting in such manner as to cause or likely to cause, directly or indirectly, any feeling of insecurity, danger or fear among the general public or any section thereof, or any danger to the safety of individuals, safety of public, public health or the ecological system or any loss or damage to public exchequer or to any public or private property or indulges in any activities referred in clauses (c), (e), (g). (h), (i), (l), (m), (n), (q) and (s) of this section

The ingredients of Section 2(a) of the KAAPA must be satisfied, in order to invoke Section 3 of the KAAPA. The subjective satisfaction of the detaining authority should not rest on the mere fact of registration of the required number of crimes against the person concerned. The detaining authority must be satisfied that in spite of the application of the ordinary laws of the land, in order to prevent such person from committing any antisocial activity, his detention is required under the KAAPA. For that purpose, the ingredients of Section 2(a) of the KAAPA should be available. The nature of the offence, the number of persons affected by the commission of such offence, the motive for the commission of offence and all other relevant facts could be taken into account for the purpose of arriving at the subjective satisfaction of the detaining authority. If there is non-application of mind by the detaining authority in respect of the relevant aspects u/s 2(a) of the KAAPA, the order of detention would be vitiated.

The detaining authority, in our view, did not properly apply his mind to the relevant aspects u/s 2(a) of the KAAPA, in the light of the nature of the crimes and other attendant circumstances. In our view, the non-application of mind by the detaining authority has vitiated the order of detention. For the aforesaid reasons, the order of detention issued against the detenu is quashed and the detenu is set at liberty. The detenu (Vishnu @ Motta Vishnu) shall be released from the Central Prison, Viyyur, forthwith, if his detention is not required in any other case. The Registry will communicate the judgment to the Superintendent of Central Prison, Viyyur.