Stella vs State of Kerala and Others

Basant, J.—The petitioner has come to this Court with this petition for issue of a writ of habeas corpus to direct the production of her husband Stephen, who has been detained u/s 3 of the Kerala Anti Social Activities (Prevention) Act, 2007 (hereinafter referred to as `the Act'') and to set him at liberty.

Against the said Stephen, the husband of the petitioner, Ext.P1 order of detention dated 27-8-2009 has been passed by the second respondent. In execution of the said order, he was detained on 18-9-2009. He continues in custody from that date. According to the respondents, approval u/s 3(3) of the KAAPA was given by the Government on 29-9-2009. The same was communicated to the detenu through the jail authorities on 30-9-2009. The detenu thus continues in custody from 29-9-2009.

According to the respondents, the detenu is a known goonda falling within the sweep of expression `bootlegger'' and consequently a goonda and a known goonda u/s 2(j) and 2 (o) of the KAAPA. The petitioner has as many as 9 cases against him in which final reports have been filed. Eight of the said nine cases are u/s 8 of the Kerala Abkari Act. These offences have been allegedly committed on various dates between 23-10-2002 and 19-3-2009. It is in these circumstances that Ext.P1 order of detention was passed by the second respondent on the basis of report received from the District Superintendent of Police, Kollam. The detenu continues in detention from 18-9-2009.

Before us, the learned Counsel for the petitioner and the learned Government Pleader have advanced their arguments. The learned Counsel for the petitioner assails the impugned order and the detention of the detenu on the following grounds:

1) There has been no proper application of mind by the detaining authority before Ext. P1 order was passed.

2) The necessary documents have not been furnished to the detenu as insisted by Section 7(2) of the KAAPA .

3) At any rate the order of approval has not been passed within the stipulated period of 12 days from the date of detention and the same was not duly served on the detenu.

Ground No. 1. It is contended that there is no proper application of mind. It is trite that the detaining authority must apply his mind properly and pointedly to all relevant circumstances. Two satisfactions have to be entertained by the detaining authority before ordering detention u/s 3 of the KAAPA. First of all, he must be satisfied objectively that the detenu is a known goonda or known rowdy. In this case the allegation is that the detenu is a known goonda. There are as many as eight cases which are relied on in support of the assertion that the alleged detenu is a known goonda. In eight out of those nine cases, allegations are u/s 8 of the Kerala Abkari Act. Final reports have been filed and the detenu faces indictment. He answers the definition of known goonda u/s 2(o) of the KAAPA. This aspect of the matter is not seriously disputed. In these circumstances, there is absolutely no merit in the contention that mind has not been properly applied by the detaining authority on the question whether the detenu is a known goonda. He answers the definition of known goonda u/s 2(o) of the KAAPA eminently.

The next aspect of the contention is that the latter subjective satisfaction has not been entertained properly. The law of preventive detention has often been described as the "jurisprudence of suspicion". Preventive detention is ordered not punitively after trial for any contumacious or culpable act already committed, but it is only an anticipation of probable future conduct on the basis of earlier conduct. In the instant case as already noted between the dates 23-10-2002 and 19-12-2009, the petitioner is alleged to have committed offences under the Kerala Abkari Act in as many as eight instances. All these alleged offences are u/s 8 of the Kerala Abkari Act. Final reports have been filed in all those cases. u/s 2(o)(ii) of the KAAPA all the said eight cases can be taken into consideration. We do not in these circumstances find anything to vitiate the latter subjective satisfaction that the detenu is likely to indulge in anti-social activities in future unless an order of detention is passed against him.

In these circumstances, we are unable to accept the challenge raised on ground No. 1 that there has been no proper application of mind by the detaining authority on both aspects - initial objective and the latter subjective satisfactions. The detaining authority appears to have applied its mind and has come to entertain satisfactions against the detenu on the basis of indisputable materials that are placed before the detaining authority. The challenge therefore fails.

Ground No. 2. It is contended that the relevant documents have not been furnished. Which are the relevant documents that have not been furnished? Records relating to all nine cases have been furnished and there are acknowledgments to prove such furnishing of records. It is on the basis of these cases that the requisite satisfaction has been entertained by the detaining authority. As a police officer is the complainant in it, one of the nine cases has to be excluded, i.e. the third case Crime No. 697/2008 dated 20-8-2008 which relates to an offence punishable u/s 332 of the Indian Penal Code. Even after excluding that, eight cases u/s 8 of the Kerala Abkari Act are there and documents relating to these cases have been furnished. In these circumstances, we find the contention that the relevant documents have not been furnished to be unacceptable factually. The learned Counsel has a contention that the relevant documents have not been furnished to the detenu. But the records reveal that the acknowledgment of the detenu has been taken by the officials after furnishing the documents u/s 7(2) of the KAAPA. The counsel contends that the detenu is an illiterate person and the mere fact that his thumb impression is there cannot lead to the conclusion that the copies have been furnished. In the light of the acknowledgment with the thumb impression of the detenu, which thumb impressions are not denied, we are unable to accept the contention that the relevant documents have not been furnished u/s 7(3) of the KAAPA. Not even an affidavit of the detenu is filed to assert that though his thumb impressions have been taken, the copies were not actually furnished. The challenge on ground No. 2 also fails.

Ground No. 3. The third contention is raised that no proper order of approval u/s 3(3) of the KAAPA has been passed by the Government. The said order has been produced as Ext.R5(b). That shows that the order was passed on 29-9-2009. The petitioner has a case that till the date of filing of this petition, i.e. 6-10-2009, copy of the order u/s 3(3) of the KAAPA had not been furnished to the detenu. This contention is countered by production of Ext.R5(b) in which there is an acknowledgment with the thumb impression of the detenu for having received copy of the same. The learned Counsel contends that this acknowledgment was taken much later. He called for the inward register maintained at the prison in an attempt to show that Ext.R5(b) order could not have reached the prison prior to 6-10-2009. The 5th respondent has filed an affidavit and has produced Ext.R5(a) and Ext. R5(b). According to him, such emergent communications relating to the detention under the KAAPA are not routed through the inward register. The messenger comes from the Secretariat to deliver such letters to the detenu. Such letters are delivered directly to the detenu in the presence of the jail officials. The messenger takes acknowledgment in the copy of the document and returns with such copy with the acknowledgment. According to respondent No. 5, in the instant case also Ext.R5 was brought to the jail by the messenger from the Secretariat. The original of Ext.R5(b) and a copy thereof were produced. The original was handed over to the detenu and the acknowledgment was taken on the copy and the same was returned with such messenger. It is submitted that the service was effected in the presence of the jail officials and the copy with the acknowledgment was taken back by the messenger who came to deliver the order of approval. Ext.R5(b) shows that there is an endorsement "copy received"( ) along with the thumb impression of the detenu. There is also an endorsement by the messenger that he has received acknowledged copy on 30-9-2009.

Evaluating the facts as revealed from the affidavits and the order Ext.R5(b) and R5(a) extract of the local delivery book, the conclusion appears to be inevitable that the order of approval dated 29-9-2009 was delivered to the detenu on 30-9-2009 by the messenger who came to deliver the order u/s 3(3) in the presence of the jail authorities. That conclusion of fact appears to us to be absolutely reasonable.

The learned Government Pleader further has placed the file before us to establish the fact that the order u/s 3(3) of the KAAPA was passed on 29-9-2009 itself. He has brought to our notice the fact that an acknowledgment was received from the Advisory Board which shows that the order of approval dated 29-9-2009 was delivered to the Advisory Board on 2-10-2009. It is the admitted case that the order of approval u/s 3(3) of the KAAPA need have been passed only by 6-10-2009. The last semblance of doubt in our mind as to whether the order of approval has been passed on 29-9-2009 is eliminated by a perusal of the file which shows that the said order u/s 3(3) of the KAAPA was delivered to the Advisory Board as early as on 2-10-2009. We do not in these circumstances entertain any modicum of doubt on the question whether the order of approval u/s 3(3) of the KAAPA dated 29-9-2009 was passed and copy delivered to the detenu.

The learned Government Pleader incidentally contends that it is not the invariable law that the order of approval u/s 3(3) of the KAAPA must be served on the detenu. The learned Government Pleader points out that in paragraphs 9 and 10 of the decision in Bidya Deb Barma Etc. Vs. District Magistrate, Tripura, Agartala, , the Supreme Court had considered an identical provision in Section 3(3) of the Preventive Detention Act and has proceeded to observe that the necessity for communication of the order of approval does not arise with strictness. The learned Government Pleader relies on paragraphs 9 and 10 of the said decision which we extract below:

Para. 9 ...Section 3(3) of the Preventive Detention Act does not specify that the order of approval is anything more than an administrative approval by the State Government. If this be so the necessity of communication of the approval does not arise with that strictness as does the decision under Rule 30A(8) of the Defence of India Rules.

Para.10. ...The scheme of the Preventive Detention Act is merely to approve the original detention by the District Magistrate and the continued detention after 12 days is not under any fresh order but the same old order with the added approval and what the detenu can question, if he be so minded, is the original detention and not the approval thereof.

In the instant case, we are satisfied that the order of approval has been passed on 29-9-2009 and the same has been served on the detenu on 30-9-2009. It is hence not necessary to delve deeper into the question whether omission to furnish copy of the order of approval passed u/s 3(3) of the KAAPA would vitiate the continued detention. In these circumstances, the contention laboriously built about non-compliance of Section 3(3) of the KAAPA cannot succeed.

The learned Counsel for the petitioner has requested this Court very vehemently that the inward register maintained in the prison may be called for. But in the light of the affidavit filed by the 5th respondent which asserts that receipt of Ext.R5(b) order u/s 3(3) of the KAAPA will not be revealed or borne out by the inward register maintained in the prison, we find no reason to call for that document. No other contentions are raised. We are in these circumstances satisfied that the impugned order of detention and the consequent detention do not warrant interference.

In the result, this writ petition is dismissed.