Uma vs State of Kerala

R. Basant, J.—This petition is filed by the petitioner for a writ of Habeas Corpus to direct release of her husband, Ramesh (hereinafter

referred to as the detenu) who is detained as per an order dated 20.2.2010 passed by the second respondent u/s 3 of the Kerala Anti Social

Activities (Prevention) Act (hereinafter referred to as the KAAPA).

The impugned order of detention (Ext.P1) was passed by the second respondent on the basis of a report (Ext.P4) submitted by the third

respondent to the second respondent u/s 3(1) of the KAAPA. The second respondent in turn had received Ext.P5 report from his subordinate

requesting him to initiate action under the KAAPA against the detenu. In execution of Ext.P1 order, the detenu was arrested on 22.2.2010. Order

of approval (Ext.P6) u/s 3(3) of the KAPPA and the order of confirmation (Ext.P9) u/s 10(4) of the KAAPA have already been passed. The

detenu thus continues in custody from 22.2.2010 and the period of detention authorised under Ext.P9 obliges him to continue in custody till

22.8.2010.

The detenu is proceeded against on the allegation that he is a known goonda. He is allegedly an abkari offender - a boot-legger. Reliance is

placed, inter alia, on six crimes by the sponsoring and detaining authority. Tabular column given below gives the details of all the six cases which,

inter alia, have been registered against the detenu.

Sl. Police Station & Date of Seizure Date of final report

No.Crime No. Registration

Cr.No. 382/2009 - 30.7.2009 14 cans of spirit 35 Case charge

Town South Police litres each (about 490sheeted on

Station, Palakkad u/s litres worth Rs. 18.01.10 before

55(a) of the Abkari 98,000/- concealed inJFMC III,

Act, Ramesh included the vehicle. Palakkad (Ramesh

in the array of arrested on

accused on 5.1.2010)

10.12.1999 and

report submitted to

JFMC, Palakkad.

Cr.No. 491/09-Town20.10.200925 cans of illicit spirit Ramesh arrested on

North P.S. Palakkad containing 32 litres 31.1.2010

u/s 55(a) of Abkari each concealed in

Act vehicle.

Cr.No. 181/06- 30.7.2006 350 cans of spirit 35 Charge sheeted on

Walayar litres each (total 8.1.2010.(Ramesh

P.S.Palakkad - 12250 litres) formally arrested on

Abkari Act during the 6.8.2008)

course of investigation

Sections 61, 63 of

Abkari Act and

Section 120B of

I.P.C. added)

Cr. No. 263/06 - u/s 1.10.2006 340 cans of spirit, 35 Charge sheeted on

55(a) of Abkari Act litres each (total 28.10.2008.

11900) Formally arrested

(i) Cr.No. 3/08 of on 31.7.2008.

Excise Dept. u/s

55(a) of Abkari Act Charge sheet on

in connection with the 18.2.2010

same incident

(ii) Cr.No. 26/08 u/s

407, 420, 120B r.w.

34 I.P.C. on

the complaint of 24.1.2008 8540 litres of spirit Ramesh arrested on

Assist Sales Manager, 16.7.2010

Malabar Cements,

(during the course of

investigation S.55 (a)

of the Abkari Act

added) (Both

investigated by C.I. of

Police under

supervision of

S.P.Palakkad

members of Special

Investigating Unit

under direct control of

Illicit Spirit Movement

Investigation Team

(ISISMIT) (Ramesh

included in the array

of accused on

25.4.2008

Cr. No. 663/07 u/s 19.9.2007 8925 litres of spirit Charge sheet on

8(1)(2) r/w. Section kept in 255 cans each18.2.2010

55(a) of Abkari Act containing 35 litres

(Ramesh included in concealed under Formally arrested

the array of accused cement bags in lorry. on 30.7.2008

on 5.6.2008.

It will be appropriate and apposite straight away to refer to the prior history of the proceedings against the detenu. Earlier, an order of detention

dated 31.10.2008 was passed by the second respondent directing the preventive detention of the detenu u/s 3 of the KAAPA. It is submitted that

in execution of the said order of detention dated 31.10.2008, the detenu was actually taken into custody on the same day, i.e. 31.10.2008. The

detenu continued in custody and the petitioner came before this Court with W.P.(Crl) No. 449/2008 to challenge the order of detention and the

continued detention of the detenu. By Ext.P8 judgment dated 19.2.2009 (a copy is produced as Ext.P8) another Division Bench of this Court had

set aside the continued detention of the detenu on the ground that there was failure/omission to give an opportunity to the detenu to be represented

by a lawyer before the Advisory Board. We may straight away refer to para.33 of the said judgment which reads as follows;

However, we make it clear that it will be open to the Government or the competent authority to issue fresh orders of detention if so warranted,

in accordance with law. We also hasten to add that we have not considered any of the other contentions raised by the petitioners as regards the

validity and legality of the two orders of detention in these two cases.

(Emphasis supplied)

It was a common judgment under which 2 petitions relating to preventive detention of 2 detenus were disposed of.

On the strength of Ext.P8 judgment, the detenu was released on 19.2.2009, it is submitted and accepted.

Thereafter, the detenu was allegedly involved in two more crimes which are referred to as Sl. Nos. 1 and 2 in the tabular column given above. In

Crime No. 382/2009 of Town South Police Station, Palakkad, the alleged incident - of illegal transportation of 490 litres of spirit worth Rs.

98,000/- concealed in a vehicle, took place on 30.7.2009. In the F.I.R. registered, complicity of the detenu was not revealed. He was brought on

the array of accused on 10.12.2009. He was arrested on 5.1.2010. The final report in that case was filed on 18.1.2010. The detenu was ordered

to be released on bail on 29.1.2010.

The next crime No. 491/2009 was registered at the Town North Police Station, Palakkad. The allegation in the said F.I.R. registered on

20.10.2009 is that 25 cans of illicit spirit each containing 32 litres were transported illegally in a vehicle. In that crime also, in the F.I.R. registered,

the detenu is not shown to have any complicity. He was brought on the array of accused in the course of investigation on 5/1/2010. He was

arrested on 31.1.2010. The final report in that case had not been submitted on the date of the impugned order of detention, Ext.P1. By order

dated 23.2.2010, the detenu was ordered to be released on bail in that crime. Before that, the impugned order of detention dated 20.2.2010 was

passed and the detenu was arrested and detained on 22.2.2010. While the detenu was in custody as an accused, Ext.P5 report was submitted to

the third respondent by his subordinate and Ext.P4 report dated 18.2.2010 u/s 3(1) was submitted to the second respondent by the third

respondent.

Detailed arguments have been advanced before us by the learned Counsel for the petitioner and the learned Director General of Prosecutions.

The learned Counsel for the petitioner contends that the impugned order of detention and the continued detention of the detenu is legally not

justified and is liable to be set aside. Various grounds are urged. Grounds of challenge can be summarised as follows:

1) The sponsoring and detaining authorities erred grossly in placing reliance on events prior to the earlier order of detention dated 31.10.2008

which was set aside by Ext.P8 judgment of this Court.

2) The former objective satisfaction as well as the latter subjective satisfaction could not have been validly entertained by the detaining authority in

the facts and circumstances of this case.

Ground No. 1. The learned Counsel for the petitioner Sri. R. Anil strenuously contends that the sponsoring and detaining authorities erred

grossly and misdirected themselves in law in choosing to place reliance on the events and incidents which took place prior to the earlier order of

detention dated 31.10.2008. Counsel argues that in the light of the well settled principles of law, the detaining authority did not have the legal

competence to take cognisance of events prior to 31/10/2008 on the basis of which the earlier order of detention was passed. The learned

Counsel for the petitioner in this context places reliance on the decision of the three Judge Bench of the Supreme Court in Ibrahim Bachu Bafan

Vs. State of Gujarat and Ors, . The counsel also relies on the decision in Chhagan Bhagwan Kahar Vs. N.L. Kalna and Others, in which Ibrahim

(supra) has been followed. The counsel further relies on the decision in Praseetha v. State of Kerala 2010 (2) KLT 44 : 2009 (4) KHC 382

(D.B.) in which both earlier precedents of the Supreme Court have been referred to and followed.

The counsel places particular reliance on para. 12 of the decision in Chhagan Bhagwan Kahar Vs. N.L. Kalna and Others, which we extract

below:

It emerges from the above authoritative judicial pronouncements that even if the order of detention comes to an end either by revocation or by

expiry of the period of detention there must be fresh facts for passing a subsequent order. A fortiori when a detention order is quashed by the

Court issuing a high prerogative writ like habeas corpus or certiorari the grounds of the said order should not be taken into consideration either as

a whole or in part even along with the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because

once the Court strikes down an earlier order by issuing rule it nullifies the entire order.

(Emphasis supplied)

The learned Counsel for the petitioner submits that in view of the binding dictum in the said decisions, it is impermissible for the detaining authority

to place reliance on pre 31.10.08 incidents on the basis of which the earlier order of detention was passed which order of detention was set aside

in Ext.P8 judgment.

The learned Counsel for the petitioner in order to further support this contention points out that even if all the allegations raised in the earlier

order of detention dated 31.10.08 were held to be correct, the obligation of the detenu would have been to undergo preventive detention only for

a period of six months from 31.10.08. That period could not have, at any rate, exceeded six months. He had actually undergone detention from

31.10.08 to 19.2.09. If because of Ext.P8 judgment, the earlier order of detention and all the reasons which were pressed into service to support

such order of detention were to be ignored, the detenu will now have to suffer a fresh period of preventive detention for a further period of six

months notwithstanding the fact that he has already undergone detention for a period of about 4 months from 31.10.08 to 19.2.09. This would

work out injustice unintended by the statute and the constitutional provisions. This circumstance is additionally relied on by the learned Counsel for

the petitioner to request this Court to take the view which has already been taken in Ibrahim Bachu Bafan Vs. State of Gujarat and Ors, , Chhagan

Bhagwan Kahar Vs. N.L. Kalna and Others, and Praseetha v. State of Kerala 2010 (2) KLT 44 : 2009 (4) KHC 382 .

These submissions of the learned Counsel for the petitioner do appear to us to be impressive. The learned Director General of Prosecutions

does not dispute the propositions of law; but contends that in the light of paragraph-33 of Ext.P8 judgment which we have already extracted

above, the option of the authorities to pass a fresh order of detention on the earlier grounds is not in any way fettered. The learned D.G.P. points

out that the sole rationale of Ext.P8 judgment was the omission/failure/refusal to make the services of a lawyer available to the detenu when his

case came up for consideration before the Advisory Board. On merits, the matter was not considered at all by this Court in Ext.P8. The

observations in paragraph 33 of Ext.P8 must make the crucial distinction in this case and even if the detaining authority had relied on pre 31.10.08

incidents/circumstances, they cannot be held to vitiate the present order of detention, contends the learned Counsel.

We are bound by the dictum in Ibrahim Bachu Bafan, C.B. Kahar and Praseetha (supra). When once a constitutional court in exercise of its

powers to issue high prerogative writs sets aside an order of detention it is indisputable that the events/incidents which instilled the subjective

satisfaction cannot be relied upon afresh to pass a fresh order of detention. We find absolutely no doubt on that proposition of law. We take note

of the supplementary argument advanced by the learned Counsel for the petitioner to support the very same conclusion. If this Court were to

choose to accept the arguments of the learned D.G.P., it would lead to the ridiculous consequence that for having succeeded in Ext.P8

proceedings the detenu will have to undergo detention for a further period of six months in addition to the detention for a period of about 4 months

already undergone earlier. If he had not chosen to challenge the order, his woes would have ended with detention for a period of 6 months. For

having succeeded in the challenge he will be exposed to the further misfortune of detention afresh for a further period of 6 months afresh. That

obviously cannot be the law. We are persuaded to accept that contention.

The only questions then is whether the observations in para.33 would lift the fetter placed on the detaining authority by the three decisions

referred above. It is for this purpose that we have extracted the entire para. 33 earlier. We have carefully gone through the said para.33. We are

unable to agree that the learned Judges of the Division Bench intended or anticipated that fresh orders of detention not justified by Ibrahim Bachu

Bafan, C.B Kahar and Praseetha referred above, can be passed on the strength of the said observations in para.33. Having found that such a fresh

order on the same grounds is not justifiable on the strength of the precedential authority referred above, we are unable to agree that the

observations in para.33 can come to the rescue of the respondents. Para.33 clearly saves such action only if the same is in accordance with law.

The challenge on the first ground therefore succeeds.

Ground No. 2: The learned D.G.P. contends that even if all the grounds relied on in the order of detention dated 31.10.08 were ignored and

eschewed, still the order of detention can be amply supported. The learned D.G.P. submits that to decide the question whether the detenu is a

known rowdy or known goonda on the date of the fresh order of detention, the earlier incidents can also be relied on. According to the learned

D.G.P., only the grounds for entertaining the subjective satisfaction relied on in the previous order of detention cannot be relied on in the

subsequent order of detention. Para. 12 of C.B. Kahar (supra) makes the position crystal clear. In clear distinction from other pieces of legislation

regarding preventive detention, the KAAPA contemplates two satisfactions, commonly referred to as the initial/threshold/objective satisfaction and

the latter subjective satisfaction. In order to pass a valid order of preventive detention u/s 3 of the KAAPA both satisfactions must be entertained

by the detaining authority. The former objective satisfaction is whether the proposed detenu is a known goonda or a known rowdy. To decide

whether a detenu is a known goonda or a known rowdy - that is to entertain the requisite former objective satisfaction, the antecedents of a detenu

can be considered and while considering that, all the cases which may bring him within the sweep of the expression ''known goonda/known rowdy''

can also be considered. The fetters placed by the precedents above can apply only to the latter subjective satisfaction and not the

initial/threshold/objective satisfaction, contends the learned D.G.P.

We find merit in this contention. The precedents referred above refer to the subjective satisfaction to be entertained by the detaining authority.

The detention on the basis of such subjective satisfaction entertained already having been set aside by a constitutional court by issuing a high

prerogative writ those grounds which earlier instilled the subjective satisfaction in the mind of the detaining authority cannot be relied on afresh. But

that is not to say that those cases cannot be considered for entertaining the former objective satisfaction - as to whether the detenu is a known

goonda or a known rowdy. The learned D.G.P. submits, even if the earlier grounds cannot be relied on, that to entertain the subjective satisfaction,

there can be no fetter on ascertaining the factual position as to whether the proposed detenu is a known goonda or a known rowdy. Even Ibrahim

Bachu Bafan and C.B. Kahar (supra) are no authority for the proposition that the earlier events cannot be taken into consideration to entertain the

former objective satisfaction, contends the learned D.G.P.

The learned D.G.P. in this context draws our attention to the analogy available in S. 13 of the KAAPA which makes it clear that even when an

order of detention is revoked by the Government u/s 13 of the KAAPA or lapses by expiry of the period of detention, a further order of detention

u/s 3 of the KAAPA can be passed if the detenu continues to be a known rowdy or known goonda and a fresh incident has taken place

subsequent to release by such revocation or expiry of the period of detention. We feel that the said rationale can safely be imported while

considering the consequences of setting aside of an earlier order of detention by issue of high prerogative writ by a constitutional court.

The learned D.G.P. hence argues that, at any rate, the previous crimes can be taken into consideration by the detaining authority to decide

whether the detenu is a known goonda or a known rowdy. The subsequent events after the previous order of detention can certainly be taken into

consideration to decide whether the latter subjective satisfaction can be entertained. The learned D.G.P. submits that in this case on the basis of the

events that had taken place subsequent to the earlier order of detention dated 31.10.08, the impugned order of detention can be attempted to be

justified. We agree.

The learned D.G.P. points out that Crime Nos. 382/09 and 491/09 (Sl. Nos. 1 and 2 above) do themselves bring the detenu within the sweep

of the expression ''known goonda'' u/s 2(o) of the KAAPA. In the first case, final report has been filed. The nature of the offence is such that in

both cases the offender/detenu would fall within the sweep of the expression ''goonda'' in Section 2(j) of the KAAPA. In the case Sl. No. 2 final

report has not been filed; but relying on the decision in Elizebath George v. State of Kerala 2008 (4) KLT 425 which still remains in force and is

binding on this Court, the said case Sl. No. 2 can also be taken into account notwithstanding the fact that the final report has not been filed. The

learned D.G.P. hence argues that whether Sl. Nos. 3 to 6 are taken into account or not, Sl. Nos. 1 and 2 crimes shown above in the tabular

column would themselves bring the detenu within the sweep of the expression ''known goonda'' u/s 2(o) of the KAAPA.

We find the said contention to be acceptable. In Elizebath George (supra) the expression ''found on investigation'' in Section 2(o)(ii) was

considered by a Division Bench and it was held that the fact that the final report had not been filed is no reason to eschew such a case u/s 2(o)(ii)

of the KAAPA. It is true that this Bench has expressed reservations about the acceptability of the dictum in Elizebath George (supra) in two cases

i.e. Sathi v. State of Kerala 2010 (1) KLT 65 : 2009 (2) KLD 377 and Ranjini v. State of Kerala 2009 (3) KLT 500 and has made a reference to

the Full Bench of that question in a later decision. But the fact remains that we are at the moment bound by the dictum in Elizebath George (supra).

In the light of the dictum in Elizebath George (supra), Crime No. 491/09 can also be taken into reckoning to decide whether the detenu is a

''known goonda'' u/s 2(o)(ii) of the KAAPA. Crime No. 382/09 in which final report has already been filed which is subsequent to the earlier

order of detention on 31.10.08 can certainly be taken into account without any dispute. Taking Sl. Nos. 1 and 2 into consideration, the detenu falls

within the sweep of the expression ''known goonda'' in Section 2(o) of the KAAPA. The view which we have taken earlier also leads us to the

conclusion that even cases Nos. 3 to 6 which relate to incidents that had taken place prior to 31.10.08 can also be taken into account to decide

whether the detenu is a known goonda.

Lest there be any confusion, we may mention that in Crime No. 491/09 (Sl. No. 2) a report to array the detenu as an accused had already

been submitted on 5.1.10 and after the Investigating Officer satisfied himself that the detenu has committed the offence, the detenu was arrested on

31.1.10. Thus, it is evident that the Investigating Officer had found the detenu to be guilty of the offence alleged in Crime No. 491/09 bringing the

case squarely within Section 2(o)(ii) of the KAAPA.

The contention that the final report has not been filed in Sl. No. 2 cannot, in these circumstances, be of any help to the detenu in the light of the

dictum in Elizebath George (supra).

The above discussions lead us to the conclusion that whether Sl. Nos. 3 to 6 crimes are taken into account or not the detenu was a known

goonda on 20/2/10 - the date of the impugned order of detention, on the strength of cases Sl. Nos. 1 and 2. We further hold that cases 3 to 6 can

also be taken into account and hence cases 1 to 6 together undoubtedly and certainly brings the detenu within the sweep of the expression ''known

goonda'' u/s 2(o) of the KAAPA. We do not, in these circumstances, find any merit in the first contention raised under Ground No. 2 that the

former objective satisfaction was not validly entertained by the detaining authority before passing the impugned order of detention.

We now come to the latter subjective satisfaction. The learned Director General of Prosecutions had initially attempted to justify the latter

subjective satisfaction on the basis of not only cases Sl. Nos. 1 and 2, but also on the basis of cases Sl. Nos. 3 to 6. We have already taken the

view that cases Sl. Nos. 3 to 6 cannot be taken into consideration for the purpose of justifying the latter subjective satisfaction u/s 3 of the

KAAPA. The learned Director General of Prosecutions submits that even if cases Sl. Nos. 3 to 6 are excluded from consideration totally, u/s 7(4)

of the KAAPA, cases Sl. Nos. 1 and 2 are absolutely sufficient and do justify the latter subjective satisfaction entertained by the detaining

authority. We are now proceeding to consider whether the latter subjective satisfaction is justified on the basis of cases Sl. Nos. 1 and 2 alone.

It is well settled that subjective satisfaction entertained by the detaining authority is not justiciable. This Court does not sit in appeal in

proceedings under Article 226 of the Constitution over the decisions taken by the detaining authority on the basis of the materials placed before the

detaining authority as to whether preventive detention is necessary or warranted. The short area of jurisdiction is to ascertain whether the

subjective satisfaction is entertained properly on the basis of materials placed before the detaining authority. If the entertainment of the latter

subjective satisfaction is vitiated by mala fides or by total absence of materials or by reference to and reliance on materials which cannot legally be

taken note of, certainly the powers of judicial review vested in this Court can be invoked and the order of detention on the basis of such alleged

subjective satisfaction can be set aside. But certainly if there are materials it is not open to this Court to sit in appeal over the subjective satisfaction

entertained by the detaining authority.

That takes us to the question whether the two cases - Sl. Nos. 1 and 2, can induce the requisite latter subjective satisfaction. We may, first of

all, deal with the objections raised against case Sl. No. 2 on the ground that final report has not been filed yet. It is trite that the law of preventive

detention can be described to be the jurisprudence of suspicion. In proceedings under preventive detention laws there is no question of the

detaining authority (or the court in judicial review) pronouncing whether the detenu is guilty or not of the offence alleged. From the past conduct of

a detenu the detaining authority is to infer or predict possible future conduct on the part of the detenu and must take a decision as to whether

preventive detention of the detenu is necessary to stop him from committing anti-social activity. Precedents galore to suggest that even registration

of a crime is not necessary before the subjective satisfaction is entertained as to whether preventive detention is necessary. It is true that in Crime

No. 491/09 (Sl. No. 2) final report has not been filed yet. The question whether the final report has been filed or not, we have already taken note

of with the help of the dictum in Elizebath George (supra) is not crucially relevant even to answer the first question whether the former objective

satisfaction can be entertained or not. We do not, in these circumstances, find any merit in the contention that crime Sl. No. 2 must have been

eschewed from consideration while deciding whether the latter subjective satisfaction can be entertained or not. That contention cannot stand. That

final report has not been filed in Crime No. 491/ 09 is certainly no reason to conclude that the said case must be excluded and eschewed by the

detaining authority when the need to preventively detain the detenu was considered for the purpose of the latter subjective satisfaction u/s 3 of the

KAAPA.

The learned Counsel for the petitioner raises the next contention that even if cases Sl. Nos. 1 to 6 were taken into consideration and, at any

rate, if cases Sl. Nos. 1 and 2 alone are taken into consideration, it cannot be concluded that the activities of the alleged detenu pose any threat to

public order. At worst, there is only violation of the provisions of the Abkari Act and by no stretch of imagination can it be held to be posing any

threat to public order. We find no merit in this contention.

Before us, in this Writ Petition, the constitutional validity of the KAAPA is not challenged. ""Anti-social activity"" is defined in Section 2(a) of the

KAAPA. A person indulging in anti-social activity is defined to be a goonda u/s 2(j). A goonda answering the descriptions given in Section 2(o) is

a known goonda. Such a known goonda if he poses a threat of committing anti- social activity again in future can be ordered to be detained u/s 3

of the KAAPA. We find that in the absence of a challenge to the constitutional validity of the KAAPA the petitioner cannot be heard to contend

that anti-social activity as defined u/s 2 of the KAAPA does not amount to any threat to public order. Section 3 authorises the preventive detention

of a detenu if such detention is necessary ""with a view to preventing such person from committing any anti-social activity within the State of

Kerala"". So reckoned the question to be considered is whether the prediction or inference drawn by the detailing authority that the detenu is likely

to indulge in anti-social activity which as per the definition u/s 2(a) includes the activity of bootlegging.

We have gone through the nature of allegations raised in Crimes Sl. Nos. 1 and 2 as also Sl. Nos. 3 to 6. By no stretch of imagination can it be

held that the activities alleged in Crimes Sl. Nos. 1 and 2 do not amount to anti-social activity. In these circumstances, we take the view that there

is no merit in the contention that crimes Sl. Nos. 1 and 2 taken separately or when taken along with Crimes Sl. Nos. 3 to 6 do not reveal any

threat to public order. Threat of the detenu committing anti-social activity is clearly revealed from crimes Sl. Nos. 1 and 2 by themselves. Needless

to say, Crimes Sl. Nos. 3 to 6 also reveal that threat of the detenu indulging in anti-social activity - bootlegging particularly. The contention raised

under Ground No. 2 that the apprehended threat is not really a threat to public order is, in these circumstances, found to be without any merit.

It is next contended that, at worst, the detenu can only be said to have indulged in the activity of sale of spirit in Tamil Nadu which is not an

offence there. The fact that the spirit sold by the detenu in Tamil Nadu has been transported into Kerala by some others cannot, at any rate,

persuade the detaining authority to entertain the satisfaction that the detenu is likely to indulge in anti-social activity ""within the State of Kerala"". The

learned Counsel Sri. Anil argues that no part of the activity of the detenu can be said to threaten the possibility of anti-social activities within the

State of Kerala.

We have considered this contention in detail. We have gone through the nature of the allegations raised in crimes Sl. Nos. 1 and 2. In both

these crimes the allegation u/s 120B IPC (criminal conspiracy) has not been specifically raised. But the learned D.G.P. submits that it would be idle

for the court to split up the activity into two - of that part which took place in Tamil Nadu and the other part which takes place in Kerala. It is an

integral and whole transaction and by no stretch of imagination can it be held that the activity of transportation into Kerala is indulged in by the

miscreants without any reference to the activity of the detenu. We find force in the contention. It would be myopic to split up the acts alleged and

to say that the acts are committed at venues separated by inter-State borders and therefore the detenu is not responsible for the anti-social activity

which results in Kerala. The said contention is found to be without any substance.

The learned Counsel for the petitioner next contends that the detaining authority erred grossly in not adverting to the documents relevant to the

offences allegedly committed in crimes Sl. Nos. 1 and 2. Without any materials before the detaining authority, the detaining authority had jumped to

the conclusion that the latter subjective satisfaction can be entertained. In short, the contention is that the materials placed before the detaining

authority relevant to crimes Sl. Nos. 1 and 2 could not have instilled the satisfaction in the mind of the detaining authority that the detenu is likely to

indulge in anti-social activities in the State of Kerala.

The learned D.G.P. has taken pains to take us through all the relevant materials that were placed before the detaining authority and which were

adverted to by the detaining authority having relevance to crimes Sl. Nos. 1 and 2. The learned D.G.P. contends that the materials which were

placed before the detaining authority by the sponsoring authority and referred to by the detaining authority in Ext.P3 must clearly convey that

sufficient materials to induce the requisite satisfaction were available before the detaining authority and the detaining authority had referred to such

materials.

So far as crime Sl. No. 1 is concerned, the learned D.G.P. points out before the detaining authority the relevant F.I.R. (page No. 109), the

relevant report for inclusion of the detenu as the 4th accused in Crime (page No. 119), the relevant seizure mahazar (page No. 113), the charge

sheet filed by the police after investigation (page Nos. 136 and 137) and gist of the case (page Nos. 493) were all available. These materials were

sufficient to instil the requisite satisfaction in the mind of the detaining authority, contends the learned D.G.P.

So far as Crime Sl. No. 2 is concerned, the learned D.G.P. points out that before the detaining authority, the F.I.R. (page No. 161), report to

array the detenu as the 5th accused in the case (page No. 167), confession of the co-accused Balagopal (page Nos. 183, 185 and 186), gist of

the case (pages 495 and 497) and detailed report regarding the role of the detenu (page No. 533) were all available. Copies of these relevant

documents referred above were furnished to the detenu and have been acknowledged by him also, it is submitted. In these circumstances, the

learned D.G.P. contends that the plea that there were no sufficient relevant materials before the detaining authority to entertain the latter subjective

satisfaction is untenable.

There is no dispute that the above documents were furnished to the alleged detenu. Ext.P3 confirms the same.

The learned Counsel for the petitioner submits that so far as crime Sl. No. 1 is concerned, though the charge sheet had been furnished to the

detenu, copies of all documents accompanying the charge sheet in detail were not furnished to the detenu. The learned Counsel submits that the

detaining authority cannot be a prisoner of the conclusions reached by the Investigating Officer in the final report filed by the Investigating Officer.

All relevant materials which induce the satisfaction in the mind of the Investigating Officer must also have been furnished to the detenu. Only then

the mandate under Article 22(5) of the Constitution and Section 7(2) of the KAAPA can be said to be satisfied. Inasmuch as the detaining

authority in this case had not admittedly referred to all the documents which accompanied the charge sheet/final report u/s 173(2) Code of Criminal

Procedure, the latter subjective satisfaction is vitiated, contends the learned Counsel.

The learned D.G.P. counters this contention with the help of the decision in Safiya Vs. Rep. by Secretary, The District Magistrate and District,

Superintendent of Central Prison and The District Superintendent of Police, . The learned D.G.P. contends that it is not necessary at all that the

copies of all documents which accompanied the charge sheet must be furnished to the detenu under Article 22(5) of the Constitution or Section

7(2) of the KAAPA. The learned D.G.P. points out that the scheme of the KAAPA is that one conviction of an offence u/s 2(t)(i) - and two

convictions for offences u/s 2(t)(ii) and three findings of guilt after due investigation by the Investigating Officer of offences u/s 2(t) are all equated.

When there is one conviction by a court u/s 2(t)(i) or two convictions by a court u/s 2(t)(ii) the detaining authority will not be entitled to go into the

sufficiency of the materials justifying the conviction. By the same reasoning, the conclusion drawn by a police officer after due investigation of the

commission of three Section 2(t) offences by the detenu cannot be gone into by the detaining authority. In the light of the decision in Safiya (supra)

the detaining authority has no obligation to go through all the documents which were relied on in support of the charge sheet, contends the learned

D.G.P.

The learned Counsel Sri. Anil contends that me said decision in Safiya (supra) can help the court only to conclude that all the materials filed

along with the charge sheet need not be insisted to be produced to decide whether the detenu is a known rowdy or a known goonda u/s 2(p) or

Section 2(o) of the KAAPA. Those are relevant only to decide whether the detenu is a known goonda or a known rowdy. But to decide the latter

subjective satisfaction as to whether a detenu deserves to be detained, the detaining authority cannot rely on the satisfactions of others. Mind must

be applied to the relevant materials and the detaining authority must come to a conclusion himself though subjectively that such detention is

necessary. The fact that an Investigating Officer or Investigating Officers had come to conclusions about the complicity of the detenu in

investigations conducted by them cannot be substituted for the subjective satisfaction which the detaining authority must entertain. In these

circumstances, it is impermissible for the detaining authority to contend that the Investigating Officer had satisfied himself and filed a final report and

therefore the detaining authority only looked into the final report.

We find merit in this contention raised by the learned Counsel for the petitioner. Though for the purpose of deciding whether a person is a

known rowdy or a known goonda satisfaction of the Investigating Officer u/s 2(o)(ii) or Section 2(p)(iii) may be sufficient, for the purpose of

entertaining the latter subjective satisfaction we are certainly of the opinion that the detaining authority must himself be satisfied by a consideration

of all materials that the detention of the detenu is necessary. The detaining authority we have no hesitation to assert cannot be a prisoner of the

findings of the Investigating Officer. If that contention were accepted, the insistence on entertainment of the latter subjective satisfaction by the

detaining authority would become illusory and unreal. We agree with the learned Counsel for the petitioner and hold that the latter subjective

satisfaction must be entertained by the detaining authority subjectively on the basis of the materials placed before the detaining authority. The

conclusions of the Investigating Officer cannot be permitted to take the place of the subjective satisfaction of the detaining authority.

We are, however, unable to agree that copies of all documents accompanying the charge sheet must be furnished to the detenu as in the case

of an accused who is entitled for copies u/s 207 Code of Criminal Procedure What is required is that the crucial documents which can instil in the

mind of the detaining authority the requisite latter subjective satisfaction must be placed before such authority. We are unable to agree that all the

documents accompanying the charge sheet must be placed before the detaining authority. Similarly, we are unable to agree that none of the

documents accompanying the charge sheet need at all be placed before the detaining authority under any circumstances. We do not think it

necessary in this case to go deeper into the question whether Safiya (supra) lays down the law-correctly on this aspect. In an appropriate case the

court may have to consider that question in greater detail. We are unable to understand Safiya (supra) as laying down the proposition that if a final

report has already been filed, no other documents other than the final report in respect of the crime in question need be placed before the detaining

authority. We would only mention that all necessary documents to induce the subjective satisfaction must be placed before the detaining authority.

We will consider the question now whether such documents have been placed before the detaining authority. If such documents have been

furnished, we would not think it necessary to make any reference to a larger Bench for considering the question as to whether Safiya (supra) lays

down a proposition of law that no such documents need at all be placed before the detaining authority.

We shall now consider Sl. No. 2 i.e., Crime No. 491/09. In that crime at least all the relevant documents including the confession of the co-

accused Balagopal has been placed before the detaining authority. We have gone through the relevant documents relating to Crime Sl. No. 2

referred above. We have absolutely no hesitation to agree that the relevant documents referred above placed before the detaining authority are

sufficient to induce the latter subjective satisfaction in the mind of the detaining authority that preventive detention of the detenu is essential in order

to prevent him from committing anti-social activity. In these circumstances, though other documents which may have accompanied the final report,

if one is ultimately filed, were not placed before the detaining authority, we come to the conclusion that sufficient materials to induce the requisite

latter subjective satisfaction in-respect of crime Sl. No. 2 were placed before the detaining authority. In this view of the matter, we are unable to

agree that the subjective satisfaction entertained by the detaining authority on the basis of crime Sl. No. 2 referred above is vitiated or that the said

conclusion is liable to be set aside by invoking our powers of judicial review.

Even in so far as Crime Sl. No. 1 is concerned, we find that though all the documents which accompanied the charge sheet have not been

furnished to the detenu sufficient materials have been placed before the detaining authority to entertain the latter subjective satisfaction. We take the

view that the latter subjective satisfaction entertained by the detaining authority is also perfectly justified by the materials placed before the detaining

authority. We have already referred to the relevant materials which were available before the detaining authority and copies of which were

furnished to the detenu under Ext.P3.

It will not be inapposite straight away to refer to the contention of me learned D.G.P. that even if case Sl. No. 1 were to be excluded from

consideration [for the reason that copies of the confession statement of the co-accused and other relevant documents were not placed before the

detaining authority in respect of crime Sl. No. 1], the order of detention is perfectly justifiable on the basis of the Crime No. 491/09 (Sl. No. 2).

The learned D.G.P. contends that by the application of the principle u/s 7(4) even if Crime No. 382/09 were completely excluded, me latter

subjective satisfaction can be supported and can be justified by Crime Sl. No. 2 and the materials placed before the detaining authority in respect

of that crime. We find force in that contention also. Either Crime Sl. No. 1 or Crime Sl. No. 2 or both, according to us, are sufficient to instil the

requisite latter subjective satisfaction in the mind of the detaining authority and the challenge is found to be without substance on this aspect also.

No other contentions are raised under Ground No. 2. We do, in these circumstances, answer Ground No. 2 in favour of the respondents.

No other grounds are raised. We are satisfied, in these circumstances, that the impugned order of detention and the continued detention of the

detenu do not warrant any interference. The challenge fails.

The learned Counsel for the petitioner submits that it may be clarified that no observation in this judgment should, in any way, influence criminal

courts when they ultimately take up the cases against the detenu for trial. Needless to say, no observation in this judgment shall be taken into

consideration by criminal courts trying the offences alleged against the detenu. They should, in no way, be influenced by any observations made in

this judgment.

In the result, this Writ Petition is dismissed.