Anti Social Activities; Rajesh R. Vs. State [Kerala High Court, 30-06-2016]

Anti Social Activities (Prevention) Act, 2007 (Kerala) – Section 2 (t) (i) or (ii) – The subjective satisfaction would be vitiated on account of non-supply of material facts with respect to the acquittal of the detenu to the detaining authority and non consideration of the same by the detaining authority.

# Detaining Authority


IN THE HIGH COURT OF KERALA AT ERNAKULAM

K.T.SANKARAN & A. HARIPRASAD, JJ.

W.P.(Crl) No.113 of 2016 (S)

Dated this the 30th day of June, 2016

PETITIONER

RAJESH. R.

BY ADV. SRI.O.V.MANIPRASAD

RESPONDENTS

1. STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM.

2. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE PALAKKAD.

3. THE DISTRICT POLICE CHIEF, PALAKKAD.

4. THE SUB INSPECTOR OF POLICE VALAYAR POLICE STATION, PALAKKAD DISTRICT.

5. THE SUPERINTENDENT OF CENTRAL PRISON KANNUR.

ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.K.I. ABDUL RASHEED GOVERNMENT PLEADER SRI.ABDUL KAREEM

JUDGMENT

K.T.Sankaran, J.

Ratheesh @ Chammanthi Ratheesh, the brother of the petitioner, was detained in execution of Ext.P1 order of detention dated 18.1.2016 issued by the District Magistrate, Palakkad. The order of detention was executed and the detenu was arrested on 20.1.2016. The petitioner is classified as a “known rowdy”. In the order of detention, four cases against the detenu were considered, out of which in two cases he was convicted and the other two cases are pending investigation. The order of detention as well as the continued detention of the detenu are under challenge in this Writ Petition.

2. The learned counsel for the petitioner submitted that the sponsoring authority submitted a report dated 21.11.2015 to the detaining authority. Subsequently, on the query made by the detaining authority, the sponsoring authority submitted Ext.P3 report dated 3.12.2015, Ext.P4 report dated 30.12.2015, Ext.P5 report dated 8.1.2016 and Ext.P6 report dated 17.1.2016. The main report dated 21.11.2015 was not mentioned in Ext.P1. There is no discussion with respect to the report dated 21.11.2015 in the order of detention. Therefore, the subjective satisfaction arrived at by the detaining authority is vitiated. The learned counsel for the petitioner also submitted that in respect of Crime No.352 of 2009 of Valayar Police Station, the detenu was found guilty for the offences under Sections 341, 323 and 324 read with Section 34 of the Indian Penal Code and he was sentenced to undergo imprisonment for a total period of one year and four months in C.C.No.453 of 2009 on the file of the Court of the Judicial Magistrate of the First Class – I, Palakkad. The learned counsel submitted that in appeal by the detenu as Crl.A.No.144 of 2013, on the file of the Court of Session, Palakkad, the appellate court allowed the appeal in part and the conviction was confined to the offences under Sections 341 and 323 read with Section 34 of the Indian Penal Code. Accordingly, the sentence of the appellant was reduced to imprisonment till the rising of the Court and to pay a fine of 500/-. On a perusal of Ext.P3 report dated 3.12.2015 submitted by the sponsoring authority (District Police Chief, Palakkad), it is seen that there is no mention of the acquittal of the detenu for the main offence as per Ext.P7 judgment. On the other hand, Ext.P3 report shows that the detenu was convicted and sentenced to undergo imprisonment for a total period of one year and four months.

3. Learned Public Prosecutor submitted that Ext.P1 order of detention refers to the reports dated 3.12.2015, 30.12.2015, 8.1.2016 and 17.1.2016. It was due to an omission on the part of the detaining authority that mention about the main report dated 21.11.2015 was not made. It is submitted that Ext.P1 order of detention clearly mentions about the crimes committed by the detenu, the details thereof as well as the reasons for detention. The learned Government Pleader submitted that the subjective satisfaction of the detaining authority is clear from Ext.P1 itself. He also submitted that copy of the report dated 21.11.2015 was served on the detenu and he had acknowledged the receipt of the same and, therefore, even if that report is not referred to in Ext.P1, the order of detention would not be vitiated. With reference to the submission made by the learned counsel for the petitioner that Ext.P7 judgment and the acquittal thereof were not considered by the detaining authority, the learned Government Pleader submitted that the judgment of the appellate court was not placed before the sponsoring authority as well as the detaining authority.

4. Ext.P1 order of detention does not refer to the report dated 21.11.2015 submitted by the sponsoring authority. Exts.P3, P4, P5 and P6 reports were submitted by the sponsoring authority on the basis of the clarifications sought for by the detaining authority. We have perused Exts.P3, P4, P5 and P6 reports. The details which are available in Ext.P1 as such are not available in Exts.P3 to P6 reports. Therefore, it cannot be said that the subjective satisfaction was arrived at by the detaining authority based on Exts.P3 to P6 reports. As stated above, the report dated 21.11.2015 was not referred to at all in the order of detention. The subjective satisfaction could be arrived at only after referring to the report dated 21.11.2015. Without that report, the subjective satisfaction would be incomplete. That a copy of the report dated 21.11.2015 was served on the detenu is not a substitute for the subjective satisfaction to be arrived at by the detaining authority. On this short ground, the order of detention is liable to be quashed.

5. Section 3(1) of the

# Kerala Anti Social Activities (Prevention) Act, 2007

(hereinafter referred to as ‘KAAPA’) mentions about the satisfaction of the detaining authority on information received from a police officer not below the rank of a Superintendent of Police, with regard to the activities of any ‘known goonda’ or ‘known rowdy’. Without such information, the detaining authority could not arrive at the subjective satisfaction to detain the person concerned. Such information is contained in the report dated 21.11.2015. That report is not referred to in Ext.P1 order of detention. Exts.P3 to P6 subsequent reports submitted by the sponsoring authority, by themselves do not supply the necessary materials to arrive at the subjective satisfaction by the detaining authority. Therefore, it cannot be held that non mention of the report dated 21.11.2015 was only an accidental slip or omission and still the subjective satisfaction is not vitiated.

6. In C.C.No.453 of 2009 on the file of the Court of the Judicial Magistrate of the First Class – I, Palakkad, the detenu was found guilty for the offences under Sections 341, 323 and 324 read with Section 34 of the Indian Penal Code and he was sentenced to undergo imprisonment for a total period of one year and four months under different heads. On appeal by the detenu as Crl.A.No.144 of 2013 on the file of the Court of Session, Palakkad, the conviction under Section 324 was set aside and the detenu was convicted for the offences under Sections 341 and 323 read with Section 34 IPC and he was sentenced to undergo imprisonment till the rising of the Court and to pay a fine of 500/-. In Ext.P3 (second report) submitted by the sponsoring authority, the factum of the conviction for the offence under Section 324 having been set aside and the acquittal of the detenu for that offence was not mentioned at all. The explanation made by the learned Government Pleader that the sponsoring authority was not aware of the disposal of the Criminal Appeal (Ext.P7) is not at all a ground to hold that the order of detention cannot be faulted on account of non-supply of material facts to the detaining authority. The question is whether the subjective satisfaction arrived at is vitiated. If the order of detention mentions that the person was convicted and sentenced, that itself is a serious ground attracting either sub-clause (i) or (ii) of Clause (t) of Section 2 of KAAPA. If that conviction is set aside in appeal, subclause (i) or (ii) of Clause (t) of Section 2 would vanish. Therefore, that should have been taken note of by the detaining authority before passing the order of detention. The subjective satisfaction would thus be vitiated on account of non-supply of material facts with respect to the acquittal of the detenu to the detaining authority and non consideration of the same by the detaining authority.

For the reasons mentioned above, we hold that Ext.P1 order of detention is vitiated and, accordingly, the same is quashed. The detenu shall be set at liberty forthwith unless his detention is required in connection with any other case. The gist of this judgment shall be communicated by the Registry to the Superintendent of Central Prison, Kannur, for compliance forthwith.

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