KAAPA; Fousiya Vs. State of Kerala [Kerala High Court, 25-06-2012]

Anti-Social Activities (Prevention) Act, 2007 (Kerala) (KAAPA)– S. 7(4) – An order of detention would not be invalid merely because one or more of the facts or circumstances stated in the grounds are vague, non-existent, irrelevant or invalid for any reason whatsoever, provided the other conditions in Sub Sec. (4) of Sec. 7 of KAAPA are satisfied – the mere fact that in one of the cases only the alias name of the detenu is mentioned, that by itself would not vitiate the order of detention.

2012 (3) KLT 232 : 2012 (3) KLJ 325 : 2012 (3) KHC 131

IN THE HIGH COURT OF KERALA AT ERNAKULAM

K.T. Sankaran & M.L. Joseph Francis, JJ.

W.P.(Crl.) No. 172 of 2012

Dated this the 25th day of June, 2012

For Petitioner: Latheesh Sebastian; For Respondent: T. Asaf Ali (Director General of Prosecution)

J U D G M E N T

K.T. Sankaran J.

1. Altlhaf @ Issac, the son of the petitioner, was detained in execution of the order of detention dated 30-01-2012 issued under

Sec. 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007

(hereinafter referred to as the KAAPA’), on his arrest on 04-02-2012. The order of detention is under challenge in the Writ Petition. (The order of detention is not produced along with the Writ Petition. The grounds of detention are produced as Ext.P1 in the Writ Petition. The prayer in the Writ Petition is to quash Ext.P1. However, after perusing the original records and taking into account the submissions made by the learned counsel for the petitioner, we are inclined to consider the validity of the order of detention).

2. There is no dispute that the approval of the order of detention under Sec. 3(3) and confirmation of the order of detention under Sec. 10(4) of the KAAPA were duly made within the time stipulated.

3. In the order of the detention, mention is made about five crimes in which the detenu was involved. The detaining authority was satisfied that the detenu is a “known-rowdy” as defined under Sec. 2(p)(iii) of the KAAPA and that if he remained at large, he would involve in anti-social activities with reference to the public peace and order, which would directly or indirectly cause harm, danger or alarm or a feeling of insecurity or cause threat to the public life and property. There is no dispute that the five crimes referred to in the order of detention are sufficient to attract the definition of “known-rowdy” under Sec. 2(P)(iii) of the KAAPA.

4. The learned counsel for the petitioner submitted that though in the grounds of detention reference is made to five crimes, the grounds of detention refers to four other crimes. Copies of documents in respect of those four crimes were not supplied to the detenu. It is contended that since the grounds of detention are at variance with the order of detention, it cannot be said that the subjective satisfaction arrived at by the detaining authority is valid and genuine. It is to be noted that this point raised by the learned counsel for the petitioner is not seen raised in the Writ Petition. Still, we were inclined to consider the point raised by the learned counsel for the petitioner only on the ground that the detenu is under preventive detention.

5. The order of detention refers to live cases. The details of those five crimes have been mentioned in the order of detention. The detailed particulars of those crimes and allegations made against the detenu, are stated in the grounds of detention. It is true that apart from the five crimes mentioned in the order of detention, the grounds of detention refer to four other crimes as well, at the end of the grounds of the detention. It is stated in the grounds that apart from the five crimes referred to in the order of detention, four other crimes were also registered against the detenu. The grounds of detention do not indicate that the subjective satisfaction of the detaining authority was arrived at on the basis of those four cases as well. The five cases referred to in the grounds of detention are sufficient for the purpose of attracting the definition of “known rowdy”. The detaining authority recorded its satisfaction that the detenu is a “known rowdy” within the meaning of Sec. 2(P)(iii) of the KAAPA. There is no indication in the grounds of detention (apart from making a passing reference in respect of the four cases) that those four cases were also taken into account by the detaining authority to arrive at the subjective satisfaction. In short, the subjective satisfaction of the detaining authority is not at all based on those four crimes about the registration of which mention is made in the grounds of detention. Those four crimes were referred to in the report submitted by the Sub Inspector of Police to the District Police Chief, routed through the proper channel Copy of that report submitted by the Sub Inspector of Police was also supplied to the detenu and he has acknowledged receipt of the same. No mention is made about those tour crimes in the representation submitted by the detenu. On the other hand, specific reference was made in the representation about the five crimes taken into account for terming him as “known rowdy” in the order of detention and the grounds of detention. In other words, the detenu was well aware that the order of detention is based only on the five crimes referred to therein and not at all based on the other four crimes of which mention is made in the grounds of detention.

6. Art. 22(5) of the Constitution of India provides that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. It is well settled that the communication of the grounds include the communication of the relevant documents as well. Sec. 7(2) of the KAAPA, is in tune with Art. 22(5) of the Constitution of India.