IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 451 of 2010(S)
1. SAID MOHAMMED.K., S/O.MOHAMMED,
1. STATE OF KERALA,
2. THE DISTRICT MAGISTRATE AND DISTRICT
3. THE DISTRICT SUPERINTENDENT OF POLICE,
4. THE SUB INSPECTOR OF POLICE,
5. THE SUPERINTENDENT OF CENTRAL PRISON,
6. M.KRISHNAN, SUB INSPECTOR OF POLICE
For Petitioner :SRI.O.V.MANIPRASAD
For Respondent :DIRECTOR GENERAL OF PROSECUTION The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
O R D E R
K.M. JOSEPH &
M.L. JOSEPH FRANCIS, JJ.
W.P.(CRL).NO. 451 OF 2010 S
Dated this the 18th January, 2011
K.M. Joseph, J.
The petitioner has approached this Court being aggrieved by the illegal detention of his son, Mohammad Afsal @ Afsal (hereinafter referred as the detenu) pursuant to the order of detention passed under the provisions of Kerala Anti - Social Activities (Prevention) Act, 2007 (hereinafter referred to as the Act). Accordingly he seeks a writ of habeas corpus directing the respondent to produce the person of the detenu and to set him at liberty forthwith and to declare that Ext.P1 order of detention is illegal and vitiated.
2. We heard the learned senior counsel for the petitioner, Sri. WP(CRL).NO.451/2010 S 2
O. V. Maniprasad and the learned Senior Government Pleader Sri. P. Raveendra Babu.
3. Learned counsel for the petitioner would address before us the following contentions:
In the first place he would submit that the order of detention is vitiated by non application of mind. He enlists the following facts in support of his contention:
The order of detention is passed on 13.8.2010. A case is registered under the provisions of the Act by the Sub Inspector of Police on 13.8.2010 at 12.06 hrs at Mannarkkad, Palakkad district. He sent a report proposing for taking action under the Act against the detenu on 13.8.2010. On the very same day the Superintendent of Police, Palakkad sent his report to the District Magistrate and again on the very same day, i.e., on 13.8.2010 the District Magistrate, Palakkad has passed the impugned order of detention. The learned counsel would submit that it is clear that the authority WP(CRL).NO.451/2010 S 3
concerned has not acted as expected and the non application of mind vitiated the proceedings. He further canvasses before us that the requirement of law is not satisfied in so far as this is a case where sponsoring authority namely, the Superintendent of Police, Palakkad, has himself prepared the grounds of detention as is clear from Ext.P3. The enclosures accompanying the report of the sponsoring authority would clearly show that he had prepared the grounds of detention and the District Magistrate has abdicated his duty and the duty was performed by an outside agency, namely, the Superintendent of Police. In other words, a valid detention under the Act contemplates that the detaining authority must apply his mind and come to the conclusion that the detention is warranted and crucial criterion for deciding the question is whether the detaining authority has framed the grounds for detention. This is a case where the grounds of detention was settled by some other authority and also having regard to the facts as mentioned above, the entire matter is rushed through in the space of a few hours of a WP(CRL).NO.451/2010 S 4
single day and the order of detention is issued in a hasty manner. This is the first contention.
4. Secondly, the learned counsel for the petitioner Sri. Maniprasad would point out that the documents were supplied in a language with which the detenue was unfamiliar. According to him, the detenu does not know to read English. Yet, the following documents were supplied to him in English:
(i) Ext.P3 report of the sponsoring authority. (ii) The preliminary report of the Sub Inspector of Police. (iii) The order of detention.
(iv) Ext.P6 which was the report of Superintendent of Police recommending action under the same Act on an earlier occasion against the detenu.
He would submit that there are certain other documents with respect to which he does not press similar argument.
5. Thirdly he would contend that the order of detention is vitiated by malafides. He would submit that the 6th respondent is imleaded in his personal capacity in this Court. According to him, WP(CRL).NO.451/2010 S 5
the crime was registered as crime No.797 of 2006 wherein the sixth respondent was involved. He would submit that it is at the instance of the very same Officer that the order of detention was passed.
6. Lastly, the learned counsel for the petitioner would contend that Article 22 of the Constitution, as also Section 7 of the Act create a right in favour of the detenu to represent against the detention both before the Advisory Board and also before the Government. He would submit that representation was indeed given by the petitioner to the Advisory Board. According to him, the Advisory Board has not considered his representation. He would further contend that there is also duty on the part of the Advisory board to communicate the decision taken on the representation. He would submit that in this case the decision on the representation was not communicated. He relies on Secs.7(2), 9 and 10 of the Act, in support of his contention that there is a right to the detenu to represent and a duty on the part of the Advisory WP(CRL).NO.451/2010 S 6
Board to really consider the representation and also a duty to communicate its decision.
7. Per contra, the learned Senior Government Pleader, Shri P. Raveendra Babu would submit that there was no undue haste or non-application of mind. He would point out that in fact the background of the case may not be overlooked. According to him, the detenu was involved in as many as nine cases earlier. He would contend that when there was an attempt made to detain him under the Act pursuant to Ext.P6 proposal, the detenu absconded and went abroad. He would point out that in the circumstances of the case and in particular, in view of the fact that the detenu came to be involved in Crime No.531/2010 which took place on 2.8.2010, there is no merit in the contention of the petitioner that the detention order is the result of undue haste and non-application of mind. He would further submit that there is nothing wrong if the grounds of detention were prepared by the Superintendent of WP(CRL).NO.451/2010 S 7
Police. All that Section 3 of the Act insists is that there must be material forthcoming from the designated Statutory Authority on the basis of which it is open to the detaining authority to form the requisite opinion. No doubt, both the objective and subjective criteria must be satisfied. In this case, he would submit that the detenu going by the cases which have been referred in the order of detention, can objectively be clearly classified as a known rowdy under Section 2(p) of the Act. He would submit that, in such circumstances, there can be no merit in the contention of the petitioner that the detenu was not liable to be detained. As far as subjective satisfaction for the need to detain is concerned, he would submit that, that is beyond the pale of judicial review as held in many decisions of this Court. The mere fact that the Police Officers and the Detaining Authority acted with promptitude in the facts of this particular case, which otherwise warrants the detention of the detanu should not persuade this Court to interfere with the otherwise valid order of detention, he contends. He would submit WP(CRL).NO.451/2010 S 8
that the detaining authority has also taken note of the fact that though the detenu was in custody in connection with Crime No.531/2010, there was a real possibility of the detenu securing bail and in fact, he secured bail and he came to be arrested on 17.8.2010 after he was released on bail.
8. As far as the contention based on the non-supply of the relevant documents in a language with which the detenu is familiar which, in this case is Malayalam, he would submit as follows: He would submit that the grounds of detention was supplied to the detenu and the grounds of detention was couched in the Malayalam language. When the grounds of detention have been supplied to the detenu, he would pose the question as to how the detenu could be prejudiced by the non-supply of the Report of the Superintendent of Police under Section 3, the preliminary report of the Sub Inspector of Police, Ext.P6 Report of the Superintendent of Police recommending detention on an earlier occasion, and the order of detention. He would point out that essentially whatever is WP(CRL).NO.451/2010 S 9
contained in the order of detention is also contained in the grounds of detention. In the same way, he would point out that substance of whatever is contained in the grounds of detention is also contained in the preliminary report of the Sub Inspector of Police and also in the proposal of the Superintendent of Police under Section 3. He would also point out that the order of detention was in fact read over to the detenu in Malayalam. He would also rely on certain decisions to which we will make a reference later on.
9. As far as malafides is concerned, it is submitted that no case has been made out by the petitioner for establishing malafides. He would point out that the action of the sixth respondent was occasioned only by his involvement in the first case and it is too much to contend that the order of detention has been passed at the instigation of the sixth respondent. He would submit that a plea of malafides must be established with full particulars, in the matter of pleading and also by proving the same. He would point out that there is no such case made out.
WP(CRL).NO.451/2010 S 10
10. As far as the question of non-consideration of the representation by the Advisory Board is concerned, he would address the following submissions before us: Undoubtedly, under Section 7(2) of the Act, there is a duty on the part of the detaining authority to alert the detenu of the right to make a representation to the Advisory Board and to the Government. He would then point out that under Section 9, a reference has to be made to the Advisory Board in every case where a detention order is made within three weeks. Further, the procedure to be adopted by the Advisory Board in the Act is contained in Section 10. Under Section 10, when the matter comes up before the Advisory Board, necessarily, the Advisory Board must consider any representation which has been made along with the reference. The Advisory Board must form an opinion. The opinion may be either that no case is made out for detention or the opinion may be that further detention is warranted. He would submit that detention extending beyond three months alone WP(CRL).NO.451/2010 S 11
requires the opinion of the Advisory Board which is a contention which he seeks to buttress with reference to Article 22 of the Constitution and also the provisions of the Act. More importantly, he would point out that the representation given by the detenu in this case to the Advisory Board was indeed considered and he made available to us the files to show that the representation was indeed considered. He would point out that apart from the opinion, the other portions of the Report of the Advisory Board are confidential and he would point out that the consideration of the representation by the Advisory Board and the consideration of the representation by the Government are substantially different. He would point out that representation to the Advisory Board is only contemplated at the time when the reference comes up. In other words, a representation could not be made earlier or after. In this connection, he relies on the decision of this Court in Mary Kuriakose v. State of Kerala (2011 (1) KLT 167). He would submit that in a case of an order passed under Section 3 of the Act, WP(CRL).NO.451/2010 S 12
unlike an order under Section 15, the powers of the Advisory Board are limited. Under Section 15 of the Act, it is open to the Advisory Board to modify or annul an order passed therein. No such power exists with the Advisory Board in respect of a detention order passed under Section 3. He would also submit that there is no need for any separate communication of the order by the Advisory Board. Of course, when the matter comes up in a judicial proceedings, it is always open to the Court to consider the question as to whether there was a genuine consideration of the representation by the Advisory Board.
11. We are of the view that the writ petitioner is entitled to succeed on the first two grounds taken by the petitioner and hence we do not feel it necessary to decide the question of malafides or the point that the representation of the detenu was not considered by the Advisory Board.
12. The law in question is a law relating to preventive detention. It is a jurisdiction of suspicion. Subject to the person WP(CRL).NO.451/2010 S 13
being objectively classified either as a known goonda or known rowdy on the basis of materials which is placed before the detaining authority, there is a discretionary power with the detaining authority to order the detention of a person. Needless to say, every order of detention involves the deprivation of a person's liberty. In such circumstances, it is of the highest importance that the statutory authorities who are charged with the duty to pass an order of detention that they must exercise the power hedged in with the duty to apply their mind to the material which comes up before them. The detaining authority must not only be satisfied that objectively the detenu can be treated as a known goonda or known rowdy, but he must further be satisfied that there is a genuine need to detain the person. The following are the Crimes with offences, date of occurrence, date of registration and date of charge sheet: WP(CRL).NO.451/2010 S 14 Sl.No Crime No.with Offences Date of Date of Date of Charge Sheet Police Station Occurrence Registratio n of Crime
Crime No.503/2003 U/ss.341, 19.10.03 20.10.03 of Mannarkkad 323,324,
304 R/w 34
1 07/11/03 Crime No.49/2006 of U/ss 120 (b), 20.2.06 20.02.06at 26.10.09 Melattur Police 367, 307, 326, Melattoor Station.Transferred 506 (ii), R/w Police to Perinthalmanna 34 of IPC & Station. Police Station & Section 3,
Registered as Crime R/w 25 (i) (a) 19.3.06 at No.198/2006 of Arms Act. Perinthalma nna Police
2 Station Crime No.810/2006 U/s 143, 147, 23.10.06 21.07.08 of Mannarkkad 148, 447, 452,
Police Station 341, 323, 324,
329, 294 (b),
506 (ii) R/w
3 34 IPC 02/11/06 Crime No.399/2007 U/ss.452, 294 21.05.07 22.05.07 30.05.07 Mannarkkad Police (b), 506 (ii),
Station 324, 427, R/w
4 34 IPC
Crime No.531/2010 U/s 452, 341, 06.08.10 Charged U/s 452, 506 (i) IPC Mannarkkad Police 323, 506 (i)
5 Station IPC 02/08/10 02/08/10 The first of the crimes is of the year 2003. The second crime is alleged to have been committed on 20.2.2006. The third crime is alleged to have taken place on 23.10.2006. The fourth crime allegedly took place on 21.5.2007. Thereafter, there is a gap and the last crime is alleged to have taken place on 2.8.2010. Petitioner has a case that the detenu was abroad from 8.5.2008 and he came WP(CRL).NO.451/2010 S 15
back on 13.3.2010. The petitioner has a case that the last crime was engineered at the instance of the sixth respondent. In this connection, he took us through the first information statement given by the Manager of the bar where the alleged offence was committed by the detenu. He would further submit that actually the detenu was to leave India and to go back on 2.9.2010 and it was just on the eve of his departure that the order of detention was passed at the behest of the sixth respondent.
13. The following facts cannot be disputed:
The Sub Inspector of Police, Mannarkkad has sent Ext.P4 report on 13.8.2010. He has registered a crime at 12.06 PM under the Act. The matter went to the Superintendent of Police who is located at Palakkad. There is a distance of nearly forty kilometres between Mannarkkad and Palakkad. According to the version of the respondents, after the Sub Inspector of Police recommended action under the Act vide Ext.P4, the Superintendent of Police is supposed to have considered the matter on the very same day, WP(CRL).NO.451/2010 S 16
namely 13.8.2010 and decided to recommend for detention vide Ext.P3. What is more, on the very same day, the detaining authority is also alleged to have considered the matter and passed Ext.P1 order of detention on 13.8.2010. We must, in this case, consider the argument of the learned counsel for the petitioner that in the Counter Affidavit filed by the detaining authority, the detaining authority did not specifically say that the order of detention came to be passed beyond the normal working hours on 13.8.2010. No doubt, he has stated in the Counter Affidavit that depending on the emergent situation, officers work beyond normal working hours. The need for a genuine consideration at the hands of the detaining authority and even at the hands of the Superintendent of Police who makes a report, is absolutely an unavoidable legal requirement to sustain the prized freedom of liberty guaranteed under Article 21 of the Constitution. In fact, the Statute has vested the power with the State Government or any designated authority to pass an order of detention under Section 3. WP(CRL).NO.451/2010 S 17
The power is vested with a high ranking officer, namely the District Magistrate. He has to act on the basis of the information provided by the designated authority, the Superintendent of Police. The proposal usually starts with the Officer of a rank of Sub Inspector of Police. We would think that in the facts of this case, there is justification for the petitioner to impugn the order of detention on the ground of non-application of mind. We must remind ourselves that the entire process started with the report of the Sub Inspector of Police (Ext.P4) at about 12.06 hours on 13.8.2010. The matter had to reach the Superintendent of Police. He has to apply his mind. We must, in this context, consider that the stand of the Government usually is that the consideration at the hands of the Superintendent of Police as to whether a case is made out for recommending detention itself takes time. But, in this case, the Superintendent of Police has acted with speed which we find a little inexplicable. At any rate, when the matter came up before the detaining authority, certainly the detaining authority WP(CRL).NO.451/2010 S 18
must consider the issue independently. Voluminous material in the form of various documents will be before the District Magistrate in every case of proposed detention. The material relates to the crimes which are alleged in the context of the person being a known rowdy or known goonda. The law entrusts the unenviable task of deciding to deprive the liberty of a citizen with the Magistrate with the assurance that he will genuinely consider the material before him and that he will form the requisite opinion as in all cases of statutory functions with bonafides and acting reasonably. We are of the view that in the facts of this case, such a consideration does not appear to have been made by the authority.
14. We also see that there is merit in the contention of the petitioner that the document, namely Ext.P3 report of the Superintendent of Police, in particular, was not made available in Malayalam. There is no case for the respondents that the detenu was familiar with the English language. Their only defence that is WP(CRL).NO.451/2010 S 19
sought to be put up is that the detenu was supplied with the grounds of detention in Malayalam and there is no need to supply the other documents also in Malayalam. This question has engaged the attention of this Court in a few cases and we shall refer to the same. In Najmunnisa v. State of Kerala (2010 (3) KLT 334), a Bench of this Court, inter alia, held as follows: "17. In this case also, the relevant documents were all fully explained to the detenu in a language known to him at the time of arrest. But those documents were not furnished to him in a language which he could read and understand. The Supreme Court reiterated the position that it was not enough if the relevant documents were explained to the detenu in a language known to him. It was held to be imperative that the document must be made available to him in a language he can understand.
18. It is unnecessary to advert to more
precedents. The position appears to be well settled that however earnestly the documents may have been read over and explained to the detenu in a language WP(CRL).NO.451/2010 S 20
known to him, it is imperative that he must be left with the document in a language and script which he can read and understand if he is literate." Still further, a Full Bench also has considered the question in Bose v. Secretary to Government (2010 (2) KLT 325). The Court disapproved the view taken in Sathi v. State of Kerala & Ors. (W.P.(CRL).No.201 of 2009) and held as follows: "21. Admittedly, Malayalam translation of some of the documents like the report of the sponsoring authority as well as the report of his subordinate Officer had not been furnished to the detenu in Sathi's case. The contention raised by the detenu was that he could not understand the contentions of those documents, since they were in English and therefore there was clear breach of the mandate contained under Art.22(5) of the Constitution and also the statutory obligation prescribed under S.7(2) of the Act. The Division Bench proceeded to hold that S.7(3) of the Act would take care of such situations and safeguard and protect the rights of the detenu.
23. The Division Bench held that since the WP(CRL).NO.451/2010 S 21
legislature has imposed a statutory duty on the Superintendent of the Jail to afford the detenu reasonable opportunity to consult a lawyer apart from reasonable assistance to make a representation against the order of detention, the detenu cannot be heard to say, in the absence of specific assertions to the contrary, that he did not know the grounds of detention or that he was disabled from making an effective representation to the Government, since the relevant documents were in English. According to the Division Bench, such a contention would be available only to a detenu who is "illiterate" since "he can only depend on someone else to read and explain the order, grounds and documents to him. If they are furnished to him and explained to him there can be no further grievance on the ground that they were in a language not known to him."
24. We are unable to agree with the above proposition of law laid down by the Division Bench. No doubt, S.7(3) obligates the Superintendent of Jail to afford "reasonable opportunity" to the detenu to consult a lawyer and "reasonable assistance in making a representation against the detention order to WP(CRL).NO.451/2010 S 22
the Government or to the Advisory Board". But, the short question is whether a detenu should be left at the mercy of a Jail Superintendent in his quest for liberty. On a plain reading of the provisions contained in S.7 (3), it is the Superintendent of the Jail to decide what is "reasonable opportunity" to be afforded to the detenu to consult a lawyer. Yet again, the said Officer is given the authority to decide what is "reasonable assistance" that a detenu can be given to make a representation against the order of detention to the Government or to the Advisory Board. To hold that copies/translations of all the relevant documents need not be furnished to the detenu, since his rights are well protected under S. 7(3) of the Act will, in our view, make the right guaranteed to a detenu to make an effective representation to the Government or the Advisory Board, an illusory or meaningless exercise.
26. The Detaining Authority cannot refuse to give copies of the relevant documents or the translations thereof in vernacular to the detenu concerned, on the plea that the detenu's interest will be taken care of by the Superintendent of the Jail who is statutorily obliged to afford the detenu reasonable WP(CRL).NO.451/2010 S 23
opportunity to consult a lawyer and reasonable assistance in making a representation against the detention order before the Government. However, we hasten to add that the question whether any prejudice has been caused to the detenu because of the non- supply of a document will entirely depend on the facts and circumstances of each case."
15. Countering this, the learned Senior Government Pleader would rely on an unreported Judgment of this Court in W.P.(Crl). No.399/2010 and point out that the documents which were not supplied in Malayalam to the detenu in this case were of such a nature that the law is not violated. He also relied on the Judgment of the Apex Court in Devji Vallabhai Tandel v. The Administrator, Goa, Daman and Diu (AIR 1982 SC 1029) and J. Abdul Hakeem v. State of Tamil Nadu ((2005) 7 SCC 70). In J. Abdul Hakeem v. State of Tamil Nadu ((2005) 7 SCC 70), the Apex Court essentially held that it is not the non-supply of each and every document which is fatal and it is for the detenu to establish that non-supply of copies of the documents had impaired the detenu's right to make an WP(CRL).NO.451/2010 S 24
effective and purposeful representation. It was further held that the substance of the matter is whether the detenu's right to make a representation against the order of detention is hampered by the non-supply of a particular document and in this context, reference was made to the earlier Judgment of the Court in Radhakrishnan Prabhakaran v. State of Tamil Nadu (2000 (9) SCC 170) wherein it was held that what is important is that the copies of the documents relied on by the detaining authority for reaching the satisfaction that preventive detention of the detenu is necessary, is to be supplied to the detenu. There was a duty on the part of the detaining authority having regard to Section 7(2) of the Act to supply the detenu with a Malayalam version of Ext.P3 (Report of the Sponsoring Authority) which is the very statutory foundation for the detaining authority to even commence proceedings under Section 3 culminating in the passing of an order of detention thereunder. When the detenu is supplied with the proposal to detain him by the Superintendent of Police on the basis of which WP(CRL).NO.451/2010 S 25
the District Magistrate has acted in a language with which he is unfamiliar and when he is undergoing incarceration by way of order of detention, he will be completely in the dark as to what is the recommendation of the statutory authority on the basis of which the Magistrate has formed the opinion to detain him. This is indeed a vital piece of information. It may be true that substantially the grounds of detention are contained in the recommendation. But, the detenu would not know what is contained in the recommendation for the simple reason that he is unfamiliar with the language. We must also bear in mind the declaration of the law made by the Full Bench and which we have already adverted to. The view taken by this Court that though the law enjoins upon the authority to make available legal assistance for preparing a representation, the defect in not supplying documents in Malayalam is not cured, would apply in the facts of this case. There also, we notice that the Full Bench had noticed WP(CRL).NO.451/2010 S 26
that the recommendation of the Superintendent of Police was not supplied in Malayalam. In fact, the learned counsel for the petitioner would impress upon us that even in the facts of the case before the Full Bench, the grounds of detention was supplied in Malayalam and the order of detention was also in Malayalam in that case. But, in this case, the recommendation of the Superintendent of Police and also the order of detention are in English. We would think that we can certainly rest our decision on the second point about non-supply of documents in Malayalam vitiating the order of detention with reference to the recommendation of the Superintendent of Police alone. Certainly, the recommendation of the Superintendent of Police should have been made available in Malayalam and this has seriously impaired the right of the detenu. Accordingly, the petitioner is entitled to succeed on the said point also.
We allow the Writ Petition and declare that Ext.P1 order of detention is illegal and direct that the detenu shall be set at liberty WP(CRL).NO.451/2010 S 27
forthwith, unless he is wanted in any other case. The Registry shall communicate this decision to the Superintendent of Central Prison, Viyyur forthwith. Sd/=
M.L. JOSEPH FRANCIS,
PS to Judge