Sreedevi, W/O. Bhuvanendran vs State Of Kerala, Represented By ... on 1 July, 2011

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(Crl.).No. 179 of 2011(S)

1. SREEDEVI, W/O. BHUVANENDRAN,

... Petitioner

1. STATE OF KERALA, REPRESENTED BY THE

... Respondent

2. THE DISTRICT COLLECTOR & DISTRICT

3. DEPUTY COMMISSIONER OF POLICE, (L & O),

4. THE SUPERINTENDENT,

For Petitioner :SRI.SHAJIN S.HAMEED

For Respondent :GOVERNMENT PLEADER

The Hon'ble MR. Justice K.M.JOSEPH

The Hon'ble MR. Justice M.L.JOSEPH FRANCIS Dated :01/07/2011

O R D E R

K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- W.P.(Criminal) No.179 of 2011

----------------------------------------------- Dated 1st July, 2011.

J U D G M E N T

Joseph, J.

The petitioner calls in question the order passed under the Kerala Antisocial Activities (Prevention) Act, 2007 (hereinafter referred to as 'the Act'), by which the son of the petitioner has been detained.

2. We heard learned counsel for the petitioner and the learned Senior Government Pleader. Learned counsel for the petitioner addressed two arguments before us. Firstly, it is contended that there is delay in the matter of compliance with the mandate of Section 3(3) of the Act. Secondly, it is contended that contrary to the dictate of Section 7(2) of the Act, the complete records relating to 5 crimes, in which the detenu was allegedly involved, were not supplied, disabling the detenu from preferring an effective representation.

3. Per contra, learned Senior Government Pleader would point out that there is no non-compliance of Section 3(3) of the Act. The matter was reported on the same day, as the order of detention. Secondly, it is contended that there is no W.P.Crl.179/2011 2

definite pleading as to which are the records incompletely supplied to the detenu. Further more, reliance is placed on the decision reported in Safiya v. State of Kerala (2009(1) KLT 7) to contend that it is not the requirement of law that Section 161 statements pertaining to the case should also be supplied. He, in particular, gave emphasis to the words "as far as practicable" in Section 7(2) of the Act. He further contends that the ground of non-supply of documents is further rendered irrelevant, having regard to the fact that the petitioner does not have any case that the detention is flawed, for the reason that any of the clauses providing for exception in the definition of 'rowdy' is applicable.

4. As far as the question of non-compliance of Section 3(3) of the Act is concerned, it is an admitted case that the order is passed on 16.2.2011. The learned Government Pleader placed before us the file which tends to indicate that it is despatched on the same day. No doubt, the District Magistrate was stationed in Thiruvananthapuram.

5. Learned counsel for the petitioner on the other W.P.Crl.179/2011 3

hand, would point out the averments in the counter affidavit filed by the first respondent, wherein it is indicated that the Government had received an application from the mother of the detenu on 18.3.2011, before receiving the report from the District Magistrate. Learned Government Pleader would explain this by pointing out that the report which is referred to is the report sent after the detention, which took place on 18.3.2011. Further, learned Government Pleader would also invite our attention to the counter affidavit of the District Magistrate himself, wherein it is interalia stated as follows : "Ground A is devoid of merits. The detention order was passed by this forum, on 16.2.2011. The detention order has been forwarded to the Government and Director General of Police on 16.2.2011 itself. There is no delay in complying the provisions of Section 3(3) of KAA(P)A Act. Hence, it may kindly be seen that the expression 'forthwith' has been satisfied in its precise sense." Therein, a specific contention is taken that it is despatched on 16.2.2011 itself. No doubt, learned counsel for the petitioner would contend that duty of the District Magistrate extends to W.P.Crl.179/2011 4

seeing that it actually leaves the office and thus probabilises his case with reference to the pleadings in the counter affidavit of the first respondent. As we have already noted, the argument of the learned Government Pleader is that the report which is referred to therein relates to the report of execution of the order of detention and not the report contemplated in Section 3 (3) of the Act. In the facts and circumstances, the petitioner does not succeed in persuading us to hold that there is non- compliance of Section 3(3), vitiating the detention.

6. As far as the second contention is concerned, the contention of the petitioner is that the final reports supplied are incomplete. He would contend that Section 161 statements relating to the cases have not been supplied to the detenu. He posed the question how the Magistrate can arrive at a conclusion that the exemption clauses I to VI will not apply without seeing statements given by the witnesses. If the case was one which is covered by the exception, for instance, where the incident relating to close relatives or immediate neighbours, the statements given under Section 161 would have a great W.P.Crl.179/2011 5 bearing on the issue and the detention is bad for non- application of mind, it is submitted. Per contra, as noted, learned Government Pleader would rely on the decision reported in Safiya v. State of Kerala (2009(1) KLT 7). It was held therein, as follows :

"5. Therefore in circumstances where the detaining authority has furnished the police report under S.173(2)(i)(d) of the Code of Criminal Procedure, the competent officer need not furnish materials leading to the finding of the investigating officer to the detaining authority since the detaining authority cannot make a different assessment as to the sufficiency of the materials leading to the finding in the report. The satisfaction of the detaining authority need only be based on the final report and the further information furnished by the police officer not below the rank of the Superintendent of Police regarding the need for preventive detention under the Act. x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x All the above five cases are pending trial before the criminal court. All the alleged offences have been committed within the period of seven years. In all the above five cases the police reports have been perused by the detaining authority. The contention of the learned counsel for the petitioner is that the detaining authority was not furnished with materials leading to the final report of the police officer. As already held by us, once a final report on the finding of commission of the offence referred to under the Act is given to the detaining authority, no further materials are necessary. The only further information is as to whether, in the background also of such findings, a person is to be detained for the effective prevention and control of the anti- social activities."

W.P.Crl.179/2011 6

7. Learned counsel for the petitioner does not dispute that she does not have a case that the detenu comes under any of the categories mentioned in clauses 1 to 6 of the proviso to Section 2(p) of the Act. In the circumstances, having regard to the view taken by this court and on the facts of this case, we would think that there is no merit in the said contention, either. Accordingly, the Writ Petition fails and it is dismissed.

Sd/-

K.M.JOSEPH, JUDGE.

Sd/-

M.L.JOSEPH FRANCIS, JUDGE.

tgs

(True copy)

W.P.Crl.179/2011 7