Abdul Razack A.A. Aged 29 Years vs State Of Kerala

1. STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT HOME DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695 001.

2. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE THRISSUR-680 001.

3. THE DISTRICT POLICE CHIEF THRISSUR CITY, THRISSUR DISTRICT-680 545.

4. THE CIRCLE INSPECTOR OF POLICE PERAMANGALAM, PERAMANGALAM P.O. THRISSUR DISTRICT-680 545.

5. THE SUPERINTENDENT OF CENTRAL PRISON KANNUR, PALLIKUNNU P.O., KANNUR-670 004.

R1,R 2 BY GOVERNMENT PLEADER SMT.KOCHUMOL KODUVATH R3 BY DIRECTOR GENERAL OF PROSECUTION

THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 13-07-2015, THE COURT ON 30.7.2015 DELIVERED THE FOLLOWING: WP(Crl.).No. 195 of 2015 (S) -----------------------------

APPENDIX

PETITIONER(S)' EXHIBITS -------------------------------

P1 : COPY OF THE DETENTION ORDER DTD.9.3.2015 OF THE 2ND RESPONDENT.

P2 : COPY OF THE GROUNDS OF DETENTION DTD.9.3.2015.

P3 : COPY OF THE REPORT DTD.2.3.2015, OF THE 3RD RESPONDENT.

P4 : COPY OF THE REPORT DTD.4.3.2015 OF THE 3RD RESPONDENT.

P5 : COPY OF THE REPORT DTD.9.3.2015 OF THE 3RD RESPONDENT.

P6 : COPY OF THE ORDER DTD.18.2.2015 IN CRL.MC NO.272/2015 OF COURT OF SESSION, THRISSUR.

P7 : COPY OF THE ORDER DTD.7.3.2015 IN CRL.MC NO.487/2015 OF THE COURT OF SESSION, THRISSUR.

P8 : COPY OF THE REPORT APPEARED IN MATHRUBHUMI DAILY DTD.31.1.2015.

P9 : COPY OF THE NEWS ITEM PUBLISHED IN MATHRUBHUMI DAILY DTD.24.2.2015.

P10 : COPY OF THE NEWS ITEMS APPEARED IN MATHRUBHUMI DAILY DTD.6.3.2015.

P11 : COPY OF THE NEWS ITEM PUBLISHED IN MATHRUBHUMI DAILY ON 7.3.2015.

P12 : COPY OF THE NEWS ITEM PUBLISHED IN MATHRUBHUMI DAILY ON 9.3.2015.

P13 : COPY OF THE NEWS PAPER REPORTS APPEARED IN MATHRUBHUMI DAILY ON 4.3.2015.

P14 : COPY OF THE NEWS PAPER REPORTS APPEARED IN MATHRUBHUMI DAILY ON 10.3.2015.

P15 : COPY OF THE FIR IN CRIME NO.553/2013 OF PERAMANGALAM POLICE STATION.

P16 : COPY OF THE CHARGE SHEET IN FIR NO.553/2013 OF PERAMANGALAM POLICE STATION.

P17 : COPY OF THE FIR AND THE FI STATEMENT IN CRIME NO.950/2013 OF THRISSUR EAST POLICE STATION. WP(Crl.).No. 195 of 2015 (S)

-2-

P18 : COPY OF THE ORDER DTD.8.10.2013 IN CRL.MC NO.4474/2013 BY THIS HON'BLE COURT.

P19 : COPY OF THE FIR AND FI STATEMENT IN CRIME NO.1254/2013 OF THRISSUR EAST POLICE STATION.

P20 : COPY OF THE REPRESENTATION DTD.27.3.2015 FORWARDED TO THE 1ST RESPONDENT THROUGH THE 5TH RESPONDENT.

P21 : COPY OF THE REPRESENTATION DTD.27.3.2015 TO THE ADVISORY BOARD CONSTITUTED UNDER THE ACT THROUGH THE 5TH RESPONDENT.

P22 : COPY OF THE ORDER GO(RT)NO.984/2015/HOME DTD.23.4.2015.

P23 : TRUE COPY OF THE PETITION FILED BY THE DETENU BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KUNNAMKULAM (COMMITTAL COURT)

P24 : TRUE COPY OF THE PETITION FILED BEFORE THE COURT OF SESSION, THRISSUR

P25 : TRUE COPIES OF THE WOUND CERTIFICATE AND TREATMENT RECORDS OF THE DETENUE.

/TRUE COPY/

P.S TO JUDGE

V.K.MOHANAN & RAJA VIJAYARAGHAVAN.V, JJ - - - - - - - - - - - - - - - - - - - - W.P(Crl.).195 of 2015 - - - - - - - - - - - - - - - - Dated 30th July, 2015 - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT

"CR"

Raja Vijayaraghavan.J.

1. This petition is filed under Art.226 of the

Constitution of India, by the petitioner, praying for

issuance of a writ of habeas corpus to direct release of his

brother, Mohammed Nisham, son of A.B.Abdul Khader

(late) (hereinafter referred to as "the detenu"), who is

detained as per order dated 9.3.2015 passed by the 2nd

respondent u/s 3 of the Kerala Anti Social Activities

(Prevention) Act, 2007 (hereinafter referred to as "Act 34

of 2007").

2. The impugned detention order which is produced

as Ext.P1 was passed by the 2nd respondent on the basis of

three reports which are produced as Ext.P3, P4 and P5

dated 2.3.2015, 4.3.2015 and 9.3.2015 respectively, WP(Crl).195/15 2

submitted by the 3rd respondent to the 2nd respondent u/s 3

(1) of the Act 34 of 2007. It is revealed from Ext.P3 that a

report dated 28.2.2015 was submitted by the Circle

Inspector of Police, Peramangalam, the subordinate Officer

of the 3rd respondent, requesting for initiation of action

against the detenu under the Act. When Ext.P1 order dated

9.3.2015 was passed by the 2nd respondent, the detenu was

in judicial custody in Crime No.173 of 2015 of

Peramangalam police station as he was arrested in the said

case on 29.1.2015. Ext.P1 detention order was served on

the detenu while he was in judicial custody. The order of

approval was passed on 19.3.2015 u/s 3(3) of the Act and

Ext.P23 order of confirmation was passed on 23.4.2015.

3. Initiation of proceedings against the detenu is on

the basis that he is a "known rowdy", as defined under S.

2(p) of the Act 34 of 2007. As per Ext.P1 detention order,

the sponsoring and detaining authority placed reliance on

seven crimes committed by the petitioner. The details are

as under:-

WP(Crl).195/15 3

Sl.N Crime No. Offences Date of Date of Current o. With police Occurrence Charge Status of station sheet the case.

Crime U/ss. 506, 24.07.2014 15.12.201 Pending No.254 of 504, 323, 4 trial 2014 of 324, 354, Pulikeshi 376, 420 Nagar police IPC & 66 station (A) of IT 1 Act Crime U/s 506(i) 8.1.2015 & 28.2.2015 Pending No.147 of IPC & 118 9.1.2015 trial 2015 of (d) KP Act Thrissur East police 2 station Crime U/s 452, 28.6.2012 28.7.2012 Quashed No.677 of 323, 324, by the 2012 of 326, 308, High Viyyur 506(ii) r/w Court police 34 IPC 3 station Crime U/s 354(i) 20.9.2013 Quashed No.950 of (ii) IPC & by the 2013 of 66(A) & (B) High Thrissur of IT Act Court East police 4 station 06/05/13 Crime U/s 338 30.4.2012 Pleaded No.245 of IPC guilty 2012 of Viyyur police 5 station 04/02/12 Crime U/s 353, 13.6.2013 21.6.2013 Pending No.1254 of 354, 506 trial 2013 of (ii), 294(b), Thrissur 279 IPC & East police 185 MV Act 6 station Crime 29.1.2015 Pending No.173 of U/s 341, investig 2015 of 294(b), ation Peramangal 323, 324, am police 326 506(i) 7 station 302 IPC WP(Crl).195/15 4

Crime U/s 279, 21.12.2014 Pending No.94/2015 323, 506, Investig of Cubbon 307 IPC ation Park, police station, 8 Bangalore Crime U/s 23JJ Pending No.688 of (Care & trial 2013 of Protection Peramangal of am police Children) station Act r/w 180 9 MV Act 10/04/13

4. Out of the above, cases numbered as Sl. Nos. 1

to 7 were considered for arriving at the subjective

satisfaction by the 2nd respondent . The crimes numbered

as Sl No's 8 and 9 were not reckoned for arriving at the

objective satisfaction .

5. We have heard the learned Senior counsel

appearing for the petitioner Sri.B. Kumar, as instructed by

Sri.O.V.Maniprasad , for the petitioner and the learned

Director General of Prosecution, Sri.Asaf Ali , for the

respondents.

6. The learned Senior counsel, at the outset itself, WP(Crl).195/15 5

submitted that the petitioner is not challenging his

classification as a "known rowdy". Apparently, the crimes

which were pending as against the petitioner on the date

of issuance of Ext.P1 were sufficient enough to bring the

petitioner within the sweep of the expression "known

rowdy' as defined in S 2 (p) of Act 34 of 2007.

7. The learned Senior counsel, attacked the

impugned order and characterized it as unconstitutional

and unsustainable under law on the following grounds:

(i). Irrespective of the fact whether the acts

committed by the detenu will bring him within the scope of

the term "rowdy" or "known rowdy" , the detaining

authority was bound to subjectively satisfy itself as to

whether the acts alleged of the detenu do threaten the

public order to pass a valid order of detention.

(ii). As the detaining authority has failed to

satisfy itself that the acts of the detenu has affected, public

order, Public health or public safety, the issuance of the

order under S. 3 of the Act stands vitiated.

WP(Crl).195/15 6

(iii). The various crimes alleged to have been

committed by the petitioner are directed against

individuals and those crimes, which include a solitary case

of murder, cannot be held sufficient to hold that the even

tempo of the society was disturbed and consequently the

public order.

(iv). The ordinary law of land was sufficient to

deal with the cases in which the detenu was involved and

therefore the order of detention curtailing the freedom of

the detenu should not have been issued.

(v). Non application of mind of the detaining

authority is writ large as the detention order was passed

when the detenu was in Jail with no prospects of being

released in the near future.

(vi). Ext.P1 detention order is vitiated as

materials on record would reveal that the same was passed

on the dictates of the higher ups and authorities in the

official hierarchy and thus the detaining authority has

abdicated her responsibility in passing the order.

(vii). Necessary and vital materials have been WP(Crl).195/15 7

suppressed by the sponsoring authority before the

detaining authority, which materials, if supplied would

have influenced the mind of the authority to refrain from

issuing Exhibit P1.

(viii). The failure of the detaining authority to

inform the detenu that he has a right of representation

before the detaining authority , is a constitutional

requirement flowing from Article 22(5) of the Constitution

of India , and failure to comply with the same will vitiate

the order.

8. The learned Director General of Prosecution would

support the order of detention and argued in terms of the

counter affidavits filed. It was submitted that the detention

was passed strictly in accordance with the provisions of

Act 34 of 2007 and the Constitution of India after careful

scrutiny of the reports of the sponsoring authority and

thoughtful consideration of the entire aspects of the case.

Much emphasis was placed on Crime No 173 of 2015 of

the Peramangalam Police Station , involving offence under WP(Crl).195/15 8 S. 302 of the IPC , and it was submitted that the same has

shocked the collective conscience of the community. It was

submitted that the requisite satisfaction drawing the

inference that the detenu be detained immediately, was

arrived for safeguarding public safety, peace and

tranquillity of the society. It was assiduously argued , that

the order of detention is a precautionary measure and is

based on a reasonable prognosis of the future behaviour of

a person based on his past conduct in the light of

surroundings instances. It was contended that the detenu,

as an antisocial element, with immense wealth, was

creating havoc in the community. It was a dangerous

precedent, according to him, and the intention of the

legislature behind enacting Act 34 of 2007 has to be

construed in such a manner that it does not endanger

social defence or the defence of the community while

safeguarding the individual liberty of the citizens.

9. It was pointed out that as early as on 24.6.2013, a

rowdy history sheet was opened as against the detenu in WP(Crl).195/15 9

the Peramangalam police station, and his activities were

closely monitored by the police. As a preventive measure,

security proceedings u/s 107 of the Code of Criminal

Procedure also was initiated against the detenu as crime

No.1008 of 2013 of Viyur police station and bail bond was

executed on 12.9.2013 as M.C.No.545 of 2013 of the Sub

Divisional Magistrate Court, Thrissur. Due to his money

and might, the petitioner has been able to stifle the

complainants in several cases and escape from

punishment. His acts are a threat to the society and law

and order, it is submitted. Even thereafter, he continued to

involve in a series of crimes creating serious problems to

public order unmindful of the legal action initiated against

him by the Sub Divisional Magistrate. Thus, the sponsoring

authority was justified in submitting the proposal for the

preventive detention of the order as intended under the

Act. All the legal submissions made by the learned Senior

counsel were ably countered by the learned Director

General of Prosecution and the contentions and precedents

relied on by the respective counsels will be adverted when WP(Crl).195/15 10

the respective grounds are analyzed .

Ground No (i) to (iv).

10. According to the learned Senior counsel, the

only crime of grave nature allegedly committed by the

detenu is Crime No 173 of 2015 of the Peramangalam

Police station which relates to the murder of a security

personnel of Shoba City, the residential apartment where

the detenu resided with his family. According to the

learned Senior Counsel, the said incident through

gruesome, was nothing but an "ordinary murder". It was

asserted that the mere fact that a person has been

classified as a known rowdy will not enable the detaining

authority to pass an order of detention, unless the said

authority is satisfied that the antisocial activity committed

by the detenu has affected public order. According to the

learned Senior counsel, if the crimes committed by the

detenu are ordinary crimes, he can very well be proceeded

against under the ordinary law. To advance the above

contention, the learned Senior Counsel has adverted to the WP(Crl).195/15 11

Statement of objects and reasons which prompted the

Kerala Legislature to pass the Act 34 of 2007 and

submitted that it was for the purpose of curtailing

organized criminal activity which had become a threat to

both the economic and physical security of the State and

Citizen. The initiation of proceedings is to be limited to

organised criminal activity, submits the learned Senior

counsel.

11. The Counsel further contends that the definition of

'antisocial activity' in Section 2(a) and the definition of

rowdy in Section 2(t) must assume importance and

significance in this context and it was submitted that a true

interpretation of the provision would exclude mere

infractions of law and order.

12. The learned Counsel for the petitioner points out that

Act 34 of 2007 has been enacted by the Kerala Legislature

in exercise of its legislative competence as per Entry 3 of

List III of Schedule 7 of the Constitution of India, and WP(Crl).195/15 12

contented that the Act will fall foul if it travels out of the

limitations prescribed. According to the learned counsel,

preventive detention can be justified only if the acts are

prejudicial to the security of a State, the maintenance of

public order, or the maintenance of supplies and services

essential to the community.

13. Expatiating further, the learned Senior counsel

submitted that 'Maintenance of public order' is the only

ground on which the legislative competence to order

detention of the detenu can be justified. It is pointed out by

the learned Senior counsel by taking us exhaustively

through the crimes committed by the detenu that none of

these cases reveal any organized criminal activity or of

affecting public order as such .

14. The learned Senior counsel referring to the Crime

No. 254 of 2014 of Pulikeshi Police Station registered on

24.7.14 for offenses punishable under S. 506, 504, 323,

324, 354, 376, 420 IPC and 66 (A) of IT Act, submitted WP(Crl).195/15 13

that the said crime was registered at the instance of a lady

by name 'Karen Alex' with whom the detenu was having a

relationship and was residing with him for the past several

years. It was submitted that the attempt of the said woman

was to extract money from the detenu. It was also pointed

out that a crime had been registered against the de facto

complainant in the said case and non-bailable warrants

where pending as against her. According to the learned

senior counsel no threat to public order was made out

insofar as this crime is concerned.

15. Referring to Crime No 147 of 2015, registered on

8.1.2015 for offence punishable under S.506(1) of the IPC

and S. 118(d) of the Police Act, 2011, it was submitted

that the said case relates to a dispute in connection with a

money transaction between the de facto complainant and

the detenu and by no stretch of imagination could have

been a foundation for initiating any proceedings under Act

34 of 2007. Though the allegations in the final report

reveal that the de facto complainant had sustained a WP(Crl).195/15 14

fracture to the nasal bone, it was merely an infraction of

law and order. It was further submitted that the charge

sheet was laid in the said crime after the arrest of the

detenu.

16. Referring to crime No. 677 of 2012 of Viyyur Police

Station registered on 28.6.2012 for offences punishable

under S. 452, 323, 324, 326, 506 (ii) r/w S. 34 of the IPC,

it was submitted that the ordinary law of the land was

enough to deal with the offender and did not warrant the

passing of exhibit P1 order on its basis. It was submitted

that proceedings as against the petitioner was quashed by

this Court in a proceeding u/s 482 of the Code of Criminal

Procedure accepting the terms of settlement entered into

between the complainant and the accused.

17. Referring to Crime No. 950 of 2013 of Thrissur East

police station, registered on 6. 5. 2013 under S. 354 (i)(ii)

IPC and S. 66 (A) & (B) of the IT Act, it is submitted that

the brother of the detenu, (the petitioner in this writ WP(Crl).195/15 15

petition) had set the law in motion when the detenu had

posted some remarks in a social media website and

pursuant to the filing of the charge sheet the said case was

also quashed by exercising the inherent powers under S.

482 by this Court.

18. Referring to Crime No. 245 of 2012 of the Viyyur

Police Station registered on 4.2.2012, for offence

punishable under S. 338 of the IPC, it was submitted that

the crime was registered when the advertising hoarding of

one of the establishments of the detenu had fallen on the

body of a motorcyclist. It was submitted that the detenu

had pleaded guilty before the trial Court as it was a

technical offence involving no mens rea.

19. Referring to Crime No. 1254 of 2013 of Thrissur East

police station registered on 13.6. 2013, under sections

354, 353, 506 (ii), 294 (b), 279 IPC and section 185 of the

Motor Vehicles Act, it was submitted that it was a case

which was registered by a lady Sub Inspector WP(Crl).195/15 16

discharging traffic duty, who claimed that she was

deterred from performing her official duty and was

assaulted by the detenu. It was submitted that the said

crime ought not have been considered for any purpose as it

was a complaint initiated by a police officer and falling

within the statutory inhibition in section 2 (P) (iii).

20. Referring to crime No. 173 of 2015 of Peramangalam

police station registered on 29.1.2015 u/s 341, 294(b), 323,

324, 326, 506(1) and S.302 of the IPC, it was submitted

that this was an incident which occurred at 3 am, outside

his residential apartment at Thrissur, involving a security

staff. It was contended that the injured had died after 19

days of treatment and the detenu had also sustained

serious injuries. It was submitted that there were no

eyewitnesses to the incident and as it had occurred in the

dead of night and it could not have effected the even

tempo of the society. According to the learned senior

counsel, this was just another "ordinary murder" which

could have been dealt with the ordinary laws of the land. It WP(Crl).195/15 17

was also submitted by the learned Senior counsel that the

sponsoring authority had suppressed vital materials before

the detaining authority with a view to make the attack on

the victim appear ferocious. According to the learned

Senior counsel, this was not a very uncommon occurrence

and the police authorities cannot utilize this incident to

clip the wings of the detenu.

21. In essence, the submission of the learned Senior

counsel is that the said crimes were mere infractions of

law and order and by no stretch of imagination could it be

held that the same had the reach and magnitude to disturb

public order.

22. Our attention was also drawn to a slew of binding

precedents on this point to highlight the fact that there

was no justification for holding that the activities of the

petitioner would affect public order and consequently to

lead to passing of Exhibit P1 order. It is the submission of

the learned Senior counsel that the crimes against the WP(Crl).195/15 18

detenu are all insignificant and are routine crimes on

individuals with no impact on the even tempo of the society

and none of these crimes ought to have been taken into

consideration for entertaining the latter subjective

satisfaction and to arrive at a decision as to whether the

detenu deserves to be detained to prevent him from

indulging in anti-social activities.

23. On the other hand, the learned Director General of

prosecution took us through the allegations in the

individual crimes and submitted that the crimes committed

by the detenu are coming under Chapters XVI (offences

affecting human body), XVII (offences against property)

and XXII (criminal intimidation) of the IPC and falling

under section 2 (t) of Act 34 of 2007 which are necessary

for classifying the detenu as a 'known rowdy' under

section 2 (p) of the Act. It was submitted that the offences

committed by the detenu are not stray acts affecting law

and order but they have created panic in the locality.

According to the learned Director General of Prosecution, WP(Crl).195/15 19

the act committed by the detenu range from brutally

injuring persons by trespassing into their residential

homes, assaulting police women in public while they are on

duty, deterring public servants from performing their duty,

which finally culminated in the murder of a security guard

of his own apartment building in the presence of other

security men. It was pointed out that the incident involving

the murder had commenced from the public road and the

allegations would reveal that he had used the expensive

car owned by him to mow down the security personnel in

the presence of several others in a blatant display of

money power and might. It was submitted by the learned

Director General of prosecution that it was for desisting

such persons from committing such blatant acts of

rowdyism that Act 34 of 2007 was enacted by the Kerala

legislature in exercise of the powers conferred on them.

Inviting our attention to the definition of "anti social

activity" in 2(a) of Act 34 of 2007, it was pointed out that,

even an act endangering the safety of the individuals is

brought within the sweep of the Act. Reliance was placed WP(Crl).195/15 20

on Vijayamma V State of Kerala and Others (2014 (4)

KLT 563) to bring home the proposition that the

termination of proceedings under S. 482 of the Code,

should not be allowed to torpedo any order of preventive

detention and such acts of the detenu should be viewed as

an interference with the administration of justice .Reliance

was also placed on Shruthi V State of Kerala and

others ( 2009 (4) KLT 893 ), Ashraf V Inspector

General of Police Kochi Range 2014 (3) KLT 772 ,

and Shaji V State of Kerala and others ( 2014 Crl L J

2029 ), to convince us that this Court has held in

appropriate cases that though the acts of the detenu are

primarily against individuals, its reach was such as to be a

threat to public order and not limited to infraction of law

and order.

24. In order to enlighten us that the acts committed by

the petitioner will not tantamount to affecting the public

order and tranquillity or the even tempo of the society, a

multitude of binding precedents were cited by the learned WP(Crl).195/15 21

Senior counsel appearing for the petitioner. The learned

DGP on the other hand, produced precedents to convince

us that the potentiality of the acts committed by the detenu

were of such a nature so as to disturb the public order and

cannot be regarded as transgressions on individuals. We

deem it fit to glance at the wealth of precedents on this

point, which are relied on by the learned Senior Counsel

for the petitioner and also the learned Director General of

Prosecution to have a clear understanding of the

principles.

25. In Ram Manohar Lohiya (Dr.) v. State of Bihar

a n d a n o t h e r (AIR 1966 SC 740) = ( 1966

Crl.L.J 608), it has been laid down by the Apex Court as

follows:

"It will thus appear that just as `public order' in the rulings of this Court (earlier cited)

was said to comprehend disorders of less

gravity than those affecting `security of State',

`law and order' also comprehends disorders of

less gravity than those affecting `public order'.

One has to imagine three concentric circles.

Law and order represents the largest circle WP(Crl).195/15 22

within which is the next circle representing

public order and the smallest circle represents

security of State. It is then easy to see that an

act may affect law and order but not public

order just as an act may affect public order but

not security of the State. But using the

expression `maintenance of law and order' the

District Magistrate was widening his own field

of action and was adding a clause to the

Defence of India Rules."

26. In Arun Ghosh vs. State of W.B,(1970 (1) SCC

98), it has been held thus :

"3...."Public order was said to embrace

more of the community than law and order.

Public order is the even tempo of the life of

the community taking the country as a whole

or even a specified locality. Disturbance of

public order is to be distinguished from

acts directed against individuals which do

not disturb the society to the extent of

causing a general disturbance of public

tranquillity. It is the degree of disturbance

and its effect upon the life of the community

in a locality which determines whether the

disturbance amounts only to a breach of law

and order. Take for instance, a man stabs

another. People may be shocked and even WP(Crl).195/15 23

disturbed, but the life of the community

keeps moving at an even tempo, however

much one may dislike the act. Take another

case of a town where there is communal

tension. A man stabs a member of the other

community. This is an act of a very different

sort. Its implications are deeper and it

affects the even tempo of life and public

order is jeopardised because the

repercussions of the act embrace large

sections of the community and incite them to

make further breaches of the law and

order and to subvert the public order. An

act by itself is not determinant of its own

gravity. In its quality it may not differ from

another but in its potentiality it may be very

different. Take the case of assault on girls. A

guest at a hotel may kiss or make advances

to half a dozen chamber maids. He may annoy

them and also the management but he does

not cause disturbance of public order. He

may even have a fracas with the friends of

one of the girls but even then it would be a

case of breach of law and order only. Take

another case of a man who molests women in

lonely places. As a result of his activities

girls going to colleges and schools are in

constant danger and fear. Women going for

their ordinary business are afraid of being

waylaid and assaulted. The activity of this

man in its essential quality is not different WP(Crl).195/15 24

from the act of the other man but in its

potentiality and in its affect upon the public

tranquillity there is a vast difference. The

act of the man who molests the girls in lonely

places causes a disturbance in the even

tempo of living which is the first requirement

of public order. He disturbs the society and

the community. His act makes all the women

apprehensive of their honour and he can be

said to be causing disturbance of public

order and not merely committing individual

actions which may be taken note of by the

criminal prosecution agencies. It means

therefore that the question whether a man

has only committed a breach of law and

order or has acted in a manner likely to

cause a disturbance of the public order is

a question of degree and the extent of the

reach of the act upon the society."

27. In T.Devaki vs. Government of Tamil Nadu and

others, (1990 (2) SCC 456), it was held as follows:-

[18]. The question which falls for consideration is

whether single incident of murderous assault by

the detenu and his associates on the Minister at

the Seminar held at Dry Chilly Merchants'

Association Kalai Arangam Hall was prejudicial

to the maintenance of public order. Any WP(Crl).195/15 25

disorderly behaviour of a person in the public

or commission of a criminal offence is bound to

some extent affect the peace prevailing in the

locality and it may also affect law and order

problem but the same need not affect

maintenance of public order. There is basic

difference between law and order' and 'public

order', this aspect has been considered by this

Court in a number of decisions, see: Dr. Ram

Manohar Lohia v. State of Bihar, [1966] 1

SCR 709; Pushkar Mukherjee & Ors. v. The

State of West Bengal, [1969] 2 SCR 635 and

Shymal Chakraborty v. Commissioner of Police

Calcutta & Anr., [1970] 1 SCR 762. In these

cases, it was emphasised that an act disturbing

public order is directed against individuals

which does not disturb the society to the extent

of causing a general disturbance of public peace

and tranquillity. It is the degree of disturbance

and its effect upon the life of the community

in the locality which determines the nature and

character of breach of public order. In Arun

Ghosh v. State of West Bengal, [1970] 3 SCR

288 the Court held that the question whether a

man has only committed a breach of law and

order, or has acted in a manner likely to cause

disturbance of the public order, is a question of

degree and the extent of the reach of the act

upon the society. This view was reiterated in

Nagendra Nath Mondal v. State of West Bengal,

[1972] 1 SCC 498; Sudhir Kumar Saha v.

WP(Crl).195/15 26

Commissioner of Police, Calcutta, [1970] 3 SCR

360; S.K. Kedar v. State of West Bengal, [1972] 3

SCC 816; Kanu Biswas v. State of West Bengal,

[1972] 3 SCC 831; Kishori Mohan v. State of

West Bengal, [1972] 3 SCC 845 and Amiya

Kumar Karmakar v. State of West Bengal,

[1972] 2 SCC 672.

[19].........It is alleged that the attempted

murderous assault on Thiru Durai Murugan

created scare and a feeling of insecurity in the

minds of the persons present in the hall and

the detenu's action interrupted the "proceedings

of the Seminar for a while" (emphasis supplied).

This shows that the detenu's activity disturbed

the proceedings of the Seminar for a while but

the Seminar appears to have continued later

on. The incident did not and could not affect

public peace and tranquillity nor it had potential

to create a sense of alarm and insecurity in

the locality. How could a single murderous

assault on the Minister concerned at the Seminar

could prejudicially affect the even tempo of the

life of the community? No doubt, in paragraph 4

of the grounds the detaining authority has

stated that by committing this grave offence in

public, in broad day light, the detenu created

a sense of alarm, scare and a feeling of

insecurity in the minds of the public of the area

and there by acted in a manner prejudicial to the

maintenance of public order which affected

even tempo of life of the community. Repetition WP(Crl).195/15 27

of these words in the ground are not sufficient

to inject the requisite degree of quality and

potentiality in the incident in question. A solitary

assault on one individual can hardly be said to

disturb public peace or place public order in

jeopardy so much as to bring the case within

the purview of the Act. Such a solitary incident

can only raise a law and order problem and no

more. Moreover, there is no material on record

to show that the reach and potentiality of the

aforesaid incident was so great as to disturb

the normal life of the community in the

locality or it disturbed general peace and

tranquillity. In the absence of such material it is

not possible to hold that the incident at the

seminar was prejudicial to the maintenance of

public order.

28. A Constitution Bench of the Apex Court in Madhu

Limaye v. Ved Murti, [1970] 3 SCC 739] has laid

down as follows :

[21]. In dealing with the phrase 'maintenance

of public order' in the context of preventive

detention, we confined the expression in the

relevant Act to what was included in the

second circle and left out that which was in

the largest circle. But that consideration need

not always apply because small local WP(Crl).195/15 28

disturbances of the even tempo of life, may in

a sense be said to affect 'public order' in a

different sense, namely, in the sense of a state

of law-abidingness vis-a-vis the safety of

others. In our judgment the expression 'in the

interest of public order' in the Constitution is

capable of taking within itself not only those

acts which disturb the security of the State or

are within ordre publique as described but

also certain acts which disturb public

tranquillity or are breaches of the peace. It is

not necessary to give to the expression a

narrow meaning because, as has been

observed, the expression 'in the interest of

public order' is very wide. Whatever may be

said of 'maintenance of public order' in the

context of special laws entailing detention of

persons without a trial on the pure subjective

determination of the Executive cannot be said

in other circumstances. In the former case

this Court confined the meaning to graver

episodes not involving cases of law and order

which are not disturbances of public

tranquillity but of ordre publique.

29. In Manu Bhusan Roy Prodhan v. State of West

Bengal & Ors., [1973] 3 SCC 663] it was held as

follows:

WP(Crl).195/15 29

8........... This kind of a solitary

assault on one individual, which may well

be equated with an ordinary murder which

is not an uncommon occurrence, can hardly

be said to disturb public peace or place

public order in jeopardy, so as to bring the

case within the purview of the Act. It can

only raise a law and order problem and no

more and its impact on the society as a

whole cannot be considered to be so

extensive, widespread and forceful as to

disturb the normal life of the community,

thereby rudely shaking the balanced tempo

of the orderly life of the general public.

30. In Dipak Bose v. State of W.B. (1973) 4 SCC 43),

a three-Judge Bench of the Apex Court has held as

follows :

[4].....Every assault in a public place like a public road and terminating in the death

of a victim is likely to cause horror and even

panic and terror in those who are the

spectators. But that does not mean that all

of such incidents do necessarily cause

disturbance or dislocation of the community

life of the localities in which they are

committed. There is nothing in the two

incidents set out in the grounds in the present WP(Crl).195/15 30

case to suggest that either of them was of that

kind and gravity which would jeopardise the

maintenance of public order. No doubt bombs

were said to have been carried by those who

are alleged to have committed the two acts

stated in the grounds. Possibly that was done

to terrify the respective victims and prevent

them from offering resistance. But it is not

alleged in the grounds that they were exploded

to cause terror in the locality so that those

living there would be prevented from

following their usual avocations of life. The two

incidents alleged against the petitioner, thus,

pertained to specific individuals, and therefore,

related to and fell within the area of law

and order. In respect of such acts the drastic

provisions of the Act are not contemplated to

be resorted to and the ordinary provisions of

our penal laws would be sufficient to cope

with them.

31. In Subhash Bhandari v. District Magistrate,

Lucknow, ( [1987] 4 SCC, 685), i t w as h e l d a s

f o l l o w s :

"A solitary act of omission or commission

can be taken into consideration for being

subjectively satisfied, by the detaining

authority to pass an order of detention if the

reach, effect and potentiality of the act is such WP(Crl).195/15 31

that it disturbs public tranquility by creating

terror and panic in the society or a

considerable number of the people in a

specified locality where the act is alleged to

have been committed. Thus it is the degree

and extent of the reach of the act upon the

society which is vital for considering the

question whether a man has committed only a

breach of law and order or has acted in a

manner likely to cause disturbance to public

order."

32. In Commissioner of Police v. C.Anita (2004) 7

SCC 467) , it was observed by the Apex Court as follows:

"7. ........ The crucial issue is whether the

activities of the detenu were prejudicial to

public order. While the expression 'law and

order' is wider in scope inasmuch as

contravention of law always affects order,

'public order', has a narrower ambit, and public

order could be affected by only such

contravention which affects the community or

the public at large. Public order is the even

tempo of life of the community taking the

country as a whole or even a specified locality.

The distinction between the areas of 'law and

order' and 'public order' is one of the degree

and extent of the reach of the act in question on WP(Crl).195/15 32

society. It is the potentiality of the act to disturb

the even tempo of life of the community which

makes it prejudicial to the maintenance of the

public order. If a contravention in its effect is

confined only to a few individuals directly

involved as distinct from a wide spectrum of the

public, it could raise problem of law and order

only. It is the length, magnitude and intensity of

the terror wave unleashed by a particular

eruption of disorder that helps to distinguish it

as an act affecting 'public order' from that

concerning 'law and order'. The question to ask

is:'Does it lead to disturbance of the current life

of the community so as to amount to a

disturbance of the public order or does it

affect merely an individual leaving the

tranquillity of the society undisturbed?

33. In Saravana Babu K.K. v. State of Tamil Nadu

and Another (2008 (9) SCC 89), the Apex Court

discussed the case law dealing with the question of "law

and order" and "public order" right from the case of

Romesh Thapar v. State of Madras (1950 SCR 594) to

R.Kalavathi v. State of Tamil Nadu (2006 (6) SCC 14)

and held that the crystallised legal position is that the case

is affecting the public order are those which have great WP(Crl).195/15 33

potentiality to disturb peace and tranquillity of a particular

locality or in the words of Hidayatullah, J. disturb the

even tempo of the life of the community of that specified

locality.

34. In Shaji v State of Kerala and Others ( 2014 Crl

L J 2029 ), a Division Bench of this Court after analysing

numerous Apex Court Decisions had held as follows :

[11]. Principles laid down in the aforesaid

judgment shows that "public order" is distinct

and different from "law and order" and the

Apex Court has consciously observed that

"public order" may well be paraphrased in the

context of legislations such as the Act as

"public tranquillity". Therefore, any act, which

adversely affects the public tranquillity of an

area is an act affecting public order of the

area. Insofar as this case is concerned, the

facts narrated in Ext. P1 order itself would

show that various crimes have been allegedly

committed by the detenu, in public places and

in day light and as a result, the people in the

locality are terrorized and that because of

these acts, tranquillity in the area is affected.

This certainly shows that the acts allegedly WP(Crl).195/15 34

committed by the detenu, irrespective of its

gravity, are those, which disturbed the even

tempo of life of the community, which

undoubtedly are acts prejudicial to the

maintenance of the public order, the

maintenance of which, is essential for the

orderly life in the society. Therefore, we are

unable to agree with the learned counsel for

the petitioner that the offences alleged against

the detenu are not those which threatened the

public order to invite an order of preventive

detention.

35. The wealth of legal precedents cited by either sides

gives a clear enunciation of the law on the subject. As

noticed above, it follows that it is the degree and extent of

reach of the objectionable activity which is vital for

considering the question whether a man has committed

only a breach of `law and order' or has acted in a manner

likely to cause disturbance to `public order'. Even a

single act which has the propensity of effecting the even

tempo of life and public tranquillity would be sufficient for

ordering detention. It is the potentiality of the act to

disturb the even tempo of life of the community which

makes it prejudicial to the maintenance of `public order'. WP(Crl).195/15 35

In other words, an order of detention under the Act

would be valid if the activities of a detenu affect `public

order' but would not be so where the same affect only the

maintenance of `law and order'.

36. The Court exercising judicial review is not to consider

objectively as to how imminent is the likelihood of the

detenu, indulging in activities prejudicial to the

maintenance of the public order. It also has to be borne in

mind that the subjective satisfaction entertained by the

detaining authority is not justiciable. This Court cannot sit

in appeal in proceedings under Article 226 of the

Constitution of India over the decisions taken by the

detaining authority on the basis of the materials placed

before the detaining authority as to whether the

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. No roving

enquiry or investigation can be carried out by the Court to WP(Crl).195/15 36

examine the sufficiency of the material available with the

detaining authority for the purpose of arriving at the

subjective satisfaction. If the entertainment of the latter

subjective satisfaction is vitiated by mala fides or total

absence of materials or by materials that are to be legally

eschewed, certainly the powers of judicial review vested

in this Court can be invoked and the order of detention on

the basis of such subjective satisfaction can be set aside.

But if there are materials before the detaining authority, it

is not open to this Court to sit in appeal over the subjective

satisfaction entertained by the detaining authority.

37. We have thoughtfully considered the contention of

the learned Director General of Prosecution, that the

objectionable activities of the detenu have to be judged in

the light of the socio economic and cultural perspective of

the civil society and it has to be ascertained as to whether

the totality of the circumstances have had any prejudicial

effect on the society as a whole. It was also submitted by

the learned Director General of Prosecution that if the WP(Crl).195/15 37

detaining authority after appraisal of the facts and

circumstances come to the conclusion that the activities of

the detenu are prejudicial to the maintenance of public

order and not merely prejudicial to the law and order, this

Court will not be justified in interfering with the said

satisfaction. It was also submitted that a 100 percent

literate society of Kerala can ill afford the highly

objectionable activities of a person such as the detenu,

whose anti social activities affecting the public order,

continued unabated, in spite of the law enforcement

machinery exhausting all the ordinary remedies available

under law.

38. Maintaining respect for law is one of the most

coveted principles and the State has to strive to discourage

inveterate criminals who have no regard to public order. It

can be seen that the activities of the detenu was sought to

be prevented initially by including him in the rowdy history

sheet on 24.6.2013. Later, as a preventive measure

proceedings under S.107 Cr.P.C was also initiated against WP(Crl).195/15 38

him. Even thereafter he continued to involve himself in a

series of crimes creating serious problems to public order.

Crime 677 of 2012 committed on 28.6.2012 was a case in

which the detenu had trespassed into the house of one

Shamsudeen and assaulted him resulting in a fracture of

nasal bone. After the charge sheet was laid, the detenu has

settled the matter with the de facto complainant and got

the proceedings quashed. There is also an instance of the

petitioner assaulting a lady police inspector on duty in a

public place. Peramangalam police station crime No.173

of 2015 registered for offence inter alia u/s 302 of the IPC

on 29.1.2015 is a case wherein the detenu had brutally

manhandled a security guard owing to his failure to open

the gate of the apartment premises where the detenu was

residing with his family. The incident commenced from the

public road and the records reveal that the security staff

was brutally manhandled in the presence of several other

security personnel.It is from prior events showing

tendencies or inclination of a man that an inference is

drawn whether he is likely in the future to act in a manner WP(Crl).195/15 39

prejudicial to the maintenance of public order. Of course,

such prejudicial conduct or antecedent history should

ordinarily be proximate in point of time and should have a

rational connection with the conclusion that the detention

of the person is necessary. The District Magistrate has

expressed unequivocally that he was satisfied on the

materials placed before him, that the detention of the

detenu was necessary with a view to preventing him from

acting in any manner prejudicial to the maintenance of

public order. The District Magistrate has also recorded

that he passed the order after considering all the relevant

factors and with due circumspection as he found that his

activities had become unmanageable and were creating

serious public disorder. It is trite that the order of

detention is a precautionary measure and is based on a

reasonable prognosis of the future behaviour of the person

based on his past conduct and judged in the light of the

circumstances prevailing on the date of passing of the

detention order.

WP(Crl).195/15 40

39. The compulsions of the primordial need to maintain

order in society, without which enjoyment of all rights,

including the right of personal liberty would lose all their

meanings, are the true justifications for the laws of

preventive detention. This jurisdiction has been described

as a "jurisdiction of suspicion", and the compulsions to

preserve the values of freedom of a democratic society and

social order sometimes merit the curtailment of the

individual liberty. (See Ayya alias Ayub v. State of U.P.

and Anr: (1989(Cri.L.J) 991 ).

40. In Naresh Kumar Goyal v. Union of India, 2005

(8) SCC 276, the Apex Court has held ;

"It is trite law that an order of detention is not

a curative or reformative or punitive action, but a

preventive action, avowed object of which being to

prevent the anti social and subversive elements from

imperilling the welfare of the country or the security

of the nation or from disturbing the public

tranquillity or from indulging in smuggling activities

or from engaging in illicit traffic in narcotic drugs

and psychotropic substances etc. Preventive

detention is devised to afford protection to society. WP(Crl).195/15 41

The authorities on the subject have consistently

taken the view that preventive detention is devised

to afford protection to society. The object is not to

punish a man for having done something but to

intercept before he does it, and to prevent him from

doing so. It, therefore, becomes imperative on the

part of the detaining authority as well as the

executing authority to be very vigilant and keep

their eyes skinned but not to turn a blind eye in

securing the detenue and executing the detention

order because any indifferent attitude on the part of

the detaining authority or executing authority will

defeat the very purpose of preventive action and

turn the detention order as a dead letter and

frustrate the entire proceedings. Inordinate delay,

for which no adequate explanation is furnished, led

to the assumption that the live and proximate link

between the grounds of detention and the purpose of

detention is snapped".

41. In view of the above discussion, we hold that the

there were ample materials before the detaining authority

to conclude, on the basis of materials produced, that the

acts committed by the detenu are prejudicial to public

order and that that was every likelihood and potentiality

of the detenu in committing offences, disregarding the

actions taken by the state to curtail him. The satisfaction WP(Crl).195/15 42

arrived at by the detaining authority that the reach of the

acts of the detenu, its degree, extent and magnitude has

caused disturbance to the even tempo of life of the

community so as to amount to disturbance of the public

order cannot be doubted or faulted. We hold that the

challenge raised by the detenu that his acts merely amount

to violation of law and order cannot be sustained.

Consequently the contention that the crimes committed by

the detenu has not disturbed the even tempo of the society

and thus to disturb the public order has to fail. Ground No

(i) to (iv) are found against the detenu.

Ground No. (v).

42. The next contention raised by the learned counsel is

that Ext.P1 order of detention was passed by the 2nd

respondent on 9.3.2015 on which day, the detenu was

under judicial custody. He was arrested on 29.1.2015 in

connection with Crime No.173 of 2015 of Peramangalam

police station. According to the learned Senior counsel, WP(Crl).195/15 43

the detention order is vitiated as the detaining authority

has not satisfied herself as to whether there was any

possibility of the detenu being enlarged on bail. Reliance

is placed on Ext.P6 and P7 bail orders as per which the

Court of Session, Thrissur had dismissed the application

for bail filed by the detenu. According to the learned

Senior counsel, a perusal of Exts.P6 and P7 would reveal

that the detenu was not likely to be enlarged on bail in the

near future. There were no material before the detaining

authority to conclude that the detenu even contemplated

approaching the higher Court for bail. There were no

materials or facts available with the detaining authority

showing the possibility of immediate release of the

detenu. It was contended that the satisfaction arrived at

by the detaining authority that there was every possibility

of the detenu being released on bail is without any basis

and material and hence unsustainable. The learned Senior

counsel relied on the decision of the Apex Court, in Rekha

v. State of Tamilnadu (2011 (5) SCC 244), wherein, it

has been held that, where a detention order is passed WP(Crl).195/15 44

against a person already in custody, there should be a real

possibility of his release on bail, if he has moved a bail

application, and if it is pending. It follows, logically, that if

no bail application is pending, then there is no likelihood of

the person in custody being released on bail, and hence,

the detention order will be illegal. However, there can be

an exception to this rule, that is, where a co-accused,

whose case stands on the same footing, had been granted

bail. In such cases, the Detaining Authority can reasonably

conclude that there is a likelihood of the detenu being

released on bail, even though no bail application was

pending, since, most courts, normally, grant bail on this

ground. However, details of such alleged similar cases

must be given, without which, the bald statement of the

authority cannot be believed.

43. The learned Director General of Prosecution

controverted the said contention raised by the learned

Senior counsel and submitted that a perusal of Exts.P6

and P7 orders would reveal that the learned Sessions WP(Crl).195/15 45

Judge had taken into account that the investigation was at

a nascent stage and the learned Sessions Judge had

rejected the bail application on that ground. It was pointed

out that in Ext.P7 the learned Sessions Judge had

categorised the stage of investigation as infancy stage and

in Ext.P8 it was pointed out that there was chances for the

detenu to interfere in the investigation if he was released

at that stage. It was contended that the orders dismissing

the bail application of the detenu were deliberated while

passing the detention order and the detaining authority

had applied her mind to all the facts and circumstances

before passing the order. It was also contended that the

orders passed by the learned Sessions Judge furnished

relevant material to suggest that the detenu had the

propensity and potentiality to again indulge in prejudicial

activities in case he was enlarged on bail. According to the

learned Director General of Prosecution there was material

before the detaining authority to come to the conclusion

that there was every likelihood for the detenu to get

himself released on bail and that in that event, he would WP(Crl).195/15 46

again indulge in anti social activities. It was pointed out

that the settled law is that the detaining authority was

only required to be aware that the detenu was in custody

though no bail application was in fact filed and there was

likelihood of the detenu being released on bail. The

learned Director General of Prosecution has relied on

Abdul Sathar Ibrahim Malik V Union of India ( AIR

1981 SC 2261 ) to substantiate his contentions .

44. A perusal of Ext.P1 order would reveal that the

detaining authority was aware of the fact that the detenu

had preferred application for bail before the Sessions

Court, Thrissur. Reference is also made to the filing and

dismissal of Crl.M.C.No.272 of 2015 and Crl.M.C.487 of

2015 which were dismissed on 18.2.2015 and 7.3.2015

respectively. The Crime No. 173 of 2015 was registered on

29.1.2015. It is stated in Ext.P1 order that the detenu is

financially very well off and there is every likelihood of the

detenu approaching the High Court or the Apex Court for

the purpose of his release on bail. It is also stated that they WP(Crl).195/15 47

have received reliable information about the preparations

made by the detenu to approach the higher Courts. It is

also stated in Ext.P1 that there is every chance that the

detenu may be enlarged on bail from the Sessions Court

itself or from the higher Courts and that if released, the

detenu who is from the topmost strata of the society is

likely to influence witnesses and tamper with the evidence.

It is also stated in Ext.P1 order, with reference to the

penchant of the accused in settling crimes by using money

power, that there is every likelihood of the detenu

threatening the eye witnesses himself or through hired

goondas. The possibility of the detenu involving in other

crimes is also made mention of in Ext.P1 order based on

the antecedents of the detenu.

45. When the detaining authority has considered the

possibility of the detenu being released on bail, taking note

of common course of events and when reference is made to

the contents of Ext.P6 and P7 bail orders to conclude that

there was every likelihood of the detenu being released WP(Crl).195/15 48

on bail, the same cannot be discarded by holding that the

detaining authority has taken a pre-determined stand on

the issue. Evidently , Exhibit P 7 order was passed on the

37th day of commission of the crime and as rightly

contended by the learned Director General of Prosecution ,

there was ample justification in the authority deducing that

there was every likelihood of the detenue being released

on bail . If the detaining authority had passed the order

without considering the relevant materials as regards the

possibility of release on bail, it could have been said that

the subjective satisfaction was not exercised in a proper

manner. On the other hand, when all the relevant

materials are considered and after taking note of the

common course of events including the umpteen

possibilities of grant of bail, and concludes that there is

every likelihood of the detenu being released, it cannot be

said that the inference drawn by the detaining authority is

extraneous. When the object of Act 34 of 2007 is to

prevent a classified "known rowdy" like the detenu herein,

from indulging in antisocial activities which are WP(Crl).195/15 49

prejudicial to the maintenance of public order, the

standards applied to test the relevancy of subjective

satisfaction should be that of a reasonable person. It

cannot be said that the conclusion arrived at by the

detaining authority was unreasonable or irrelevant or

without materials. Subjective satisfaction being a condition

precedent for the exercise of the power of preventive

detention conferred on the executive, the Court can always

examine whether the requisite satisfaction is arrived at by

the authority; if it is not, the condition precedent to the

exercise of the power would not be fulfilled and the

exercise of the power would be bad. A Court cannot go into

correctness or otherwise of the facts stated or allegations

levelled in the grounds in support of detention. A Court of

Law is 'the last appropriate tribunal to investigate into

circumstances of suspicion on which such anticipatory

action must be largely based. That, however, does not

mean that the subjective satisfaction of Detaining

Authority is wholly immune from judicial reviewability. By

judicial decisions, courts have carved out areas, though WP(Crl).195/15 50

limited, within which the validity of subjective satisfaction

can be tested judicially. The Apex Court has reiterated in a

catena of cases that the Courts have to carefully avoid

substituting their own views about what is enough for

subjective satisfaction of the detaining authorities with

which inference could be justified only if it is clear that no

reasonable person could be possibly be satisfied about the

need to detain on the grounds given in which case the

detention would be in excess of the power to detain. (see

Ram Bali Rajbhar v. Stat of West Bengal (1975 (4)

SCC 47).

46. In Union of India v. Paul Manickam and Another

(2003 (8) SCC 342) the Apex Court has held as follows:

[12]. So far as this question relating to

procedure to be adopted in case the detenu is

already in custody is concerned, the matter has

been dealt with in several cases. Where

detention orders are passed in relation to

persons who are already in Jail under some

other laws, the detaining authorities should

apply their mind and show their awareness in WP(Crl).195/15 51

this regard in the grounds of detention, the

chances of release of such persons on ball. The

necessity of keeping such persons in detention

under the preventive detention laws has to be

clearly indicated. Subsisting custody of the

detenu by itself does not invalidate an order of

his preventive detention, and decision in this

regard must depend on the facts of the

particular case. Preventive detention being

necessary to prevent the detenu from acting in

any manner prejudicial to the security of the

State or to the maintenance of public order or

economic stability, etc. ordinarily, it is not

needed when detenu is already in custody. The

detaining authority must show its awareness to

the fact of subsisting custody of the detenu and

take that factor into account while making the

order. If the detaining authority is reasonably

satisfied on cogent materials that there is

likelihood of his release and in view of his

antecedent activities which are proximate in

point of time, he must be detained in order to

prevent him from indulging such prejudicial

activities the detention order can be validly

made. Where the detention order in respect of a

person already in custody does not indicate that

the detenu was likely to be released on bail, the

order would be vitiated. (See N. Meera Rani v.

Govt. of Tamil Nadu: [1989]3SCR901 :

Dharmendra Suganchand v. Union of India: :

1990CriLJ1232). The point was gone into detail WP(Crl).195/15 52

in Kamarunnissa v. Union of India : 1991

CriLJ 2058 . The principles ware set out as

follows. Even in the case of a person in custody,

a detention order can be validly passed (1) If the

authority passing the order is aware of the fact

that he is actually in custody; (2) if he has

reason to believe on the basis of reliable

material placed before him; (a) that there is a

real possibility of his release on bail, and (b) that

on being released, he would in all probability

indulge in prejudicial activities, and (3) if it is

felt essential to detain him to prevent him from

so doing. If an order is passed after recording

satisfaction in that regard, the order would be

valid. In the case at hand the order of detention

and grounds of detention show awareness of

custody and/or possibility of release on bail.

47. In Ahmad Nassar V State of Tamil Nadu and

Others ( AIR 1999 SC 3897 ) it was observed as follows:

[46]. ............................Thus in spite of

rejection of the bail application by a court, it

is open to the detaining authority to come to

his own satisfaction based on the contents of

the bail application keeping in mind the

circumstances that there is likelihood of the

detenu being released on bail. Merely

because no bail application was then

pending is no premise to hold that there was WP(Crl).195/15 53

no likelihood of his being released on bail.

The words "likely to be released" connote

chances of being bailed out, in case there be

pending bail application or in case if it is

moved in future is decided. The word "likely"

shows it can be either way. So without

taking any such risk if on the facts and

circumstances of each case, the type of

crime to be dealt with under the criminal

law, including contents of the bail

application, each separately or all this

compositely, all would constitute to be

relevant material for arriving at any

conclusion. As the contents of bail

application would vary from one case to the

other, coupled with the different set of

circumstances in each case, it may be

legitimately possible in a given case for a

detaining authority to draw an inference

that there is likelihood of the detenu

released on bail

48. In Rekha (Supra), the detention order in question

only contained mere ipse dixit regarding the alleged

imminent possibility of the accused coming out on bail and

there was no reliable material to this effect. It was in the

said circumstances that the Apex Court had held that the

detention order could not be sustained. In the instant case, WP(Crl).195/15 54

all the aspects including the tenor of the order passed by

the learned Sessions Judge was considered in detail by the

detaining authority and apprehension was expressed as to

the imminent possibility of the accused being released on

bail either by the Sessions Court or the higher Courts.

Moreover in the case on hand the detaining authority had

also considered the antecedents of the detenu. The various

crimes in which the detenu was involved earlier which

was later compounded were also taken note of. The

authority has raised an apprehension that the composition

of the offences was obtained by threatening the de facto

complainants. It has also come out that the detenu has

been habitually and continuously committing heinous

crimes. The detaining authority has taken note of the fact

that the detenu is an extremely wealthy person with no

regard for law or the law enforcement agencies and he is

in the habit of committing crimes and could have

approached any forum for grant of bail to effectuate his

purpose. The detenu is not a person who got involved in a

solitary crime. Having regard to the antecedents, previous WP(Crl).195/15 55

history, predilections of the detenu to indulge in crimes

affecting public order, the nature and conditions of bail

order passed and the possibilities of imminent release on

bail , it cannot be said that the subjective satisfaction of

the detaining authority was not exercised in the proper

manner. We are therefore of the opinion that the challenge

raised in respect of ground No 5 also has to fail .

Ground No. (vi)

49. The next contention raised by the learned senior

counsel appearing for the petitioner is that exhibit P1

detention order is vitiated as the said order was passed as

per the dictates of the higher authorities for extraneous

purpose and with malicious intention. According to the

learned counsel crime number 173/2015 of the police

station is just another ordinary crime but for some

extraneous reasons undue publicity was given to divert the

attention of the people from more pressing matters. The

Chief Minister of the State, Ministers including the Home

Minister, the Opposition leader etc had visited the home of WP(Crl).195/15 56

the deceased and had given public statements. Relying on

exhibit P8 and P9 newspaper clippings it was contended

that the home Minister of the State had visited the house

of the deceased and had given a press statement that the

government has decided to impose an order under Act 34

of 2007 against the detenu and the collector has already

been directed to impose the same. According to the

learned Senior counsel, the detaining authority cannot

abdicate his or her power in favour of the highest authority

in the hierarchy. It was contented that, when the

subjective satisfaction of the detaining authority is

influenced by extraneous reasons or directions or dictates

from higher or other authority the subjective satisfaction

cannot be said to be properly exercised and order becomes

bad in law. Inviting the attention of this court to exhibits

P10 to P12, which are paper clippings which appeared in

the print media it was pointed out various authorities tried

to interfere in the course of investigation of Crime No.

173/2015 of Peramagalam Police Station which vitiated the

whole proceedings.

WP(Crl).195/15 57

50. The learned Director General of Prosecution

countered the contentions raised by the learned senior

counsel and submitted that a perusal of the order will

reveal that the order of detention was issued by the

detaining authority in exercise of powers vested under

section 3 of the Act 34 of 2007 without any extraneous

pressure, considerations or political interferences as

alleged. It was also argued that the stories published by

the media are the figments of their own imagination and

they are only to be ignored in toto. The learned Director

General of Prosecution has also pointed out that the

detenu is an immensely wealthy person and contended that

no sanctity can be given to a paper clipping as the stories

appearing therein can become distorted as a result of

various considerations.

51. We are of the considered opinion that the newspaper

clippings produced by the petitioner as Exts.P8 to P12

cannot be given much value. As regards nature and WP(Crl).195/15 58

admissibility of a newspaper report the Apex Court in

Lakmi Raj Shetty and another V State of Tamil Nadu

(1988 (3 ) SCC 319) had observed thus:

"... We cannot take judicial notice of the facts

stated in a news item being in the nature of

hearsay secondary evidence, unless proved by

evidence aliunde. A report in a newspaper is

only hearsay evidence. A newspaper is not one

of the documents referred to in section 78 (2)

of the evidence act, 1872 by which an

allegation of fact can be proved. The

presumption of genuineness attached under

section 81 of the evidence act to a newspaper

report cannot be treated as proved of the facts

reported therein".

52. Similar observation was also passed by the Supreme

Court in Dr. B Singh V Union of India and others

(2004 (3) SCC 363) wherein it was held that, information

of fact found in a newspaper, Journal or Magazine or any

other form of communication cannot be regarded as gospel

truth. It was held that newspaper reports per se do not

constitute legally acceptable evidence. After going through

exhibit P1 detention order, we do not think that the WP(Crl).195/15 59

detaining authority has abdicated its responsibility. The

contention of the petitioner has to fail on this ground as

well.

Ground No. (vii)

53. The next ground urged by the learned Senior counsel

appearing for behalf of the petitioner is that the

sponsoring authority had had suppressed vital materials

which were in favour of the detenu regarding the incident

leading to crime No 173/2015 in which the security staff

had met with his death allegedly at the hands of the

detenu. According to the learned Senior counsel, the

sponsoring authority have placed before the detaining

authority a lopsided version and the fact that the detenu

had also sustained injuries in the course of the incident

was suppressed by the sponsoring authority before the

detaining authority. Exts.P23 to P25 were produced before

Court along with the reply statement to convince us that

there are suppression of relevant and important materials WP(Crl).195/15 60

and therefore, the detention order is vitiated. We have

gone through Ext.P25 the accident register-cum wound-

certificate prepared on 29.1.2015. It appears that the

detenu was taken to the hospital for the purpose of issuing

medical certificate as requested by the Circle inspector of

police. All that is found are very minor and trivial

abrasions and very minor contusions and muscle pain. The

allegations would reveal that the detenu has assaulted the

security staff in the presence of the other security men and

there is no case that any person including the deceased

had even an occasion to resist the acts of the detenu. It is a

one sided assault by the detenu on the security person on

his failure to open the gate. The assault on the security

staff commenced from the public road and went on inside

the apartment complex. It does not appear to us that the

said document can be said to be so vital so as to have any

relevance in the facts and circumstances of the instant

case. Moreover, it is not the law that every document or

material in the possession of the the sponsoring authority

must necessarily be placed by him before the detaining WP(Crl).195/15 61

authority and in every case where any such document is

not placed by the sponsoring authority before the

detaining authority, the formation of opinion and the

subjective satisfaction will get vitiated. ( See Vinod K.

Chawla V Union of India AIR 2006 SC 2864 ). Only

when the said document is likely to affect the formation of

opinion and the satisfaction of the detaining authority can

it be said that it is a vital document. In the facts of the

instant case, it does not appear to us that the wound

certificate would have influenced the formation of opinion.

The contention raised on this count also has to necessarily

fail.

Ground No (viii)

54. This is the most interesting and novel ground raised

by the learned Senior Counsel appearing for the petitioner.

According to the learned counsel, when a detention order

has been made under Section 3 of the Act 34 of 2007 by

the District Magistrate under S. 3 (2) of Act 34 of 2007,

the person detained has a right to make a representation WP(Crl).195/15 62

before the said authority and the said authority is obliged

to consider the said representation and the failure on his

part to do so results in denial of the right conferred on the

person detained to make a representation against the

order of detention. This right of the detenu is in addition to

his right to make the representation to the State

Government and the Advisory Board. According to the

learned Senior Counsel, the right to make a representation

necessarily implies that the person detained must be

informed of his right to make a representation to the

District Magistrate, who has made the order of detention,

at the time when he is served with the grounds of

detention. Failure to inform the detenu of this right so as

to enable him to make such a representation results in

denial of the right of the person detained to make a

representation. This would vitiate the entire detention

order, is the submission. Reliance was placed on the

Constitution Bench decision of the Apex Court in

Kamaleshkumar Iswardas Patel and Others V State of

Kerala ( 1995 SCC ( Cri) 643 ) to substantiate the said WP(Crl).195/15 63

contention.

55. It was submitted by the learned Senior counsel that

the Constitution, while permitting Parliament and the

State Legislatures to enact a law providing for preventive

detention, prescribes certain safeguards in Article 22 for

the protection of the persons so detained. One such

protection is contained in sub-clause (a) of Clause (4) of

Article 22 which required that no law providing for

preventive detention shall authorise the detention of a

person for a period longer than three months unless an

Advisory Board consisting of persons who are, or have

been, or are qualified to be appointed as Judges of a High

Court has reported before the expiration of the said period

of three months that there is, in its opinion, sufficient

cause for detention. The other safeguard is contained in

Clause (5) of Article 22 which provides as under:

When any person is detained in pursuance of

an order made under any law providing for

Preventive Detention, the authority making the WP(Crl).195/15 64

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.

56. It was submitted based on Article 22(5) that the

Constitution imposes a dual obligation on the authority

making the order of preventive detention: (i) to

communicate to the person detained as soon as may be the

grounds on which the order of detention has been made;

and (ii) to afford the person detained the earliest

opportunity of making a representation against the order of

detention. Article 22(5) thus proceeds on the basis that the

person detained has a right to make a representation

against the order of detention and the aforementioned two

obligations are imposed on the authority making the order

of detention, with a view to ensure that right of the person

detained to make a representation is a real right and he is

able to take steps for redress of a wrong, which he thinks

has been committed. Article 22(5) does not, however,

indicate the authority to whom the representation is to be WP(Crl).195/15 65

made. Since the object and purpose of the representation

that is to be made by the person detained is to enable him

to obtain relief at the earliest opportunity, the said

representation has to be made to the authority which can

grant such relief, i.e., the authority which can revoke the

order of detention and set him at liberty. The authority that

has made the order of detention can also revoke it, is the

submission raised by the learned Senior Counsel. This

right is inherent in the power to make the order. It is

submitted that the said right is recognised by Section 21

of the General Clauses Act, 1897, though it does not flow

from it. On these premises, it is contended that Article 22

(5) postulates that the person detained has a right to make

a representation against the order of detention to the

authority making the order. In addition, such a

representation can be made to any other authority who is

empowered by law to revoke the order of detention. This

aspect, according to the learned Senior counsel, was

considered by the Constitution bench in Kamaleshkumar

Iswardas Patel ( supra) and the question was answered WP(Crl).195/15 66

as follows :

Having regard to the provisions of Article

22(5) of the Constitution and the provisions of

the COFEPOSA Act and the PIT Narcotic

Drugs & Psychotropic Substances Act the

question posed is thus answered : Where the

detention order has been made under Section 3

of the COFEPOSA Act and the PIT Narcotic

Drugs & Psychotropic Substances Act by an

officer specially empowered for that purpose

either by the Central Government or the State

Government the person detained has a right to

make a representation to the said officer and the

said officer is obliged to consider the said

representation and the failure on his part to do

so results in denial of the right conferred on the

person detained to make a representation

against the order of detention. This right of the

detenu is in addition to his right to make the

representation to the State Government and the

Central Government where the detention order

has been made by an officer specially authorised

by a State Government and to the Central

Government where the detention order has been

made by an officer specially empowered by the

Central Government, and to have the same duly

considered. This right to make a representation

necessarily implies that the person detained

must be informed of his right to make a WP(Crl).195/15 67

representation to the authority that has made

the order of detention at the time when he is

served with the grounds of detention so as to

enable him to make such a representation and

the failure to do so results in denial of the right

of the person detained to make a representation.

57. The learned Senior Counsel has also brought to our

notice the pari materia provisions contained in the

COFEPOSA Act and also the Prevention of Illicit Traffic in

the Narcotic Drugs and Psychotropic Substances Act

( hereinafter referred to as the PIT NDPS Act ) . We have

anxiously considered the relevant provisions in the light of

the Constitution Bench Decision .

58. We note that the provisions of the COFEPOSA Act

and the PIT NDPS Act which was dealt with in

Kamleshkumar Ishwardas Patel (supra) differs from

that of other Preventive Detention laws, namely the

National Security Act, 1980, the Maintenance of Internal

Security Act, 1971 and the Preventive Detention Act, 1950. WP(Crl).195/15 68

The provisions of Act 34 of 2007 enacted by the Kerala

legislature is in tune with the National Security Act, 1980

and the other earlier laws enumerated above.

59. After going through the relevant provisions of the

COFEPOSA Act, PIT in Narcotic Drugs & Psychotropic

Substances Act, National Security Act, 1980 as well as

earlier preventive detention laws, namely, the Preventive

Detention Act, 1950, the Maintenance of Internal Security

Act, 1971, we have come across some interesting aspects,

which would reveal that the contention on this count

raised by the Senior counsel is merit less.

60. Let us consider S.3 of the National Security

Act,1980.

[3] - Power to make orders detaining certain persons (1) The Central Government or the State Government may,--

(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India, or WP(Crl).195/15 69

(b) ---------------------------------------.

(2) ----------------------------------------.

Explanation.----------------------------.

(3) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (2), exercise the powers conferred by the said sub- section:

Provided that the period specified in an order made by the State Government under this sub- section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.

(4) When any order is made under this section by an officer mentioned in sub-section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government:

Provided that where under section 8 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detentions, this sub- section shall apply subject to the modification, that, for the words "twelve days", the words "fifteen days" shall be substituted.

(5) When any order is made or approved by the WP(Crl).195/15 70

State Government under this section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order.

As can be seen from the above, under subsection (3) of

Section 3 of the National Security Act, power has been

conferred on the District Magistrate as well as the

Commissioner of Police to make an order of detention, and

Sub-section (4) of Section 3 prescribes that the officer

shall forthwith report the fact of making the order to the

State Government to which he is subordinate together with

the grounds on which the order has been made and such

other particulars as, in his opinion, have a bearing on the

matter, and that no such order shall remain in force for

more than twelve days after the making thereof unless, in

the meantime, it has been approved by the State

Government. In Section 8(1) of the National Security Act ,

it is prescribed that the authority making the order shall

afford the person detained the earliest opportunity of

making a representation against the order to the WP(Crl).195/15 71

appropriate Government. Similar provisions are contained

in the Preventive Detention Act, 1950 and the Maintenance

of Internal Security Act, 1971.

61. The COFEPOSA Act and the PIT NDPS Act do not

provide for approval by the appropriate Government of the

orders passed by the officer specially empowered to pass

such an order under Section 3.

62. On the other hand, Act 34 of 2007 operates in the

same manner as the National Security Act, 1980 .S. 3 of

Act 34 of 2007 reads as follows :-

[3] - Power to make orders for detaining Known

Goondas and Known Rowdies

(1) .....................

(2) ....................

(3) When any order is made under this section

by the authorised officer under sub-section (2),

he shall forthwith report the fact to the

Government and the Director General of Police,

Kerala, together with a copy of the order and

supporting records which, in his opinion, have

a bearing on the matter and no such order shall WP(Crl).195/15 72

remain in force for more than 12 days,

excluding public holidays, from the date of

detention of such Known Goonda or Known

Rowdy, unless, in the meantime, it has been

approved by the Government or by the

Secretary, Home Department if generally so

authorised in this regard by the Government.

( emphasis supplied by us )

63. A proper appraisal of the scheme of Act 34 of 2007

would reveal that as and when an order is passed under

section 3 of the Act by the authorised officer under

subsection (2), he is bound to forthwith report the fact to

the Government and the Director General of Police, Kerala,

together with a copy of the order and supporting records

which in his opinion have a bearing on the matter and no

such order shall remain in force for more than 12 days

excluding public holidays from the date of detention of the

"known goonda" or "known rowdy", unless, in the

meantime, it has been approved by the Government or by

the secretary, Home Department if generally so authorised

in this regard by the Government .

WP(Crl).195/15 73

64. Section 7 of Act 34 of 2007 reads as follows :

[7] - Grounds of order of detention to be

disclosed

(1). When a person is arrested in pursuance of

a detention order, the officer arresting him

shall read out the detention order to him and

give him a copy of such order.

(2). The grounds of detention, specifying the

instances of offences, with copies of relevant

documents, as far as practicable, on the basis

of which he is considered as a "known goonda"

or "known rowdy" and giving such materials

relating to his activities on the basis of which

his detention has been found necessary, shall

be furnished to him as soon as possible

nevertheless, in any case, within five days of

detention and he shall also be informed in

writing, under acknowledgement, of his right

to represent to the Government and before the

Advisory Board against his detention:

-------------------------------------------------------------------

(3). The Superintendent of the Jail where such

person is detained shall afford him reasonable

opportunity to consult a lawyer and reasonable

assistance in making a representation against

the detention order to the Government or to

the Advisory Board.

65. Section 7 of Act 34 of 2007 mandates that when a WP(Crl).195/15 74

person is arrested in pursuance of a detention order, the

officer arresting him shall read out the detention order to

him and give a copy of such order. As per section 7(2), the

grounds of detention specifying the instances of offences,

with copies of relevant documents, as far as practicable on

the basis of which he is considered as a "known goonda" or

"known rowdy" shall be furnished to him as soon as

possible, nevertheless in any case, within five days of

detention and he shall also be informed in writing under

acknowledgement of his right to represent to the

Government and before Advisory board against his

detention. Section 7(3) provides that it is the duty of the

Superintendent of jail where the detenu is housed to afford

reasonable opportunity/assistance in making a

representation against the detention order to the

Government or to the Advisory board.

66. Section 13 of Act 34 of 2007 reads as under:

[13]. Revocation of detention order

(1) A detention order may, at any time, be

revoked or modified by the Government.

WP(Crl).195/15 75 Section 13 of Act 34 of 2007 stipulates that a detention

order may, at any time, be revoked or modified by the

Government .

67. All these provisions are extracted by us to bring out

the fact that Act 34 of 2007 is more in tune with the

National Security act 1980, the Maintenance of Internal

Security Act 1971 and the Preventive Detention Act, 1950.

68. There is specific provision in Act 34 of 2007 that in

respect of orders made by the authorised officer under

section 3 (2) to forthwith report the fact to the Government

to which he is subordinate. Section 3(3) also provides that

no order shall remain in force for more than 12 days after

the making thereof unless in the meantime it has been

approved by the Government or by the Secretary, Home

Department if generally so authorised in this regard by the

Government. This would show that it is the approval of the

State Government which gives further life to the order WP(Crl).195/15 76

which would diffuse on its own on the expiry of 12 days

after its making. It is also the requirement of the said

provision that the report furnished by the authorised

officer to the Government and the Director General of

Police should be accompanied with a copy of the order and

supporting records which has a bearing on the matter. This

provision would mean that the State Government has to

take into consideration the grounds and the said material

while giving its approval to the order of detention. The

effect of the approval by the State Government is that from

the date of such approval, the detention is authorised by

the order of the State Government approving the order of

detention and the State Government is the detaining

authority from the date of order of approval. It is for the

said purpose that section 7(2) of Act 34 of 2007 envisages

that the representation against the order of detention is to

be made before the Government and also the Advisory

Board as the case may be, against his detention.

69. Interestingly the COFEPOSA Act and the PIT NDPS WP(Crl).195/15 77

Act do not require the approval of an order made by the

officer specially empowered by the State Government or by

the Central government. S. 3 of the Conservation of

Foreign Exchange and Prevention of Smuggling Activities

Act, 1974, reads as follows :

[3] - Power to make orders detaining certain

persons

(1) The Central Government or the State

Government or any officer of the Central

Government, not below the rank of a Joint

Secretary to that Government, specially

empowered for the purposes of this section by

that Government, or any officer of the State

Government, not below the rank of a Secretary

to that Government, specially empowered for

the purposes of this section by that

Government, may, if satisfied, with respect to

any person (including a foreigner), that, with a

view to preventing him from acting in any

manner prejudicial to the conservation or

augmentation of foreign exchange or with a

view to preventing him from--

(i) smuggling goods, or

(ii) abetting the smuggling of goods, or

(iii) engaging in transporting or concealing or

keeping smuggled goods, or

(iv) dealing in smuggled goods otherwise than WP(Crl).195/15 78

by engaging in transporting or concealing or

keeping smuggled goods, or

(v) harbouring persons engaged in smuggling

goods or in abetting the smuggling of goods,

it is necessary so to do, make an order directing

that such person be detained:

1. [Provided that no order of detention shall be

made on any of the grounds specified in this

sub-section on which an order of detention may

be made under section 3 of the Prevention of

Illicit Traffic in Narcotic Drugs and

Psychotropic Substances Act, 1988 or under

section 3 of the Jammu and Kashmir Prevention

of Illicit Traffic in Narcotic Drugs and

Psychotropic Substances Ordinance, 1988 [J &

K Ordinance, 1 of 1988).]

(2). When any order of detention is made by a

State Government or by an officer empowered

by a State Government, the State Government

shall, within ten days, forward to the Central

Government a report in respect of the order.

(3). For the purposes of clause (5) of article 22

of the Constitution, the communication to a

person detained in pursuance of a detention

order of the grounds on which the order has

been made shall be made as soon as may be

after the detention, but ordinarily not later than

five days, and in exceptional circumstances and

for reasons to be recorded in writing, not later

than fifteen days, from the date of detention. WP(Crl).195/15 79

70. It can be seen from the above that the order passed

by the Specially Empowered Officer under the COFEPOSA

Act operates on its own. All that is required by section 3

(2) of the COFEPOSA act and the PIT NDPS Act is that the

State Government should forward to the Central

government within 10 days a report in respect of an order

that is made by the State Government or an officer

specially empowered by the State Government. Unlike

section 3 (3) of Act 34 of 2007, there is no requirement in

the COFEPOSA Act and the PIT NDPS Act , which

stipulates that the officer specially empowered for the

purpose of making an order of detention must forthwith

send to the Government concerned, the grounds and the

supporting material on the basis of which the order of

detention has been made. It is not prescribed in the said

enactments that after the order of detention has been

made by the officer specially empowered for that purpose,

the government concerned is required to apply its mind to

the grounds and the supporting material on the basis of

which the order of detention was made. The only WP(Crl).195/15 80

circumstance from which an inference about deemed

approval is sought to be drawn is that the order is made by

the Officer specially empowered for that purpose by the

Government concerned. By virtue of section 3 (2) of the

COFEPOSA Act and the PIT NDPS Act the Central

Government or the State Government, confers an

independent power on the said officer to make an order of

detention after arriving at his own satisfaction about the

activities of the person sought to be detained. Since the

detention of the person detained draws its legal sanction

from the order passed by such officer , the officer is the

detaining authority in respect of the said person. He

continues to be the detaining authority so long as the order

of detention remains operative. The said officer ceases to

be the detaining authority only when the order of

detention ceases to operate. This would be on the expiry of

the period of detention as prescribed by law or on the

order being revoked by the officer himself or by the

authority mentioned in section 11 of the COFEPOSA Act

and section 12 of the PIT NDPS act. In other words the WP(Crl).195/15 81

officer does not go out of the picture after he has passed

the order of detention. It is on the strength of the aforesaid

provisions that Kamaleshkumar Ishwardas Patel

( supra) laid down that the officer specially empowered for

that purpose continues to be the detaining authority and is

not displaced by the government concerned after he has

made the order of detention. It was therefore, held in the

Constitution bench decision that by virtue of him being the

detaining authority he is required to consider the

representation of the person detained against the order of

detention.

71. We deem it apposite to extract the paragraph 34 of

the Judgement in Kamaleshkumar Eashwardas Patel

(supra) for a clear understanding of the legal position. In

this cardinal paragraph of the Judgement, the Constitution

Bench of the Apex Court discusses the reason for holding

that the officer empowered by the Government must

inform the person detained of his right to make a

representation to the authority that has made the order of WP(Crl).195/15 82

detention at the time when he is served with the grounds

of detention so as to enable him to make such a

representation and the failure to do so results in denial of

the right of the detenu.

[34]. ......................... The COFEPOSA Act

and the PIT Narcotic Drugs & Psychotropic

Substances Act do not require the approval

of an order made by the officer specially

empowered by the State Government or by

the Central Government. The order passed

by such an officer operates on its own force.

All that is required by Section 3(2) of

COFEPOSA Act and PIT Narcotic Drugs &

Psychotropic Substances Act is that the

State Government shall within 10 days

forward to the Central Government a report

in respect of an order that is made by the

State Government or an officer specially

empowered by the State Government. An

order made by the officer specially

empowered by the State Government is

placed on the same footing as an order

made by the State Government because the

report has to be forwarded to the Central

Government in respect of both such orders.

No such report is required to be forwarded

to the Central Government in respect of an

order made by an officer specially WP(Crl).195/15 83

empowered by the Central Government.

Requirement regarding forwarding of the

report contained in Section 3(2) of the

COFEPOSA Act and the PIT Narcotic Drugs

& Psychotropic Substances Act cannot,

therefore, afford the basis for holding that

an order made by an officer specially

empowered by the central Government or

the State Government acquires deemed

approval of that government from the date

of its issue. Approval, actual or deemed,

postulates application of mind to the action

being approved by the authority given

approval. Approval of an order of detention

would require consideration by the

approving authority of the grounds and the

supporting material on the basis of which

the officer making the order had arrived at

the requisite satisfaction for the purpose of

making the order of detention. Unlike

Section 3(4) of the National Security Act

there is no requirement in the COFEPOSA

Act and the PIT Narcotic Drugs &

Psychotropic Substances Act that the officer

specially empowered for the purpose of

making of an order of detention must

forthwith send to the concerned

government the grounds and the supporting

material on the basis of which the order of

detention has been made. Nor is it

prescribed in the said enactments that after WP(Crl).195/15 84

the order of detention has been made by the

officer specially empowered for that

purpose the concerned government is

required to apply its mind to the grounds

and the supporting material on the basis of

which the order of detention was made. The

only circumstance from which inference

about deemed approval is sought to be

drawn is that the order is made by the

officer specially empowered for that

purpose by the concerned government.

Merely because the order of detention has

been made by the officer who has been

specially empowered for that purpose would

not, in our opinion, justify the inference that

the said order acquires deemed approval of

the government that has so empowered

him, from the date of the issue of the order

so as to make the said government the

detaining authority. By specially

empowering a particular officer under

Section 3(2) of the COFEPOSA Act and the

PIT Narcotic Drugs & Psychotropic

Substances Act the Central Government or

the State Government confers an

independent power on the said officer to

make an order of detention after arriving at

his own satisfaction about the activities of

the person sought to be detained. Since the

detention of the person detained draws its

legal sanction from the order passed by WP(Crl).195/15 85

such officer, the officer is the detaining

authority in respect of the said person. He

continues to be the detaining authority so

long as the order of detention remains

operative. He ceases to be the detaining

authority only when the order of detention

ceases to operate. This would be on the

expiry of the period of detention as

prescribed by law or on the order being

revoked by the officer himself or by the

authority mentioned in Section 11 of the

COFEPOSA Act and Section 12 of the PIT

Narcotic Drugs & Psychotropic Substances

Act. There is nothing in the provisions of

these enactments to show that the role of

the officer comes to an end after he has

made the order of detention and that

thereafter he ceases to be the detaining

authority and the concerned government

which had empowered him assumes the role

of the detaining authority. We are unable to

construe the provisions of the said

enactment as providing for such a limited

entrustment of power on the officer who is

specially empowered to pass the order. An

indication to the contrary is given in Section

11 of the COFEPOSA Act and Section 12 of

the PIT Narcotic Drugs & Psychotropic

Substances Act which preserve the power of

such officer to revoke the order that was

made by him. This means that the officer WP(Crl).195/15 86

does not go out of the picture after he has

passed the order of detention. It must,

therefore, be held that the officer specially

empowered for that purpose continues to be

the detaining authority and is not displaced

by the concerned government after he has

made the order of detention. Therefore, by

virtue of his being the detaining authority

he is required to consider the

representation of the person detained

against the order of detention.

72. As is seen from the above extract of the judgment ,

the Apex Court took note of the fact that the COFEPOSA

Act and the Prevention of Illicit Traffic in Narcotic Drugs

and Psychotropic Substances Act do not require the

approval of an order made by the Officer specially

empowered by the State Government or by the Central

Government. It was noted that the order passed by such

officer operates on its own force. All that was required by

S.3(2) of COFEPOSA Act and PIT NDPS Act was for the

State Government to forward a report to the Central

Government within ten days in respect of the order that is

made by the State Government or the Officer specially WP(Crl).195/15 87

empowered by the State Government. Further more, it was

held that the requirement regarding forwarding of the

report contained in S.3(2) of the COFEPOSA Act and PIT

NDPS Act cannot be the basis for holding that an order

made by an Officer specially empowered by the Central

Government or the State Government acquires deemed

approval of that Government from the date of its issue. It

was held in the above judgment that since the detention of

the person detained draws its legal sanction from the order

passed by such Officer, the Officer is the detaining

authority in respect of the said person. He continues to be

the detaining authority so long as the order of detention

remains operative. He ceases to be the detaining authority

only when the order of detention ceases to operate. This

would be on the expiry of the period of detention or on the

order being revoked by the Officer himself or by the

authority mentioned in S.11 of the COFEPOSA Act and

S.12 of the PIT NDPS Act. It was specifically observed that

there was nothing in the provisions of these enactments to

show that the role of the officer comes to an end after he WP(Crl).195/15 88

has made the order of detention and that thereafter, he

ceases to be the detaining authority and the concerned

Government which had empowered him assumes the role

of the detaining authority. It was in the said circumstances

that it was held by the Apex Court that the Officer specially

empowered for that purpose continues to be the detaining

authority and is not displaced by the concerned

Government after he has made the order of detention and

therefore, by virtue of his being the detaining authority, he

is required to consider the representation of the person

detained against the order of detention. The Apex Court

also took note that the provisions of the COFEPOSA Act

and PIT and NDPS Act differs from the National Security

Act, 1980, the maintenance of Internal Security Act, 1971

and the Preventive Detention Act, 1950. According to us,

the ratio of the judgement in Kamaleshkumar Ishwardas

Patel (supra) can be applied only in Preventive detention

cases involving the COFEPOSA Act or the PIT NDPS Act or

similar Acts with analogous provisions. WP(Crl).195/15 89

73. In view of the above discussion, we hold that the

responsibility or the burden cast upon the detaining

authority, under Article 22(5) of the Constitution and S.7

(2) of the KAAPA, while passing orders for detaining

"known goondas" or "known rowdies" under S. 3 of the

Act, will stand discharged by affording an earliest

opportunity to make a representation and communication

of the availability of such opportunity/right to represent to

the Government and before the Advisory Board against his

detention. The detaining authority is not bound, as per the

scheme of Act 34 of 2007, to inform the detenu of his right

to represent before the detaining authority himself, as

there exist no such right. The ratio of the judgment in

Kamaleshkumar Ishwardas Patel (supra) can be applied

only in detention orders passed under the COFEPOSA Act

and also the Prevention of Illicit Traffic in Narcotic Drugs

and Psychotropic Substances Act, 1974 or in Acts with

analogous provisions. We further hold that in the instant

case, the burden on the detaining authority must be held

to be adequately discharged when the detenu is informed WP(Crl).195/15 90

of his right to make a representation at the earliest

available opportunity. That has been successfully

discharged in this case. The contention raised by the

petitioner as ground No. (viii) also has to fail .

74. In the result, we are unable to accept the case of

the petitioner that Ext. P1 order is vitiated on any one of

the contentions raised by the learned counsel for the

petitioner.

Resultantly, the Writ Petition will stand dismissed.

Sd/-

V.K.MOHANAN Judge

Sd/-

RAJA VIJAYARAGHAVAN.V. Judge

Mrcs /True copy/

P.S to Judge