W. P.(Crl.) No. 446 of 2009. Case: Babu Vs State of Kerala. High Court of Kerala (India)
| Case Number | W. P.(Crl.) No. 446 of 2009 |
| Counsel | S. Sreekumar, P. M. Ziraj, K. K. Ravindranath, P. Ravindra Babu |
| Judges | R. Basant & M. C. Hari Rani, JJ. |
| Issue | Kerala Anti-Social Activities (Prevention) Act, 2007 - Sections 2(p), 3, 10(4); Code of Criminal Procedure, 1973 (as amended by Act No.25 of 2005 & Act No.2 of 2006) - Section 167; Indian Penal Code, 1860 - Sections 120, 302, 308, 324, 379, 395, 427 |
| Citation | 2010 (1) KLT 132 |
| Judgement Date | December 17, 2009 |
| Court | High Court of Kerala (India) |
Judgment:
R. Basant, J.
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Is a second order of detention possible and permissible when an earlier order of detention remains contumaciously unexecuted?
ii) Are Exts.P1 and P2 separate orders of detention or are they to be reckoned as a composite order of detention - the latter representing only application of mind on the question whether the former deserves to be executed under the new situation and changed circumstances?
These interesting questions are canvassed ably by the learned counsel in this Writ Petition.
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The petitioner, claiming to be a friend of one Anil Kumar @ Keppan Ani (hereinafter referred to as 'the detenu'), has filed this petition for issue of a writ of habeas corpus to direct production and release of the detenu, who is under detention under S.3 of the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred to as the ' KAAPA') as per Ext.P1 and P2 orders dated 19.1.2009 and 27.8.2009 passed by the 2nd respondent.
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The said order Ext.P1 was passed on 19.1.2009. It was not executed till 27.8.2009. On 27.8.2009. Ext.P2 order was passed and accordingly the detenu, who remained in judicious custody in connection with another case from 5.6.2009, was taken into preventive detention custody with effect from 28.8.2009. Orders approving the detention under S.3(3) and confirming the detention under S. 10(4) of the KAAPA have already been passed, it is submitted.
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A brief reference to the vital facts may be crucially relevant. The detenu is classified as a known rowdy. The learned Government Pleader takes the stand that the detention is on the basis of both Exts.P1 and P2. Ext.P1 is the original order of detention dated 19.1.2009. Ext.P2 dt.27.8.2009 is the addendum to Ext.P1 passed by the 2nd respondent immediately prior to the execution of the order under S.3 of the KAAPA and detention of the detenu w.e.f 28.8.2009. Exts.P1 and P2 taken together refer to 6 cases which are pending against the detenu. We give below the details of the said cases.
Sl. No.
Crime No.
Date of offence
Main offences alleged
Final report filed or not
Status
1
33 of 2004
31.1.2004
324 & 427 IPC
filed
pending trial
2
9 of 2005
7.1.2005
379 IPC
filed
pending trial
3
1066 of 2006
23.7.2006
120 B & 395 IPC
filed
pending trial incorrect
4
48 of 2006
93.2006
308 IPC
filed
pending trial
5
23 of 2008
20.12008
308 IPC
not filed
pending investigation
6
323 of 2009
1.6.2009
302 IPC
not filed
pending investigation
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The learned counsel for the petitioner and the learned Government Pleader have advanced their arguments. The learned counsel for the petitioner assails the impugned orders Exts.P1 and P2 and the consequent detention of the detenu on the following grounds.
i) Both Exts.P1 and P2 reveal gross and total inadequacy in application of mind to the relevant circumstances;
ii) The KAAPA does not contemplate a second order of detention when an unexecuted first order is already in existence:
iii) There has been gross delay in the execution of Ext.P1 order and this must lead to the irresistible conclusion that there has been snapping of nexus between the alleged contumacious acts and the act of detention on 28.8.2009;
iv) The detaining authority while passing Ext.P2 totally ignored the fact that the detenu was in custody and his preventive detention was unnecessary.
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For the sake of convenience, we shall deal with all these 4 grounds together. It is trite that before a valid order of detention is passed under S. 3 of the KAAPA, the detaining authority on the materials placed before him must entertain the twin satisfactions referred to in S.3 of the KAAPA. He must first entertain the satisfaction that the detenu is a known goonda or a known rowdy. This is initial threshold satisfaction and it is an objective satisfaction.
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Having entertained the initial threshold satisfaction, the detaining authority must proceed to consider whether the latter subjective satisfaction can be entertained. He must be satisfied that detention of such known goonda or known rowdy is necessary to prevent him from indulging in anti social activities.
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The first question is whether mind has been applied to these two aspects. There is no contention that the 6 cases referred above (or any 3 of them) will not bring the detenu within the sweep of the expression 'known rowdy' under S.2(p) of the KAAPA. The former objective satisfaction is thus entertained satisfactorily.
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The latter subjective satisfaction is entertained on the basis of the 6 cases referred above. We say so reckoning Exts.P1 and P2 as a composite order which was in existence at the time of execution of the order. Even if Ext.P1 were considered after excluding case No.6, which was not there in existence when Ext.P1 was passed, it can still be safely held that the latter subjective satisfaction was satisfactorily entertained. So far as Ext.P2 is concerned, after taking into consideration case No.6, it is absolutely safe to conclude that on the date of Ext.P2, the latter subjective satisfaction was also validly and satisfactorily entertained. So whether Exts.P1 and P2 are reckoned as a composite order or separate orders of detention, both the satisfactions, it can be seen, were sufficiently and satisfactorily entertained by the detaining authority.
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That takes us to the contention raised by the learned counsel for the petitioner that 2 orders are...
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W.P. (Crl.) No. 76 of 2011 (S). Case: Girija Vs State of Kerala and Ors.. High Court of Kerala (India)
...establish that the approving authority had in mind Ext.P2 or that it is approved. He submits further that the decision in Babu's case (2010 (1) KLT 132) requires reconsideration. He points out that Section 3(3) of the Act requiring "forthwith" reporting of the detention, inter alia, stood P......
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W.P. (Crl.) No. 76 of 2011 (S). Case: Girija Vs State of Kerala and Ors.. High Court of Kerala (India)
...establish that the approving authority had in mind Ext.P2 or that it is approved. He submits further that the decision in Babu's case (2010 (1) KLT 132) requires reconsideration. He points out that Section 3(3) of the Act requiring "forthwith" reporting of the detention, inter alia, stood P......