WP (Cri) No. 105 of 2013(S). Case: Sakunthala Vs State of Kerala and others. High Court of Kerala (India)
| Case Number | WP (Cri) No. 105 of 2013(S) |
| Counsel | For Petitioner: B. S. Swathy Kumar, Smt. V. Beena, Smt. K. V. Suprabha, Advs. and For Respondents: Tom Jose Padinjarekkara, Addl. D.G.P. Govt. Pleader Shibu John, Adv. |
| Judges | K. M. Joseph , J. and K. Ramakrishnan, J. |
| Issue | Kerala Anti-Social Activities (Prevention) Act (34 of 2007) - Sections 2(a)(i)(j)(o), 3(1), 7 |
| Citation | 2013 CriLJ 4023 |
| Judgement Date | April 12, 2013 |
| Court | High Court of Kerala (India) |
Judgment:
K. Ramakrishnan, J.
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This is an application filed by the wife of the detenu, challenging Ext.P1 detention order dated 28.11.2012 and for setting him at liberty.
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The petitioner is the wife of Kumar alias Kallakumar, who is the detenu in the case, who has been detained in Central Prison, Thiruvananthapuram, under Section 3(1) of the Kerala Anti Social Activities Prevention Act, 2007 (hereinafter called the 'KAAPA Act'), on the basis of Ext.P2 report, requesting to declare the husband of the petitioner as a known-goonda and detain him under the provisions of the Act. The 3rd respondent sent Ext.P2 report to the 2nd respondent, and 2nd respondent after consideration of the materials produced before him, declared the detenu as known-goonda and passed Ext.P1 order, and that was sent to Government for approval, and the same was approved by the Government as per order of approval No.102664/SSA5/2012/Home dated 10.12.2012. Ext.P3 detention order was issued directing the detenu to be detained in Central Prison, Thiruvananthapuram and accordingly he was arrested on 01.12.2012. Thereafter, the husband of petitioner filed an application to the Government for releasing him and after getting the report from the Advisory Board, Government by order dated 29.01.2013 approved and confirmed the order of detention of the detenu as per Ext.P5 order.
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The application filed by the petitioner was rejected and it was intimated to the petitioner by the Principal Secretary as per Ext.P4 intimation. The petitioner is a cancer patient, suffering from carcinoma left breast and she is undergoing treatment, for the same evidenced by Ext. P6 medical document. According to the petitioner, the sponsoring authority as well as the detaining authority had suppressed the material facts and the detaining authority has not applied his mind, regarding the pendency of proceedings under Section 107 of Criminal Procedure Code against the detenu, and necessary documents relied on by the detaining authority for coming to the conclusion that he is a known goonda have not been supplied to the detenu and as such prejudice has been caused to him and thereby the detention order passed by the detaining authority and approved by the Government and confirmed by the Government is illegal and hence the same is liable to be set aside. Hence the writ petition was filed by the wife of the detenu for writ of habeas corpus or any other appropriate writ order or direction commanding and compelling the respondents to produce:
(i) the corpus of the petitioner's husband Kumar alias Kallakumar before this Hon'ble Court as the detention is illegal.
(ii) issue a writ of certiorari or other appropriate writ or order or direction calling for records leading to Exts.P1 and P5 and quash the same and declare that the detention of the detenu is illegal and the detenu may be set at liberty.
(iii) such other appropriate writ or order or direction as this Hon'ble Court may deem fit and proper to meet the ends of justice.
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The 3rd respondent filed counter contending as follows:
The petition is not maintainable. None of the grounds mentioned in the writ petition are sufficient to set aside or quash the detention order, Ext.P1 and the confirmation order passed by the Government, Ext.P5. The detenu is having a history sheet of known de-predator of Cantonment Police Station, and is having strong antecedents of criminal activities since 1981. He is engaged in illegal trading of ganja and illicit liquor and he was accused in 8 criminal cases registered under the provisions of the Narcotic Drugs and Psychotropic Substances Act (hereinafter called the 'NDPS Act'), Kerala Abkari Act, Prevention of Damage to Public Property Act (hereinafter called the 'PDPP Act') within a period from 2006- 2012 of which in two cases, he has been convicted and other five cases, trial is progressing at present and in the remaining one case, though the commission of the offence committed by the accused has been established beyond doubt, the same is pending for some technical reasons. On the basis of the report submitted by this respondent, the 2nd respondent, after considering the materials available, passed Ext.P1 detention order dated 28.11.2012 and the same was executed on 01.12.2012, and the grounds for detention along with the documents were served on the detenu evidenced by Exts. R3 (a), (b) and (c) and the copy report submitted by this respondents was also given to the detenu and acknowledgment obtained evidenced by Ext. R3(d). The detaining authority has considered all the aspects and applied his mind before passing the order, and rightly come to the conclusion that he is a known-goonda and passed Ext.P1 order. That was sent to the Government for approval and it was approved by the Government. The representation submitted by the detenue through jail authorities was considered by the Government after getting report from the Advisory Board, and then passed Ext.P5 order and so, the procedure adopted by the authorities is perfectly legal and does not suffer from any infirmity, and the order passed is perfectly justifiable and there is no ground made out for setting aside the orders, and he prayed for dismissal of the application.
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The second respondent has filed counter contending that he has considered all the documents and the report submitted by the 3rd respondent and then come to the conclusion that the detenu is a known-goonda defined under the Act and felt in the public interest to detain him under the provisions of the 'KAAPA Act' (Kerala Anti-Social Activities (Prevention) Act), 2007 and accordingly passed Ext.P1 order. In the circumstances and the antecedents of the detenu will go to show that initiating proceedings under Section 107 of Criminal Procedure Code is not going to improve his condition and his presence is a threat to the society and so, satisfied that he has to be detained under the provisions of the Act and passed the order. This was approved by the Government within time and there is no illegality committed in passing the order and as such the order passed is perfectly justifiable. He prayed for dismissal of the petition.
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