The Kerala Anti-Social Activities (Prevention) Act, 2007 – Section 3 – When a detaining authority is not apprised of and is unaware of the fact that bail subject to conditions has been granted recently to a detenu and proceeds on the grossly erroneous premise that the Detenu is absconding, are those circumstances sufficient to invalidate the order of preventive detention ?
2009 (2) KLJ 715
IN THE HIGH COURT OF KERALA AT ERNAKULAM
R. Basant & M.C. Hari Rani, JJ.
W.P. (Crl.) No. 205 of 2009
Advocates appearing for the Parties : Dinesh Mathew J. Muricken; K.K. Ravindranath, K.J. Mohammed Anzar
J U D G M E N T
Has there been proper application of mind by the detaining authority ? When a detaining authority is not apprised of and is unaware of the fact that bail subject to conditions has been granted recently to a detenu and proceeds on the grossly erroneous premise that the Detenu is absconding, are those circumstances sufficient to invalidate the order of preventive detention? These questions arise for determination before us.
2. The petitioner is the father of a detenu under Section 3 of the Kerala Anti-Social Activities (Prevention) Act 2007 (hereinafter referred to as KAAPA). There were three cases registered against him. Though the incidents in those three cases occurred on 28/9/2005,16/12/2006 and 31/8/2008 and final reports had not been filed,, it was alleged that he was a known rowdy and his detention was necessary under Section 3 of the KAAPA. Proceedings commenced with Ext PS report dated 10/9/2008 submitted by the Circle Inspector of Police to the Superintendent of Police. The Superintendent of Police examined the documents and issued Ext.P4 order dated 19/1/2008 directing the registration of an F.I.R under Section 3 of the KAAPA. Accordingly, the F.I.R ExtP3 was registered on 27/12/2008. Report dated 30/12/2008 was submitted by the Superintendent of Police to the District Collector.
3. It will be apposite straight away to note that on 30/12/2008, the date of that report, under Section 3(1), in two of the three cases final reports had not been filed and the cases were pending investigation, even though it is asserted that in the course of the incomplete investigation, satisfaction had been entertained by the police that the detenu had committed the offences alleged against him.
4. No action was taken on that report dated 30/12,2008 by the District Magistrate. The District Magistrate returned the report dated 30/12/2008 to the Superintendent of Police. Thereafter in cases 2 and 3 referred above final reports dated 3/1/2009 and 30/3/2009 were filed by the investigating officer.
5. It was subsequently that ExtP2 report dated 08/04/2009 was submitted by the Superintendent of Police to the District Magistrate. On the basis of that report Ext PI order of detention under Section 3 of the KAAPA was passed by the District Magistrate.
6. The order passed under Section 3(2) was approved by the Government under Section 3(3). Advisory Board is yet to give its opinion, submit both sides. The detenu was arrested on 3/5/2009 and he continues to be under detention from that date.
7. Arguments have been advanced by me learned counsel for the petitioner as also the learned Additional Director General of Prosecutions. The learned counsel for the petitioner assails the impugned order of detention and the consequent detention on two specific grounds:
i) There is no proper application of mind and very vital information in the form of Ext PI5 order granting bail has been suppressed by the Superintendent of Police from the detaining authority and the detaining authority had not adverted to that aspect at all.
ii) The live link between the alleged culpable conduct and the order of detention has been snapped because of the delay in initiation of proceedings which commenced with the report dated 10/9/2008 and culminated with the order of detention dated 28/4/2009.
8. Ground No. i): The learned counsel for the petitioner submits that when the report dated 8.4.2009 was submitted by the Superintendent of Police to the District Magistrate (Ext.P2), it was specifically stated that the detenu is absconding’ and has not been arrested in the 3rd crime referred above – that is crime No. 1783/08 of Perumbavoor police station. In the order of detention – in the grounds annexed to the order of detention, the District Magistrate has also stated specifically that the detenu is absconding and is not available for arrest. In the counter affidavit filed by the 3rd respondent in paragraph 9, the 3rd respondent District Magistral has repeated that the detenu was evading arrest in the said crime No. 1783/08 of Perumbavoor police station. The learned counsel for the petitioner contends that the Inference is irresistible in these circumstances that the detaining authority as also the sponsoring authority were under the impression that in crime No. 1783/08, the detenu was absconding and evading arrest According to the learned counsel for the petitioner,, this is a gross distortion of facts. The sponsoring authority as well as the detaining authority were blissfully unaware of, did not care to ascertain and were misled to believe that the detenu was absconding in that crime on the date of the order of detention as also on the date of the report of the sponsoring authority dated 8/4/2009.
9. The learned counsel for the petitioner submits that the fact is entirely different. He relies on Ext.P15 order passed by the Judicial First Class Magistrate Court, Perumbavoor dated 12/1/2009 which shows clearly that the petitioner was granted bail subject to conditions on 12/l/2009, He was actually released from custody from 13/1/ 2009, it is submitted.
10. The learned counsel submits that the detaining authority was misled by the report, dated 8/4/2009 to believe that the detenu was absconding. The Superintendent of Police, in the report dated 8/4/2009, furnished such incorrect information which was acted upon by the detaining authority. The Superintendent of Police either suppressed the vital information about the grant of bail under Ext PI 5 or did not care to ascertain the true facts on those aspects. Either way, non-consideration of ExtP l5 order and the fact that the detenu was enlarged on bail and the further fact that the Magistrate had imposed appropriate and necessary conditions for grant of bail virtually and vitally reveals non-application of mind., contends the learned counsel for the petitioner; The fact mat the detenu was on bail was not revealed in Ext.P2 report and the fact that he was released on bail subject to conditions was not considered by the detaining authority while passing Ext.PI order.
11. The learned counsel for the petitioner contends that the order granting bail subject to conditions as late as on 12/1/2009 is a very vital and crucial document. Mind must have been applied alertly, independently and dispassionately to the said document when the question whether detention of the detenu is necessary is considered by the authorities under Section 3 of the KAAPA. Inasmuch “as the sponsoring authority did not report the fact of release on bail subject to conditions and reiterate the incorrect fact that the detenu was still absconding and inasmuch as the detaining authority was under the mistaken impression that the detenu was still absconding and did not know that he had been, released on bait Ext.PI order is liable to be set aside, contends the learned counsel for the petitioner.
12. The learned counsel for the petitioner in this context relies on various precedents to drive home the point that vital documents cannot be withheld from the detaining authority by the sponsoring authority. He also points out that the law is very clear that the detaining authority has to apply his mind to all relevant circumstances and when such a vital circumstance is not adverted to by the detaining authority and the detaining authority proceeds on the incorrect and erroneous impression that the detenu is absconding on the date of passing of the order, that vitiates the subjective satisfaction entertained by the detaining authority.
13. Reliance is placed on the following precedents:
i) M. Ahamedkutty v. Union of India, (1990) 2 SCC 1 paragraph 27 which we extract below:
“Considering the facts in the instant case., the bail application and the bail order were vital materials for consideration. If those were not considered the satisfaction of the detaining authority itself would have been impaired,and if those had been considered, they would be documents relied on by the detaining authority though not specifically mentioned in the annexure to the order ‘of detention and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves could not be said to have been complete. We have, therefore, no alternative but to hold that it amounted to denial of the detenu’s right to make an effective representation and that it resulted in violation of Article 22(5) of the Constitution of India rendering the continued detention of the detenu illegal and entitling the detenu to be set at liberty in this case”.
ii) Elizebath George v. State of Kerala, 2008 (4) KLT 425 paragraph 18. We extract the said paragraph below:
Going by the decision of the Apex Court in Usha Agarwal v. Union of India & Ors., (2007) 1 SCC 295 “the procedural safeguards under the Constitution have been interpreted, to require every material which is relevant having a bearing on the question as to whether a person should be detained under the Act, be placed before the detaining authority, as the decision to detain a person is rendered by a detaining authority on his subjective satisfaction as to the existence of the grounds for such detention. The sponsoring authority should not undertake any exercise of examination and interpretation of the available material with a view to place the documents selectively before the detaining authority. It is not for the sponsoring authority to decide as to which of the relevant documents should be placed before the detaining authority, or which of the documents are likely to help or not help the prospective detenu. Consequently, the sponsoring authority cannot exclude any particular document from the material to be placed before the detaining authority. If the relevant facts or documents which may influence the subjective satisfaction of the detaining authority on the question whether or not to make the detention order, are not placed before the detaining authority, or are not considered by the detaining authority, it may vitiate the detention order itself, It is no answer to say that the view of the other documents that were placed before the detaining authority or that the detaining authority would have come to the same conclusion even if it had considered the said document.”
14. It need not be over emphasized in the facts and circumstances of this case that Ext.PI 5 is a very vital document and the same must have been considered when the requisite application of mind is made by the detaining authority under Section 3 of the KAAPA. The learned Additional Director General of Prosecutions relies on the decision in K. Varsdliaraj v. State of T.N., (2002) 6 SCC 735 to contend that the significance of the document in the facts of each case will have to be considered in detail. We have no hesitation to take the view that in the facts and circumstances of this case,, the bail granted under Ext.Pl 5 subject to conditions within a period of about three months prior to the date of Ext.P1 order, is a vital document to which mind of the detaining authority must have been applied.
15. The order of detention Ext.P1 must in these circumstances, be held to be vitiated for the following reasons –
a) Sponsoring authority was either unaware of Ext.P15 or had suppressed the same from the detaining authority.
b) The detaining authority did not know and did not apply his mind to Ext.P15.
c) Consequently, the detaining authority did not. At all consider whether, in spite of the conditions imposed under Ext,PI 5,. detention of the detenu was necessary.
d) Not only that the detaining authority did not know of Ext.P15 but was under the impression that the detenu was absconding and that incorrect fact was also reckoned as a ground for detention.
16. We are satisfied, in these circumstances, that the challenge raised under Ground No,(i) is bound to succeed. There has been no proper application of mind. We need not reiterate that a refined and civilized legal system tolerates preventive detention only subject to very careful safeguards. In many of the civilized. nations of the world, such preventive detention is permitted only when there is external aggression or internal unrest. The Indian constitution, with its zealous commitment to the cause of personal liberty and freedom., tolerates preventive detention but subject to very strict safeguards. Proper application of mind by the detaining authority is one such non-negotiable and axiomatic requirements. Inasmuch as this court is not satisfied that such application of mind had preceded Ext.Pl order of detention, we are satisfied that the impugned order of detention has got to be set aside. We do so, In the light of our finding on Ground No.i), we are not persuaded to consider the challenge raised under Ground No ii) on various aspects. The learned Additional Director General of Prosecutions submits that it may be made clear that this judgment shall not affect the rights/powers of the detaining authority under Section 13 of the KAAPA. Needless to say, any right/ power, if available under Section 13 shall remain unfettered by this judgment.
17. In the result
a) This writ petition is allowed.
b) Ext.PI order of detention and the consequent detention of the detenu is set aside.
c) If the detention of the detenu is not necessary in any other case, he shall forthwith be released from custody.
d) The registry shall communicate the order to the 7th respondent forthwith.