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2010 Supreme(Ker) 1
High Court of Kerala
THE HONOURABLE MR. JUSTICE R. BASANT & THE HONOURABLE MRS. JUSTICE M.C. HARI RANI
Sailaja
Versus
State of Kerala, Rep by Addl. Chief Secretary to Government & Others
W.P.(Crl.) Nos.429 of 2009 (S), 456 of 2009 & 462 of 2009
Decided on : 04-01-2010
Only a detenu with a non-2(t) offence can be classified as a known goonda under KAAPA, invalidating orders based solely on 2(t) offences.
Headnote:
Kerala Anti Social Activities (Prevention) Act, 2007 - Section . 2(o) Explanation - illustrious Judges have been of great help and assistance to us to assuage our feelings of discomfort and uneasiness while discharging our duties in this sensitive jurisdiction of preventive detention. We have tried to console ourselves that though we are concerned mostly with known criminals, goondas, rowdies and anti-social elements, we must deal with their cases in the context of what are great themes of freedom, personal liberty and right to live - Petitioners contend that inasmuch as the detenus are not alleged to have committed any non 2(t) offence, they cannot be classified as `known goondas' under Sec.2(o) of the KAAPA and consequently their detention under Sec.3 of the KAAPA classifying them as `known goondas' is legally unsustainable - Held, detaining authorities in these cases have chosen to classify the detenus as known goondas and not known rowdies. Sans negligence/non application of mind, we see no other reason whatsoever. We need only reiterate our view, which we have already stated with emphasis in many cases earlier, that the executive must equip itself with the requisite competence and efficiency and live upto the challenge and mission before it if the legislative willingness to concede such draconian powers to the executive, in the yearning to ensure societal safety and security, were to be meaningful and useful to the polity.appeal is allowed.
Basant, J.
We commence by making reference to the celebrated observations of Justice Frankfurter in the dissenting judgment in U.S. v. Rabinowitz (339 U.S. 56 [1950] that:
"it is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people".
We also draw inspiration from the observations of the U.S. Court of Appeals in Kopf v. Skyrm (993 F2d 374) that the defender of constitutional liberty.
"must share his foxhole with scoundrels of every sort, but to abandon the post because of the poor company is to sell freedom cheaply".
We remind ourselves of the words of Justice Chandrachud in Rattan Singh v. State of Punjab and others [(1981) 4 SCC 481] also that the tribe of the detenu may deserve
"no sympathy since its activities have paralysed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic setup, it is essential that at least those safeguards are not denied to the detenu".
2. These observations of the illustrious Judges have been of great help and assistance to us to assuage our feelings of discomfort and uneasiness while discharging our duties in this sensitive jurisdiction of preventive detention. We have tried to console ourselves that though we are concerned mostly with known criminals, goondas, rowdies and antisocial elements, we must deal with their cases in the context of what are great themes of freedom, personal liberty and right to live.
3. Has mind been applied properly before passing the impugned orders of preventive detention under Sec.3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (for short 'the KAAPA')? Do Sec.2(t) offences (alone) justify the classification of a 'rowdy' as a 'known goonda' under Sec.2(o) of the KAAPA? Is it essential that there must at least be one 'non 2(t) offence' also, alleged or proved before a 'rowdy' is reckoned as a 'known goonda' and his preventive detention ordered under Sec.3 of the KAAPA? How are the words "can also be taken into consideration as an instance along with the other cases" in the Explanation to Sec.2(o) of the KAAPA to be understood and interpreted?
4. These interesting questions arise for determination in these three writ petitions which are taken up for consideration together. We have heard the learned counsel Sri. Rajagopalan Nair and Sri. Dileep P. Pillai appearing for the petitioners in these cases as also Sri. K.K. Ravindranath, the learned Additional Director General of Prosecutions. We are proceeding to dispose of these cases by this common judgment.
5. The identical crucial fact vitally relevant in all these three cases is that the detenu on whose behalf these petitions have been filed by the petitioners – their close relatives, to quash the orders of preventive detention passed under Sec.3 of the KAAPA, face allegations in more than two cases in pending prosecutions before courts – of having committed offences falling within the sweep of Sec.2(t) of the KAAPA. They are reckoned as 'known goondas' by the detaining authority. Significantly, there is no allegation whatsoever against them of their having committed any offence other than the offences falling within the sweep of Sec.2(t) of the KAAPA. The tabular column given below carries the vital details:
Sl.No: 1, 2, 3 WP(Cri) No.: 429/09; 456/09; 462/09 Total No. of cases: 6, 11, 5 No. of cases charge sheeted: 5, 8, 4 No. of cases pending investigation: 1, 3, 1 No. of cases involving 2(t) offences only: 6, 11, 5 No. of cases involving non 2(t) offences: Nil, Nil, Nil Classification by the sponsoring authority: Known goonda, Known goonda, Known goonda Classification by the detaining authority: Known goonda, Known goonda, Known goonda
6. The learned counsel for the petitioners contend that inasmuch as the detenus are not alleged to have committed any non 2(t) offence, they
