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2010 Supreme(Ker) 616
High Court of Kerala
THE HONOURABLE MR. JUSTICE R. BASANT & THE HONOURABLE MR. JUSTICE M.L. JOSEPH FRANCIS
Lini
Versus
The District Magistrate, Kollam & Others
WP(Crl.)No.377 of 2010 (S)
Decided on : 29-10-2010
Headnote:
Kerala Anti Social Activities Act, 2007 - Section. 3 - Officers of sponsoring and detaining authority are not conversant in Malayalam - Petitioner has come to this Court with this petition for issue of a writ of habeas corpus to direct the production and release of her husband Earnest who stands detained preventively as per Ext.P1 order dated 15.9.2010 passed respondent - District Magistrate, under Sec.3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 - cases 3,4 and 5 are concerned, there is no valid cognizance taken by the Courts. The offences alleged in cases 3,4 and 5 referred above are all under Kerala Protection of River Bank and Regulation of Removal of Sand Act, 2001(for short 'the Kerala Sand Act'.). The learned counsel for the petitioner argues that as a matter of fact reliance is placed both in Ext.P2, report of the sponsoring authority and Ext.P1 order of the detention authority, on the fact that cognizance has been taken by Courts concerned - Held, burden rests heavily on the shoulders of the party who alleges malafides to assail the order to prove the plea of malafides. The petitioner has an assertion that he is a functionary of the Indian National Congress. According to him he is an office bearer of INTUC. What functionary he is of the Indian National Congress is not revealed. What office he holds in the INTUC is also not revealed. There is no assertion or proof that the Indian National Congress or the INTUC had even claimed that the detention of the detenu was calculated to mar their prospects in the election. Vague assertions can only invite vague responses. We are certainly of the opinion that the onerous burden on a party alleging malafide to claim invalidation on the order of detention has not be satisfactorily discharged by the petitioner herein - Petition is dismissed.
Basant, J.
The petitioner has come to this Court with this petition for issue of a writ of habeas corpus to direct the production and release of her husband Earnest (hereinafter referred to as ‘the detenu’) who stands detained preventively as per Ext.P1 order dated 15.9.2010 passed by the 1st respondent – District Magistrate, under Sec.3 of the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred to as ‘the KAAPA’.)
2. In execution of Ext.P1 order dated 15.9.2010 the detenu was taken into custody on 23.9.2010. The order of approval under Sec.3(3) of the KAAPA has already been passed on 5.10.2010. The order under Sec.10(4) of the KAAPA is yet to be passed.
3. The detenu is categorized as a ‘known goonda’ under Sec.2(o) of the KAAPA.
Reliance was placed on 5 cases against the detenu in Ext.P1 order of detention. The detenu was sponsored for detention by the second respondent – Superintendent of Police, Kollam as per Ext.P2 report dated 23.7.2010 submitted by the second respondent. The following are the 5 cases relied on by the first respondent to categorise the detenu as a ‘known-goonda’.
S.N.
Crime No. & Police Station
C.C.No.
Offences alleged
Stage of the Case
1.
Crime No.268/05 Chavara Thekkumbhagam Police Station reported on 18.11.2005
970/06 U/s. 12 r/w 20 of the Kerala Protection of River Bank and Regulation of Removal of Sand Act.
Found guilty and convicted.
2.
Crime No.11/09 Chavara Thekkumbhagam Police Station reported on 4.1.2009
267/10
U/s.341 & 323 of the Indian Penal Code
Pending trial
3.
Crime No.423/09 Chavara Thekkumbhagam Police Station Reported on 23.10.2009
542/10
U/s.12 r/w 20 & 21 of the Kerala protection of River Bank and Regulation of Removal of
Sand Act.
Pending trial
4.
Crime No.72/10 & Chavara Thekkumbagam Police Station reported on 28.1.2010
605/10 U/s.379 & 34 of the Indian Penal Code Pending trial
5. Crime No.220/10 & Chavara Thekkumbhagam Police Station reported on 20.3.2010 579/10 U/s.12 r/w.20 & 21 of the Kerala Protection of River Bank and Regulation of Removal of Sand Act. Pending trial
4. We have heard detailed arguments advanced by the learned senior counsel, Shri. K. Ramkumar for the petitioner and the learned senior Government Pleader Sri. Mohammed Anzar for the respondents. Learned counsel for the petitioner assails the impugned order on 8 specific grounds. We shall now proceed to consider the said 8 specific grounds.
5. First of all it is contended that so far the cases 3, 4 and 5 are concerned, there is no valid cognizance taken by the Courts. The offences alleged in cases 3, 4 and 5 referred above are all under Kerala Protection of River Bank and Regulation of Removal of Sand Act, 2001 (for short ‘the Kerala Sand Act’). The learned counsel for the petitioner argues that as a matter of fact reliance is placed both in Ext.P2, report of the sponsoring authority and Ext.P1 order of the detention authority, on the fact that cognizance has been taken by Courts concerned. Such cognizance is taken admittedly on the basis of final reports submitted by the police. The learned counsel for the petitioner argues that the cognizance taken by the learned Magistrate is not legally valid or justifiable in the light of the decision in Ismayil v. State of Kerala (2010 (3) KLT 706).
6. At the outset we note that Ext.P1 reveals that in all these cases, the final reports (chargesheets) have been filed after investigation by the police and cognizance has been taken by the learned Magistrate. The cognizance taken by the learned Magistrates have not been assailed in any proceedings. At any rate, cognizance taken by the Courts in these 3 cases have not been struck down by any Court. In these circumstances, the mere fact that cognizance, if challenged such challenge may be upheld in the light of the decision in Ismayil v. State of Kerala (supra) is by itself not a valid reason to assail the cognizance taken or the reckoning of those three cases under Section 2(o) of the KAAPA.
7. Th
