The detaining authority must consider all relevant circumstances, including the pendency of security proceedings, before ordering preventive detention.

Basant, J.

Is the pendency of security proceedings against a detenu under Chapter VIII of the Code of Criminal Procedure a relevant circumstance to which mind of the detaining authority must be applied before ordering preventive detention under the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as ‘the KAAPA’)?

Does the blissful ignorance of the pendency of such proceedings and the total omission/failure on the part of the detaining authority to apply his mind to that aspect vitiate the order of preventive detention?

Does the conduct of the sponsoring authority of totality withholding/suppressing such information from the detaining authority vitiate and justify the invalidation of the order of preventive detention?

These questions arise for consideration in this writ petition.

2. Fundamental facts are not disputed. The petitioner concededly falls within the definition of known rowdy in Section 2(p) of the KAAPA. The Circle Inspector of Police, Chavara submitted Ext.P4 report dated 19.5.2010 to the third respondent, the Superintendent of Police suggesting the invocation of the KAAPA against the alleged detenu, Jojo, S/o. John. The third respondent, the Superintendent of Police on receipt of Ext.P4 submitted Ext.P3 report dated 28.5.2010 under Section 3(1) of the KAAPA to the second respondent, i.e., the District Magistrate, Kollam. The District Magistrate, Kollam on receipt of Ext.P3 report dated 28.5.2010 proceeded to pass Ext.P1 order of preventive detention dated 11.6.2010. The second respondent also passed Ext.P2 grounds of detention dated 11.6.2010. The detenu who is the son of the petitioner herein was accordingly taken into custody and detained with effect from 18.10.2010. The order of detention was approved by the Government under Section 3(3) of KAAPA. Later, the order was confirmed by the Government under Section 10(4) of the KAAPA. The detenu will have to remain in custody till 17.4.2010 as per the order passed under Section 10(4).

3. It will be apposite straightway to note that five cases are relied on by the authorities to categorise the detenu as a known rowdy. They are:

1) Crime No.75 of 2008 of Sakthikulangara Police Station about an incident which took place on 22.2.2008.

2) Crime No.248 of 2008 of Sakthikulangara Police Station about an incident which took place on 16.6.2008.

3) Crime No.443 of 2008 of Sakthikulangara Police Station about an incident which took place on 9.11.2008.

4) Crime No.390 of 2009 of Sakthikulangara Police Station about an incident which took place on 15.9.2009.

5. Crime No.281 of 2010 of Sakthikulangara Police Station about an incident which took place on 26.3.2010.

4. As no serious contention is raised before us that the detenu will not fall within the detention of known rowdy under Section 2(p) of the KAAPA, we are not proceeding to advert in detail to the said five cases.

5. We have heard the learned counsel for the petitioner and the learned Government Pleader in detail.

6. Learned counsel for the petitioner has raised several contentions to assail the impugned order. In the nature of the contentions raised, we are of the opinion that it is not necessary to advert to all the contentions raised. Suffice it to say that the main and importance grounds of challenge are as follows:

1) There has been no proper, real and effective application of mind by the detaining authority to the relevant facts before passing the order of preventive detention. The fact that security proceedings under Section 107 of the Cr.P.C. had been initiated against the detenu under Ext.P18 FIR and Ext.P19 report was not adverted to by the detaining authority before taking the decision to order preventive detention.

2) The sponsoring authority is guilty of suppression/withholding of the relevant and vital fact that security proceedings under Section 107 of the Cr.P.C. had already been initiated against the detenu in the report under Section 3(1) of the KAAPA.

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