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2015 Supreme(Ker) 832
IN THE HIGH COURT OF KERALA AT ERNAKULAM
V.K.MOHANAN AND RAJA VIJAYARAGHAVAN, JJ.
ABDUL RAZACK A.A. – PETITIONER
Vs.
STATE OF KERALA - RESPONDENT
W.P(Crl.).195 of 2015
Decided On : 30.7.2015
Advocate Appeared:
FOR THE APPELLANT : SRI.B.KUMAR (SR), SRI.JOSE ANTONY, SRI.O.V.MANIPRASAD
FOR THE RESPONDENT: GOVERNMENT PLEADER SMT.KOCHUMOL KODUVATH, DIRECTOR GENERAL OF PROSECUTION
Headnote:
Kerala Anti-Social Activities (Prevention) Act, 2007 - Section 3 - Detention order - Challenged - Public tranquillity - Breach of 'law and order' or has acted in a manner likely to cause disturbance to 'public order' - Determination of activities under - Held, An order of detention under the Act would be valid if the activities of a detenu affect 'public order' but would not be so where the same affect only the maintenance of 'law and order - effect of the approval by the State Government is that from the date of such approval, the detention is authorised by the order of the State Government approving the order of detention and the State Government is the detaining authority from the date of order of approval. It is for the said purpose that S.7(2) of Act 34 of 2007 envisages that the representation against the order of detention is to be made before the Government and also the Advisory Board as the case may be, against his detention - under Article 22(5) of the Constitution and S.7(2) of the KAAPA, while passing orders for detaining "known goondas" or "known rowdies" under S.3 of the Act, will stand discharged by affording an earliest opportunity to make a representation and communication of the availability of such opportunity/right to represent to the Government and before the Advisory Board against his detention. The detaining authority is not bound, as per the scheme of Act 34 of 2007, to inform the detenu of his right to represent before the detaining authority himself, as there exist no such right
Raja Vijayaraghavan. J.
1. This petition is filed under Art.226 of the Constitution of India, by the petitioner, praying for issuance of a writ of habeas corpus to direct release of his brother, Mohammed Nisham, son of A.B.Abdul Khader (late) (hereinafter referred to as "the detenu"), who is detained as per order dated 9.3.2015 passed by the 2nd respondent u/s 3 of the Kerala Anti Social Activities (Prevention) Act, 2007 (hereinafter referred to as "Act 34 of 2007").
2. The impugned detention order which is produced as Ext.P1 was passed by the 2nd respondent on the basis of three reports which are produced as Ext.P3, P4 and P5 dated 2.3.2015, 4.3.2015 and 9.3.2015 respectively, submitted by the 3rd respondent to the 2nd respondent u/s 3 (1) of the Act 34 of 2007. It is revealed from Ext.P3 that a report dated 28.2.2015 was submitted by the Circle Inspector of Police, Peramangalam, the subordinate Officer of the 3rd respondent, requesting for initiation of action against the detenu under the Act. When Ext.P1 order dated 9.3.2015 was passed by the 2nd respondent, the detenu was in judicial custody in Crime No.173 of 2015 of Peramangalam police station as he was arrested in the said case on 29.1.2015. Ext.P1 detention order was served on the detenu while he was in judicial custody. The order of approval was passed on 19.3.2015 u/s 3(3) of the Act and Ext.P23 order of confirmation was passed on 23.4.2015.
3. Initiation of proceedings against the detenu is on the basis that he is a "known rowdy", as defined under S. 2(p) of the Act 34 of 2007. As per Ext.P1 detention order, the sponsoring and detaining authority placed reliance on seven crimes committed by the petitioner. The details are as under:-
Sl.No.
Crime No. With police station
Offences
Date of Occurrence
Date of Charge sheet
Current Status of the case.
1
Crime No. 254 of 2014 of Pulikeshi Nagar police station
U/ss 506,504, 323,324,354,376,420, IPC & 66 (A) of IT Act
24.07.2014
15.12.2014
Pending trial
2
Crime No. 147 of 2015 of Thrissur East police station
U/s 506(i) IPC & 118(d) KP Act
8.1.2015 &
9.1.2015
28.2.2015
Pending trial
3
Crime No.677 of 2012 Viyyur police station
U/s 452,323,324, 326,308,506(ii) r/w 34 IPC
28.6.2012
28.7.2012
Quashed by the High Court
4
Crime No. 950 of 2013 of Thrissur East police station
U/s 354(i)(ii) IPC 66(A) & (B) of IT Act
20.9.2013
Quashed by the High Court
5
Crime No. 245 of 2012 of Viyyur police station
U/s 338 IPC
30.4.2012
Pleaded guilty
6
Crime No. 1254 of 2013 of Thrissur East police station
U/s 353,354, 506(ii),294(b),279 IPC & 185 MV Act
13.6.2013
21.6.2013
Pending trial
7
Crime No. 173 of 2015 of Peramangalam police station
U/s 341, 294(b),323, 324,326,506(i),302 IPC
29.1.2015
Pending Investigation
8
Crime No. 94/2015 of Cubbon Park, Police station, Bangalore
U/s 279,323, 506,307,IPC
21.12.2014
Pending Investigation
9
Crime No. 688 of 2013 of Peramangalam police station
U/s 23JJ (Care & Protection of Children) Act r/w 180 MV Act
10/04/13
Pending trial
4. Out of the above, cases numbered as Sl. Nos. 1 to 7 were considered for arriving at the subjective satisfaction by the 2nd respondent . The crimes numbered as Sl No's 8 and 9 were not reckoned for arriving at the objective satisfaction.
5. We have heard the learned Senior counsel appearing for the petitioner Sri.B. Kumar, as instructed by Sri.O.V.Maniprasad , for the petitioner and the learned Director General of Prosecution, Sri.Asaf Ali , for the respondents.
6. The learned Senior counsel, at the outset itself, submitted that the petitioner is not challenging his classification as a "known rowdy". Apparently, the crimes which were pending as against the petitioner on the date of issuance of Ext.P1 we
