2009 (10) TMI 982 - HC - Income Tax

Summary

Issues Involved:
1. Nature and quality of consideration for a representation made by a detenu under Article 22(5) of the Constitution of India and Section 7(2) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA).
2. Validity of the order of detention passed under Section 3(1) of the KAAPA.
3. Relevance and impact of the cases cited in the detention order.
4. Proper application of mind by the sponsoring and detaining authorities.
5. Proper application of mind by the Government before passing the order of approval under Section 3(3) of the KAAPA.
6. Consideration of the detenu's representation by the Government.

Issue-Wise Detailed Analysis:

1. Nature and Quality of Consideration for Representation:
The judgment discusses the importance of the nature and quality of consideration that a representation made by a detenu must receive from the Government. It emphasizes that the detenu has a right to make a representation under Article 22(5) of the Constitution and Section 7(2) of the KAAPA, and this representation must be given real and proper consideration by the Government. The Court refers to precedents to highlight that the representation must be considered impartially and with an unbiased mind, though a detailed speaking order is not necessary.

2. Validity of the Order of Detention:
The petitioner, the wife of the detenu, challenges the order of detention passed under Section 3(1) of the KAAPA. The Court examines whether the detaining authority had valid grounds to pass the detention order and whether the detenu was rightly classified as a "known goonda" or "known rowdy." The Court acknowledges that cases 1 and 5 should not have been considered as they had already ended in acquittal or were closed, and case 5 under Section 160 IPC does not qualify the detenu as a "known goonda" or "known rowdy."

3. Relevance and Impact of the Cases Cited in the Detention Order:
The Court evaluates the relevance of the remaining three cases (cases 2 to 4) in determining whether the detenu falls within the definition of "known goonda" or "known rowdy." The Court concludes that these cases, which were pending at the time of the detention order, are sufficient to classify the detenu under the relevant sections of the KAAPA. However, the Court emphasizes that the acts alleged in these cases must pose a threat to public order, not just law and order.

4. Proper Application of Mind by Sponsoring and Detaining Authorities:
The petitioner argues that there was no proper application of mind by the sponsoring and detaining authorities. The Court agrees that the authorities erred in considering cases 1 and 5, but it holds that this error does not invalidate the detention order because the remaining three cases justify the order. The Court also examines other contentions raised by the petitioner, such as the use of the term "rioting cases" and the inconsistency between the sponsoring and detaining authorities' classification of the detenu.

5. Proper Application of Mind by the Government Before Passing the Order of Approval:
The petitioner contends that the Government did not properly apply its mind before passing the order of approval under Section 3(3) of the KAAPA. The Court considers the arguments and precedents, concluding that while the Government must consider all materials before granting approval, it is not required to pass a detailed speaking order. The Court finds that the Government's order of approval, Ext.P5, does not show a lack of proper consideration.

6. Consideration of the Detenu's Representation by the Government:
The petitioner argues that the Government did not properly consider the detenu's representation, Ext.R2(m), before passing the order of approval. The Court examines the representation and the Government's response, Ext.P8, and concludes that the Government failed to give real and proper consideration to the representation. The Court highlights that crucial grounds raised by the detenu, such as the factual inaccuracies in the detention order, were not addressed in Ext.P8.

Conclusion:
The Court allows the writ petition, finding the continued detention of the detenu invalid and unjustified due to the Government's failure to properly consider the detenu's representation. The Court orders the immediate release of the detenu unless he is required to be detained in any other case. The judgment emphasizes the need for the Government to ensure procedural compliance and proper consideration of representations to uphold the rights of individuals under preventive detention laws.