9911796707
TMI Blog2009 (10) TMI 982X X X X Extracts X X X X X X X X Extracts X X X X ..... etenu. 2. The petitioner is the wife of K. Ravi, the detenu. The detenu was involved in as many as 5 cases; the details of which are given below: 3. The Superintendent of Police, Kasargod, by his report under Section 3(1) of the KAAPA dated 23.01.09 [copy produced as Ext.R2(g)], submitted a proposal to the 2nd respondent (District Magistrate) to invoke the powers under Section 3(i) of the KAAPA to detain the detenu. Accepting the report of the sponsoring authority, Ext.P1 order of detention was passed on 16.02.2009. The order could not be executed for some time. Finally in execution of Ext.P1 order, the detenu was arrested and detained on 02.07.2009. Copies of the order and grounds were furnished to the detenu in due time and the detenu submitted Ext.R2(m) representation dated 08.07.09 to the Government. That representation submitted through the prison authorities was received by the prison authorities on 08.07.09 and it was forwarded to the Government. The Government allegedly received the same on 13.07.09. In the meantime, Ext.P5 order of approval dated 10.07.09 was passed by the Government under Section 3(3) of the KAAPA. After receipt of Ext.R2(m) representation, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had also come to an end on 18.11.2008 on which day plea of guilty of the detenu was accepted and a fine of ₹ 100/- was imposed on him. Both these cases were not current and live on the dates of Ext.R2(g) and Ext. P1. The sponsoring authority erred grossly in assuming that these cases are pending. The detaining authority also erred in accepting the sponsoring authority's report that these 2 cases are pending. For the reason that these 2 cases were not pending on the dates of Ext.R2(g) and Ext.P1, the action of the sponsoring authority and the detaining authority is vitiated. Moreover it is submitted that the 5th case in which allegation is raised only under Section 160 I.P.C is not a case which can bring an offender within the sweep of the definition of a 'known goonda or known rowdy' under Section 2(o) or 2(p)of the KAAPA. 6. We are in ready agreement with the learned Counsel for the petitioner. Cases 1 and 5 having been disposed of long prior to Ext.R2(g) and Ext.Pl, those should not have been taken into reckoning while considering whether the detenu is a known goonda or known rowdy on 16.02.09, the date of the order of detention. Further, the Counsel is we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d successful prosecution by exploiting the safeguards provided in general law to protect the average citizens against misuse of authority by official functionaries. (2) The existing laws are inadequate in preventing and controlling the organised criminal activity. Hence it became imperative to enact a legislation to prevent and control the organised anti-social activities in the State. 11. The Counsel further contends that the definition of a 'goonda' in Section 2(j) as also the definition of 'antisocial activity' in Section 2(a) and the definition of rowdy in Section 2(t) must assume importance and significance in this context. We extract below Section 2(a), 2(j) and 2(t) of the KAAPA. Section 2(a). 'And Social Activity' means acting in such manner as to cause or likely to cause, directly or indirectly, any feeling of insecurity, danger or fear among the general public or any section thereof, or any danger to the safety of individuals, safety of public, public health or the ecological system or any loss or damage to public exchequer or to any public or private property or indulges in any activities referred in Clauses (c), (e), (g), (h), (i), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s reliance on the decision of a Division Bench of this Court in Nisha Salim v. State of Kerala 2009 (3) KLT 22. In particular, reliance is placed on para.8 and 8(a) of the said decision, which we extract below. Para.8: It is undoubtedly true that personal liberty of a person cannot be trifled with by the Police or the executive authority at their whims and fancies. The power of detention has to be exercised by an authority authorised under law with utmost diligence and caution. The order of detention has to satisfy the test of reasonableness and fair play. The detaining authority has to arrive at the subjective satisfaction about the imperative need to detain a person after due application of mind. All the inputs gathered by the detaining authority must lead to the irresistible conclusion that the freedom of movement enjoyed by the detenu may be misused by him to create havoc or breach of peace in the society, thereby putting the peaceful life of the people in peril. It would be a shame if the law enforcing authorities throw up their arms in desperation saying that a particular individual in a given area or locality cannot be controlled by the Police force. The Indian Penal Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to prevent him from indulging in anti-social activities, contends counsel. 16. It will only be apposite straight away to consider the precedents relied on by the learned Counsel for the petitioner. The Counsel first of all relies on the observations of the Supreme Court in Arun Ghosh v. State of W.B. (1970) 1 SCC 98 (para. 15) which is stated with approval in the later decision Ajay Dixit v. State of U.P (1984)4 SCC 400. We extract the same below: It means therefore that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. The French distinguish law and order and public order by designating the latter as order publique. The latter expression has been recognized as meaning something more than ordinary maintenance of law and order. Justice Ramaswami in Writ Petition 179 of 1968 drew a line of demarcation between the serious and aggravated forms of breaches of public order which affect the community or endanger the public interest at large from minor breaches of peace which do not affect the public a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and may have an impact on public order . Even certain murder committed by persons in lonely places with the definite object of promoting the cause of the party to which they belong may also affect the maintenance of 'public order'. 18. It is now trite that before a valid order of detention is passed under Section 3 of the KAAPA, the detaining authority must first entertain the requisite twin satisfactions. Firstly the initial objective satisfaction must be entertained that the detenu is a known goonda or known rowdy. Then the authority must entertain the latter subjective satisfaction that detention of the detenu is necessary to prevent such detenu from indulging in anti-social activity. Only when both satisfactions are validly entertained on the basis of the materials available before him, can the detaining authority pass a valid order of detention under Section 3 of the KAAPA. 19. We are certainly of the opinion that while considering the entertainment of the latter subjective satisfaction, every detaining authority is bound to consider whether the acts complained of against the detenu do really pose a threat to maintenance of public order. When the acts allege ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pressions in 2(j) (inclusive latter part) and 2(o) as also 2(t) and 2(p) do not at all demand that the offences referred to therein must also be instances of organised crime or that they must threaten public order. Such a requirement cannot be read into the definition of 'rowdy' in Section 2(t) or known rowdy in 2(p)or even the definition of goonda in Section 2(j) (inclusive latter half) and known goonda in 2(o). Of course, we repeat that while considering the latter subjective satisfaction, it will certainly have to be considered whether the subjective satisfaction of the need to preventively detain the detenu is entertained on grounds/past conduct which are likely to threaten public order in future. 22. In these circumstances, we are unable to accept the challenge raised on ground No. II that the detenu cannot be held to be a known goonda or known rowdy for the reason that cases 2 to 4 referred above do not reveal instances of organised crime. The challenge on ground No. II therefore fails. 23. Whether the acts alleged would reveal a threat to public order shall now be considered in detail for the purpose of considering the challenge under ground No. III. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is not justiciable. The fact that the sponsoring authority and the detaining authority reckoned these allegations as sufficient to constitute a threat to public order warranting detention cannot, at any rate, be held to be as sufficient ground to interfere with the impugned order. The plea that subjective satisfaction could not have been entertained at all cannot be accepted. The challenge raised on ground No. III must also, in these circumstances, fail. Ground No. IV 28. The learned Counsel for the petitioner has brought to the notice of the Court several circumstances to contend that there has been no proper application of mind either by the sponsoring authority or the detaining authority. The Counsel relies on precedents to impress upon the Court the duty of the sponsoring authority to place all relevant facts before the detaining authority and the duty of the detaining authority to consider all relevant facts and circumstances before passing the order of detention. The Counsel first of all contends that mind of the sponsoring or detaining authority was not applied to the circumstance that 2 out of the 5 cases are certainly cases which cannot be taken note of, i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sponsoring authority to the detaining authority, there is reference to rioting cases . The learned Counsel contends that this expression has been employed unjustifiably by the sponsoring authority and not one of the 5 cases relied on by the sponsoring and detaining authority refers to a case of rioting. We do take note of this submission. It is true that no allegations are raised of the detenu having committed the offence of rioting in any of the 5 cases. The detaining authority has not relied on the allegation that rioting has been committed. Moreover a careful reading of Ext.R2(g) cannot lead to the conclusion that the expression rioting cases was used by the sponsoring authority to indicate that the detenu was facing prosecution in any Case for the offence of rioting. The detaining authority has not borrowed that expression. He has not proceeded on the assumption that the detenu is allegedly involved in rioting cases and in these circumstances the contention that there has been no proper application of mind by the sponsoring and detaining authority for the above reasons cannot also succeed. The challenge raised on Ground No. 4 does also, in these circumstances, fail. Gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order under Section 3(3). The Counsel particularly relies on the following observations in para.34. Para.34: ...The said provision further prescribes that no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government. This would show that it is the approval of the State Government which gives further life to the order which would otherwise die its natural death on the expiry of twelve days after its making. It is also the requirement of Section 3(4) that the report should be accompanied by the grounds on which the order has been made and such other particulars as, in the opinion of the said officer, have a bearing on the matter which means that the State Government has to take into consideration the grounds and the said material while giving its approval to the order of detention. The 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 the order of approval.... Approval, actua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... District Magistrate, Tripura. The question that came up for consideration in that case was whether it was obligatory that an order of approval should be furnished to the detenu. The learned A.D.G.P. points out that the Constitution Bench of the Supreme Court in that decision had taken the view that even the omission to furnish a copy of the order of approval does not vitiate or lead to invalidation of the detention. The following passages in paras.9 and 10 are relied on by the learned A.D.G.P. Para.9: ...Section 3(3) of the Preventive Detention Act does not specify that the order of approval is anything more than an administrative approval by the State Government. If this be so the necessity of communication of the approval does not arise with that strictness as does the decision Under Rule 30A(8) of the Defence of India Rules. Para. 10: ...The scheme of the Preventive Detention Act is merely to approve the original detention by the District Magistrate and the continued detention after 12 days is not under any fresh order but the same old order with the added approval and what the detenu can question, if he be so minded, is the original detention and not the approval ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d must precede an order of approval under Section 3(3). But we are unable to agree that the order of approval must be more speaking than Ext.P5. The contention that Ext.P5 does not speak sufficiently cannot be accepted. 38. We now come to the contention that Ext.R2(m) was not considered by the Government before passing Ext.P5. The learned Counsel for the petitioner contends that after the detention of the detenu on 02.07.2009, he had promptly made Ext.R2(m) representation to the Government. That representation is dated 08.07.2009 and the same was handed over to the prison authorities on the same date, i.e. 08.07.2009. Ext.P5 order of approval is seen passed on 10.07.2009. Going by the stipulations of Section 3(3), the Government could have waited till 20.07.2009 to pass the order of approval. According to the learned Counsel, there was no need to pass the order under Section 3(3) on 10.07.2009. The representation had been handed over to an officer of the State (Jail authorities) on 08.07.2009. The Counsel contends that non-consideration of the representation dated 08.07.2009 (Ext.R2(m)) by the Government before it passed Ext.P5 order is fatal and that must invalidate Ext.P5 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spute earlier as to whether the consideration of this representation is an administrative act or quasi-judicial act. There has been dispute as to whether an unbiased independent authority ought to consider such representation or not. There has also been dispute as to whether there is a right of hearing before such representation is considered and disposed of. There has also been dispute as to whether the representation must be disposed of by a speaking order giving reasons. 43. All those controversies now appear to have been settled. The Constitution Bench of the Supreme Court in H. Saha v. State of West Bengal AIR 1974 SC 2154 has settled the controversy and it has clearly been held that there is no right of hearing or an obligation to pass a speaking detailed order. We think it sufficient to refer to para.26 of H. Saha v. State of West Bengal, which reads as follows: Para.26: The opinion of the Board as well as the order of the Government rejecting the representation of the detenu must be after proper consideration. There need not be a speaking order. There is also no failure of justice by the order not being a speaking order. All that is necessary is that there should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the charge and essential answers in Ext.R2(m) representation have been impartially considered by the Government. The Government in passing Ext.P8 order has dealt with the representation in a casual and mechanical manner, laments the petitioner. The Government has not brought to bear on the consideration of the representation an unbiased mind. The zealous scrutiny of the representation which John Martin v. State of W.B. insists has not been given in the instant case, contends the learned Counsel for the petitioner. 47. The learned A.D.G.P. on the contrary, contends relying on the very same decisions that it is not necessary at all for the Government to pass a detailed speaking order. According to the learned A.D.G.P., Ext.P8 order reveals anxious consideration of the representation. A real and proper consideration as insisted by H. Saha v. State of West Bengal has been given to the representation. Before rejecting the representation under Ext.P8 order, anxious and zealous scrutiny has been made by the Government, contends the learned A.D.G.P.... 48. We must now consider whether Ext.P8 reveals (or can lead us to presume) that such real and proper consideration has been r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sary and it may not be possible to insist that each such contention raised in Ext.R2(m) must have been considered and answered. But at any rate, consideration by the Government cannot be casual or mechanical. Real and proper consideration must be given to the representation. Otherwise it would result in deprivation of the valuable right of the detenu to make a representation to the Government and to request the Government to revoke or modify the order passed against him. As held in Bhut Nath Mete v. State of W.B. answers of the detenu in the representation (Ext.R2(m)) must have been considered impartially and such consideration must be self evident from the order. 51. We are unable to persuade ourselves to agree that Ext.P8 reveals such consideration which is insisted by the precedents referred above. The sure test for us to decide whether there has been proper consideration or not is the omission/failure to refer to the contention that cases 1 and 5 referred above should not have been taken into consideration. We agree with the learned Counsel for the petitioner that the very same Ext.P8 order (with a change in the date of representation) can be used by the Government to reje ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
