Allowed

Vinija v. State of Kerala

Kerala HC18 Jun 2009WP(Crl.)/185/2009

Case brief

AI extract

What is this about?

The Court interpreted the proviso to Section 2(o)(ii) of the Kerala Anti-social Activities (Prevention) Act, ruling that 'witnesses' must mean 'non-police witnesses'. Consequently, detaining a petitioner's husband as a known goonda based on police seizures witnessed only by police personnel was held invalid.

What did the court decide?

The order of detention was set aside, and the detenu was directed to be set at liberty forthwith.

Vinija Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE R.BASANT &

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THE HONOURABLE MRS. JUSTICE M.C.HARI RANI

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THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931

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WP(Crl.).No. 185 of 2009(S)

PETITIONER:

VINIJA,AGED 29,W/O.SURESH @ SURA, RAMANTHARA HOUSE,CHALAKKAL,PUTHENVELIKKARA VILLAGE ERNAKULAM DISTRICT.

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BY ADV. SRI.JAISON JOSEPH SRI.M.N.SANJITH

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RESPONDENTS:

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THE STATE OF KERALA,REP.BY THE CHIEF SECRETARY,GOVERNMENT SECRETARIAT,TRIVANDRUM.

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THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT HOME DEPARTMENT,GOVERNMENT SECRETARIAT, TRIVANDRUM.

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THE DISTRICT COLLECTOR

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(DISTRICT MAGISTRATE)ERNAKULAM DISTRICT.

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THE SUPERINTENDENT OF POLICE,ERNAKULAM RURAL, ALUVA.

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THE SUPERINTENDENT,CENTRAL PRISON, VIYYUR.

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SUB INSPECTOR OF POLICE,CHENGAMANAD POLICE STATION,ERNAKULAM DISTRICT. BY ADDL.D.G.P. MR. RAVINDRANATH &

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GOVERNMENT PLEADER MR.K.J. MOHAMMED ANZAR FOR R1 TO 6

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THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 18/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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'CR'

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R.BASANT & M.C.HARI RANI, JJ.

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-------------------------------------------------W.P.(Crl)No.185 OF 2009

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----------------------------------------------------DATED THIS THE 18^th DAY OF JUNE, 2009

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J U D G M E N T

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Basant, J.

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Should the constitutional commitment to human rights, personal liberty and freedom of the individual persuade this Court to read the expression “in the presence of witnesses” in the proviso to Section 2(o)(ii) of the Kerala Anti-social Activities (Prevention) Act (hereinafter referred to as the KAAPA) as “in the presence of non-police witnesses”? This is the short question that arises for consideration in this Writ petition.

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To the crucially vital and relevant facts first. The petitioner's husband Suresh @ Sura is detained under Section 3 of the KAAPA. He is alleged to be a known goonda. He is involved in as many as six crimes. They all relate to offences punishable under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001(hereinafter referred to as the Sand Act). The vital details about those six crimes are given below.

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*Sl.*	*F.I.R.NO.*	*DATED*	*Mahazar*	*Mahazar witness*
*No.*	*(I)*	*(II)*	*prepared by* *(III)*	*(IV)*
a	Crime No.156/07 Chengamanad P.S.	08/03/07	T.B.Vijayan, S.I.of Police	1.H.C.5826, Jayachandran Chengamanad P.S. 2) P.C.8270, Jiby,Chengamand P.S.
b	Crime No.705/07 of Chengamanad P.S.	26-8-07	T.B.Vijayan S.I.of Police	1)M.V.Sency,A.S.I.of Police Chengmanad P.S. 2)H.C.7307, Viswambaran Chengamanad P.S.
c	Crime No.256/08 of Chengamanad	01/04/08	M.V.Sency A.S.I.of Police	1)H.C.7365, Aji Jacob Chengamanad 2) P.C.8454, Johny Chengamanad P.S.
d	Crime No.257/08 of Chengamanad	01/04/08	M.V.Sency A.S.I.of Police	1) H.C.7365,Aji Jacob Chengamanad 2)P.C.8454,Johny Chengamanad P.S.
e	Crime No.542/08 of Chengamanad	04/07/08	C.Jayakumar S.I.of Police Chengamanad P.S.	1)A.S.I.Vijayan, A.S.I.of Police Chengmanad P.S. 2) DVR HC 6704,Chakkappan Chengamanad P.S.
f	Crime No.861/08 of Chengamand	11/10/08	C.Jayakumar S.I.of Police Chengamanad P.S.	1)A.S.I.Vijayan, A.S.I.of Police Chengamanad P.S. 2)DVR HC 6704, Chakkappan Chengamanad P.S.

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3. According to the respondents the detenu falls within

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the definition of a known goonda under Section 2(o)(ii) of the

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KAAPA. Report dated 2.3.2009 was submitted by the 4^th respondent to the 3^rd respondent and the 3^rd respondent by order of detention dated 17.3.2009 (Exhibit P1) directed preventive detention of the said Suresh under Section 3(2) of the KAAPA. Approval was later granted by the Government under Section 3 (3) of the KAAPA. The matter was referred to the Advisory Board. The Advisory Board recommended continued detention. The Government has subsequently confirmed the order of detention.

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The petitioner has come to this Court with a prayer that a writ of habeas corpus may be issued to produce her husband Suresh before this Court and to set him free, after setting aside the order of detention passed.

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What are the reasons? Various reasons are urged. But, we deem it necessary that only the first contention need be considered in detail.

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The contention is that the alleged detenu is not a known goonda falling within the sweep of the definition in Section 2(o) of the KAAPA. All the six crimes are initiated on the basis of

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reports of seizure submitted by police officials shown in column (III) of the statement above. They all relate to seizure of sand by such seizing police officials. All those seizures are on the basis of mahazars prepared by the seizing police officials and admittedly and significantly, in all the six cases, the mahazars are attested only by witnesses who are police officials shown in column (IV) of the statement above. The learned counsel for the petitioner contends that the alleged seizure made in the presence

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of witnesses who are all police officials cannot help the respondents to contend that the detenu is a known goonda under the proviso to Section 2(o)(ii). This in short is the contention raised.

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The learned Additional Director General of

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Prosecutions contends that the seizures have been effected in the presence of the witnesses and sand under the Kerala Sand Act is the article seized in all these cases. The learned ADGP contends that the language of the proviso does not at all permit this Court to introduce or add words to qualify the expression “witnesses” appearing in the proviso. It is impermissible for this Court to add

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the adjective ”non police” in front of the word “witnesses” in the proviso. Therefore, the challenge raised on this ground must be rejected, contends the learned ADGP.

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We find the question to be legally interesting and practically vital. We deem it necessary that the definition of a known goonda under Section 2(o) must be considered and understood in the background of the constitutional provisions and safeguards, in the light of the scheme under the KAAPA and the concerns which prompted the legislature to enact a provision like Section 2(o) in the KAAPA. We deem it further necessary to understand the legislative history of this definition in the light of the Ordinance which preceded the present Statute.

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Human rights, freedom and personal liberty are the fundamental planks on which the Indian legal system is built. The constitution accepts the same as fundamental values of the republic. It is definitely one of the basic axioms on which the mother of laws is founded. We, the people have reserved to ourselves this must fundamental of all human rights – the right to freedom and personal liberty. It is true that the constitution

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accepts and recognises not only punitive detention, but also preventive detention to serve the societal interest and to give meaning and content for the liberty and freedom of the vast many. The constitution tolerates preventive detention subject to very strict safeguards which are incorporated in Article 22. It is trite now that whether the constitutional guarantees are repeated in the statute or not under Article 22(5) gets transmitted and superimposed on all statutes/legislations dealing with preventive detentions . Courts of law have always adopted an attitude of zealous adherence to the right of the individual for freedom and liberty. In the battle for personal liberty, procedural safeguards and stipulations have been powerful weapons. Even when the courts are satisfied that the detenues are not paragons of virtue, zealous insistence has been made on implicit and literal obedience of the procedural stipulations. A piece of preventive definition law cannot be read, understood and interpreted by a court without lasting and abiding commitment of the cause of freedom and individual liberty, recognised and declared in the Constitution.

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We see the KAAPA as a brave experiment by the Kerala Legislature which has led the legislatures in this country in law making on several subjects. It is possible to discern and perceive an abiding commitment to the societal need to prevent crimes, at the same time zealously ensuring that the freedom and personal liberty of an individual is guarded, protected and respected.

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In the nature of the contentions raised, we requested both counsel to do research and enlighten us as to whether any other legislature had enacted similar provisions. It is submitted before us by the counsel that an exactly identical provision relating to detention (Section 3) or the definition of persons who fall under the sweep of the detention law is not available. We note with happiness that subjectivity has been attempted to be eliminated to the extent possible in the matter of preventive detention. Definite guidelines are given as to who a known goonda and a known rowdy is. The power of detention can be invoked only in respect of such persons. The detaining authority is not given any blanket discretion, but objective satisfaction that

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the detenu comes within the sweep of the definition known goonda or known rowdy is first of all insisted. The subjective satisfaction under Section 3 relates only to the need for detention of such a known goonda or known rowdy. Objectively, it has to be established that a person is a known goonda or known rowdy. Only then the play of Section 3 can start. It will not be inapposite in this context to note that the power of detention is not vested in the police officers – even the seniormost police officers. But the power is vested only in the Government and the District Magistrate, if there be a proper authorisation under Section 3(2). It is also insisted that the Government or the District Magistrate cannot entertain the requisite satisfaction in any manner they choose. They have to entertain the satisfaction only on the basis of reports submitted (i.e; information conveyed) by a police officer not below the rank of a Superintendent of Police. These are evident safeguards against probable and possible misuse of the provisions of KAAPA.

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We do not mean to say that the police have been

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distrusted by the Legislature in the enactment. But, we find an

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earnest endeavour on the part of the Legislature to ensure that no police officer is tempted to misuse or abuse the provisions of the preventive detention law. This appears to us to be eloquent from the fact that though it is insisted that the detention can be only on the basis of information furnished by a superior police officer, the power of detention is conceded only to the Government and the District Magistrate duly authorised. The insistence on approval of the order of detention passed by a District Magistrate made under Section 3(2) by the Government within 12 days is yet another indication of the legislature's anxiety to ensure that this bitter pill is not misutilised or abused.

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13 . Another indication of the caution or the awareness of possible misuse of powers is available in the body of the definition of known goonda under Section 2(o) of the KAAPA. If there be a conviction for the offences specified by a court of law, the legislature accepts that such person can be brought within the sweep of KAAPA. A conviction is not invariable. It is enough, if in the course of investigation or enquiry a competent police officer or other competent authority or court is satisfied about the

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commission of the specified offences. The conclusion after investigation by a police officer is given an exalted position and such satisfaction of the police officer is also taken within the wings of the definition of known goonda under clause (ii) with the insistence that there must at least be two such instances. But, the legislature immediately noted the possibility of a temptation for abuse or misuse by the police officer and that is why it is stipulated that such investigation or enquiry should not be on the basis of complaints initiated by police officers. Both in Section 2 (o) which defines known goonda and in Section 2(p) which defines known rowdy the legislature has adopted identical strategy to prevent possible misuse/abuse.

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In the Ordinance which preceded the Statute, there was a blanket insistence that a complaint initiated by a police officer cannot be taken into cognizance for any purpose while ascertaining whether a person is a known goonda. But, it appears that before the Bill was introduced, the legislature realised the need to carve out a proviso to the main Section. In the proviso to Section 2(o)(ii) which is enacted in the Statute, an

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exception is carved out and it is stipulated that notwithstanding

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the fact that proceedings are initiated on the basis of a report of the police officer, such cases can also be taken into account, provided

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(a) there is a seizure,

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(b) such seizure is by a police officer in the

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presence of witnesses and

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The definition of known goonda in the Ordinance and in the Statute are extracted below.

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2(o) “known goonda” means a goonda who

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had been, for acts done within the previous seven years as calculated from the date of the order imposing any restriction or detention under this Act.

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(i) Found guilty by a competent court or

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authority at least once for an offence within the meaning of the term 'goonda' as defined in clause

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(j) of Section 2; or

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(ii) found in any investigation or

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enquiry by a competent police officer, authority or competent court on complaints initiated by persons other than police officers, in two separate instances not forming part of the same transaction, to have committed any act within the meaning of the term 'goonda' as defined in clause (j) of Section 2.”

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Provided that an offence in respect of which a report was filed by a police officer before a lawful authority consequent to the seizure, in the presence of witnesses, of alcohol, spirit, counterfeit notes, sand, forest produce articles violating copy right, narcotic drugs, psychotropic substances, or currency involved in hawala racketeering may be included for consideration though the report had resulted from an action initiated by a

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police officer.”

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Between the Ordinance and the Bill, the legislature appears to have realised that the State will be rendered ineffective and unequal to the challenge before it in its attempt to prevent commission offences by bootleggers, counterfeiters, depredators of environment, copy right pirates, drug offenders and Hawala racketeers, etc., if Section 2(o) continued in the Statute as it was in the Ordinance. KAAPA signifies the will of the civil society to fight such elements even by regulating the personal freedom and liberty of the individual by tolerating preventive detention. In such cases, proceedings are not normally initiated against offenders on complaints of individuals but on the basis of seizures effected by police officers. That explains the amendment/modification in the definition of known goonda in section 2(o). The fact of seizure of specified articles by the police officer in the presence of witnesses were, it appears, reckoned by the legislature as sufficient safeguard to prevent possible abuse. The legislature did not choose to add any proviso to the definition of known rowdy in Section 2(p)

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which has an identical situation excluding “complaints by police officers”. The embargo against proceedings initiated on complaints by police officers was lifted, reluctantly and partially. It appears to us, for the limited purpose of strengthening the hands of the executive in its fight against defined goonda activities.

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Counsel for the petitioner contends that if this Court does not understand and interpret the expression “in the presence of witnesses” as “in the presence of non-police witnesses”, the zealous motivations of the Legislature would thereby be defeated and frustrated. The whole purpose of the body of definition in Section 2(o)(ii) and the proviso is to ensure that there is no temptation for misuse or abuse by any police officer- in the matter of preventive detention. The legislature was absolutely justified and must be appreciated for having shown such a commitment to prevent the possibility of misuse or abuse. Complaints initiated by police officers do not come into reckoning in the body of the definition in Section 2(o). The proviso has to be read and understood in the context and in the

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light of the text of the body. Of course, the text of the proviso will also have to be considered with due care. No court can attempt to interpret the definition to Section 2(o) without being conscious of the broad principle of law relating to preventive detention and the constitutional commitment to avoid misuse of the provisions relating to preventive detention and secure the sacrosanct fundamental rights of freedom and personal liberty.

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So understood, we feel that it would be abdication of our jurisdiction not to read the expression “in the presence of witnesses” as “in the presence of non-police witnesses”. It would be idle to expect achievement of the objective of the legislature, if this court were to mechanically read the expression “in the presence of witnesses” as “in the presence of any witness” and exalt the seizure effected by a police officer in the presence of subordinate police personnel to be sufficient to be taken cognizance of for the purpose of Section 2(o). That would mean that the police officer can do the mischief, which he cannot achieve by himself by pressing into service the assistance of two of his subordinates. That cannot obviously be the law. The

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purpose of law in the context and in the light of the text of the body of Section 2(o)(ii) and its proviso cannot be achieved unless we understand the expression “witnesses” as “non-police witnesses”.

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The learned counsel for the petitioner points out that while under Section 100 Cr.P.C., there is an insistence that the search must be in the presence of witnesses, there is no such insistence so far as a seizure under Section 102 Cr.P.C. is concerned. Shri Jaison Joseph further points out that under the Sand Act, there is no express stipulation that the seizure must be in the presence of witnesses. A conviction on the basis of such seizure by a police officer is perfectly possible, even if no witnesses had witnessed the seizure at all. While for the purpose of conviction, after elaborate trial, presence of witnesses to witness the seizure is not insisted, the legislature appears to have insisted on the presence of such witnesses to reckon such seizure and consequent prosecution as a relevant ground under section 2 (o). The purpose appears to be very evident. The self-serving

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statement of a police officer that he has effected the seizure is

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not sufficient. Legislature wants assurance for that seizure by the presence of witnesses. That and that alone can be the plain meaning of the stipulations in the body to Section 2(o) read with its proviso. To hold that subordinate police personnel would fall within the sweep of the expression “witnesses” in the proviso would be virtually squandering the protection that has been zealously insisted by the legislature by the enactment of the proviso. Even if there be no witnesses, there can be a conviction

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by a court of law after due trial and thereafter such conviction can be a ground under clause (i) of Section 2(o). But, under clause (ii) of Section 2(o), such a complaint by police officer cannot be taken into reckoning, but it can be taken into reckoning, if the circumstances insisted by the proviso are satisfied.

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The learned ADGP contends that it is impermissible for the court to supply words to the legislature. The legislature which had consciously perceived the need to exclude complaints “initiated by police officers” had chosen to enact the proviso providing adequate safeguard. The legislature felt that seizure

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of articles specified is an assurance against the possible abuse.

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The legislature felt that the additional requirement of the presence of witnesses is sufficient. The legislature which excluded complaints by police officers from the body of Section 2 (o)(ii) did not choose to exclude police witnesses from the sweep of the expression “witnesses” in the proviso. The learned ADGP contends and he relies on principles and precedents relating to interpretation of the statute for this purpose - that it is impermissible for the Court to supply the words “non-police” in front of the word “witnesses” and understand and interpret the law thus. The learned ADGP submits that this Court may not be oblivious to the hazardous circumstances and compulsions under which the police force works and effects such recoveries. It will be impossible to procure independent non-police witnesses when seizure of sand, spirit, hawala, currency, etc. are made at odd hours. The proviso to Section 2(o)(ii) deals with seizure of such articles. The lobbies and mafias which work in these fields are able to arouse mortal fear in the minds of the polity that it becomes very difficult practically for the police to secure

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independent non-police witnesses. Such seizures are effected by committed, brave and conscientious police officers hazarding considerable risks and threats. It would be idle to expect independent witnesses for such seizures. If the expression witnesses in the proviso were read as independent or non-police witnesses that would affect the efficacy of the law. The legislature has advisedly chosen not to eliminate police witnesses from the proviso though complaints by police officers have been eliminated in the body of the Section. This is a conscious legislative act. The same may not be undone by interpretation. When the language is plain, nothing may be added or taken away from the plain language employed by the legislature, submits Shri Ravindranath, the learned ADGP.

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Is the language of the Section very plain? That is the next question to be considered. Police officers may also be witnesses in the appendix to a criminal court judgment. A police officer is also assigned a number in the rank of prosecution witnesses and in that view of the matter police officer may also be a witness before a court of law. There is nothing which says

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that the police officer cannot be reckoned as a witness in such situation. But, the expression witnesses in the proviso to Section 2(o)(ii) cannot be understood in that manner at all. There are seizing police officials and witnesses to witness the seizure. Elementary legal sense must inform the court that in the context in which the expression 'witness' is used in the proviso to Section 2(o)(ii) it is impermissible to understand that expression to include police officers. To hold otherwise would be to defeat the very purpose of the safeguard provided by the Statute and the zealous commitment of the legislature to avoid the temptation of any police officer to misuse and abuse the provisions relating to preventive detention.

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Therefore, we do not reckon this as an instance where the language of the statutory provision is plain and unambiguous. Did the Legislature when it used the word “witnesses” use it in contra distinction to police officials or did they use the expression in the manner in which appendices to criminal court judgments are prepared? Understanding the text and the context properly, we must assume that the expression “witnesses” was not used in

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the proviso to mean and include police personnel also. Such an interpretation would tempt police officers of the mischievous variety, if there be any, to foist cases easily and subject the alleged offender not only to full-fledged trial before a court, but also to the risk of preventive detention. That we feel emphatically was not the intention of the legislature and the context in which the expression “witnesses” is used in the proviso to Section 2(o)(ii).

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We are unable to agree that the legislature had assumed that seizure by itself is sufficient safeguard to prevent abuse. If that be so, there was no reason for the legislature to insist on the presence of witnesses. The legislature must be imputed with the knowledge that witnesses were essential for a search but not for a seizure. Legislature was aware that seizure of articles to attract offences coming within the sweep of the proviso, could be made even without any witnesses. Still, the legislature insisted that such seizures to attract the proviso must be made in the presence of witnesses. Presence of witnesses was

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a further requirement/safeguard zealously insisted by the

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legislature to attract the proviso.

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We are in these circumstances of the opinion that the expression in the presence of “witnesses” in the proviso to Section 2(o)(ii) must be read and understood not as any witnesses. That expression must, considering the text and context and in the light of the constitutional concern for freedom and personal liberty of the individual be understood only as non- police witnesses. Any contra understanding of the said expression would defeat the legislative commitment and concern to avoid the temptation of the police functionaries to misuse and abuse this piece of law relating to preventive detention.

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We have already mentioned that the question whether a person is a known goonda or known rowdy is a threshold requirement and there must be objective satisfaction on that aspect. The question whether a person is a known goonda or known rowdy is justiciable and this Court can certainly look into that question. That is not a matter to be left in the realm of subjective satisfaction of the detaining authority.

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We have already come to the conclusion that all the

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cases relied on against the detenu are cases where seizure of sand was effected in the presence of police witnesses only. It has hence to be concluded that the detenu is not a person answering the requirement of Section 2(o) of the KAAPA. It follows that the detenu is not a known goonda. Section 3 of the KAAPA is hence not applicable to him. The Detaining Authority cannot assume jurisdiction over him. Consequently, the impugned order and the consequent detention of the detenu cannot be justified.

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In the view which we have taken, we deem it unnecessary to go into the other contentions that have been raised. The detenu is entitled to be set at liberty.

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In the result:

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(a) this petition is allowed.

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(b) The order of detention Exhibit P1 is set aside

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and the detenu is directed to be set at liberty.

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in connection with any other case, he shall forthwith

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be released from custody by the respondents.

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Registry shall forthwith communicate this judgment to

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the Superintendent of Prison, Viyyur, the 5^th respondent.

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R.BASANT, JUDGE.

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M.C.HARI RANI, JUDGE.

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dsn

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R.BASANT & M.C.HARI RANI, JJ.

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--------------------------------------------------

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W.P.(Crl)No. 185 OF 2009

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DATED THIS THE 18^th DAY OF JUNE, 2009

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GIST OF THE JUDGMENT

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Basant, J.

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xxxxxxxx xxxxxx xxxxxxx

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In the result:

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(a) this petition is allowed.

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(b) The order of detention Exhibit P1 is set aside

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and the detenu is directed to be set at liberty.

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in connection with any other case, he shall forthwith

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be released from custody by the respondents.

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Registry shall forthwith communicate this judgment to the Superintendent of Prison, Viyyur, the 5^th respondent.

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R.BASANT, JUDGE.

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M.C.HARI RANI, JUDGE.

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dsn

Vinija v. State of Kerala

Case brief

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Vinija v. State of Kerala

Case brief

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