Allowed

Shiny v. State of Kerala

Kerala HC16 Oct 2009WP(Crl.)/341/2009

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging a preventive detention order. The court set aside the order because the detaining authority classified the detenu as a 'known goonda' contrary to the sponsoring authority's report calling him a 'known rowdy'. The court held that the order failed to record any application of mind justifying this significant deviation and classification, which depri

What did the court decide?

The impugned order of detention is set aside and the detenu is directed to be released forthwith if further detention is not required in another case.

Shiny 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 & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931

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WP(Crl.).No. 341 of 2009(S) ---------------------------

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PETITIONER:

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SHINY A., W/O.PADMANABHAN, T.C.32/194, MANAKKATTUVILAKOM, KARIKKAKOM MURI, MADHAVAPURAM, KADAKAMPALLY, THIRUVANANTHAPURAM.

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BY ADV. SRI.SUMAN CHAKRAVARTHY SMT.K.R.RIJA

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RESPONDENT(S): ---------------

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STATE OF KERALA, REP. BY THE ADDL. CHIEF SECRETARY (SECRETARY, HOME AFFAIRS), SECRETARIAT, THIRUVANANTHAPURAM.

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THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, THIRUVANANTHAPURAM.

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THE DEPUTY COMMISSIONER OF POLICE(L&O), THIRUVANANTHAPURAM CITY, OFFICE OF THE COMMISSIONER OF POLICE, THIRUVANANTHAPURAM.

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THE SUPERINTENDENT, CENTRAL PRISON, THIRUVANANTHAPURAM.

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GOVERNMENT PLEADER SHRI C.M.KAMMAPPU

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ADDL.DIR.GENL(PROCN).SHRI K.K.RANINDRANATH

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THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 16/10/2009, 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.341 OF 2009

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----------------------------------------------------DATED THIS THE 16^th DAY OF OCTOBER, 2009

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J U D G M E N T

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Basant, J.

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Is the detaining authority justified in reckoning the detenu as a goonda', when the sponsoring authority had only reported that he is a rowdy', to pass an order of detention under Sec.3(2) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (for short `the KAAPA')? This question, inter alia, arises for consideration in this writ petition.

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To the vital facts first: The petitioner is the wife of the detenu by name `Padmanabhan' who has been ordered to be detained under Sec.3 of the KAAPA under Ext.P1 order dated 29/6/09 passed by the 2^nd respondent. Such detention was on the basis of a report dated 20/6/09 submitted to the 2^nd respondent by the 3^rd respondent under Sec.3(1) of the KAAPA. The detenu has been arrested on

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23/7/09. The order of approval and order of confirmation have already been passed under Secs.3(3) and 10(4) of the KAAPA. The detenu thus continues in custody.

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The 3^rd respondent had sponsored the detention of

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the detenu on the basis of 5 cases which are given below:

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Sl. No.	Date of occurrence	Crime No.	Offences (inter alia)	Status	Remarks
1	15/10/2002	232/02	Secs. 452 & 506(ii) read with Sec.34 IPC	Trial pending	Nil
	17/10/2002	233/02	Secs.506(ii) & 427 read with	Trial pending	Nil
2			Sec.34
3	06/04/09	172/09	Sec. 308 read with Sec. 149	Investigation pending	Nil
4	04/05/09	217/09	Sec.307 read with Sec. 34	Investigation pending	Nil
5	06/04/09	170/09	Sec.332 read with Sec.149	Investigation pending	Nil

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In addition to the above 5 cases referred to, there is

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also the circumstance relied on by the sponsoring authority that the detenu is a registered rowdy of the Valiathura Police Station and history sheet No.37 is currently maintained against him. It is admitted that such history

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sheet has been opened by the police only after the registration of the last crime referred above.

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The learned counsel for the petitioner and the learned Additional Director General of Prosecutions have advanced arguments before us. The learned counsel for the petitioner assails the detention of the detenu, inter alia, on the following grounds:

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(i) There has been no proper application of mind by the detaining authority before Ext.P1 order of detention was passed.

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(ii) The history sheet - Ext.P5, has been opened with the transparent intention of subjecting the detenu to harassment under the KAAPA and the same is hence liable to be ignored.

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Grounds 1 and 2: Various grounds have been urged under the head of “non-application of mind” by the detaining authority. It may not be necessary to advert to all

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the contentions advanced under this broad head in detail. We shall advert only to the contentions which we think are most relevant.

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It is by now trite that an order of detention under Sec.3 can be passed by the detaining authority only after he entertains both the satisfactions insisted by Sec.3 of the KAAPA. The initial threshold satisfaction must be entertained that the detenu is either a known goonda or a known rowdy. This is an objective satisfaction. There is nothing subjective in this former part of the satisfaction. On the materials placed before the detaining authority, the detaining authority must entertain the satisfaction that the detenu is a known goonda' as defined under Sec.2(o) of the KAAPA or a known rowdy' as defined under Sec.2(p) of the KAAPA. Unless this initial satisfaction is validly entertained by the detaining authority, there can be no possibility of a valid order of detention being passed.

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It will be apposite straightaway to note that the requirements to bring a person within the sweep of the expression known goonda' in Sec.2(o) and known rowdy' under Sec.2(p) of the KAAPA are totally different and distinct. A goonda' is defined under Sec.2(j) and a known goonda' is defined under Sec.2(o) of the KAAPA. A rowdy' is defined under Sec.2(t) and a known rowdy' is defined under Sec.2(p) of the KAAPA. At the outset we only note that the circumstances to be established to bring a person within the sweep of known goonda' and known rowdy' are different and distinct.

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We now refer to the latter satisfaction under Sec.3. After entertaining the requisite former objective threshold satisfaction, the detaining authority must be satisfied that such known goonda or known rowdy (whichever he be) deserves to be detained in order to prevent him from indulging in anti-social activity. This latter satisfaction is

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subjective and all relevant circumstances have to be considered by the detaining authority before he proceeds to entertain such subjective latter satisfaction. The initial objective satisfaction is justiciable; whereas the latter objective satisfaction is not justiciable.

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Having said so, we will advert to the first contention that the 5^th case referred above is not one which can be taken into consideration to bring a person within the sweep of either a known goonda or a known rowdy. The learned Additional Director General of Prosecutions fairly accepts this contention and submits that the 5^th case can safely be excluded while considering whether the detenu is a known goonda or a known rowdy. Sec.2(o)(ii) as well as Sec.2(p)(iii) show that crimes registered suo motu by the police will have to be excluded while considering whether a person is a known goonda or a known rowdy.

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The 6^th circumstance (in addition to cases 1 to 5

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shown in the tabular column above) relied on by the sponsoring authority and detaining authority is the opening of a history sheet against the detenu and registering him as a rowdy. This has been done only on the basis of the five cases referred above. In these circumstances, we are satisfied that the said 6^th circumstance cannot at all be taken into consideration while considering the inclusion of the detenu as a known rowdy or known goonda. The same cannot also be taken into reckoning while considering the latter subjective satisfaction, as the mere opening of a rowdy sheet will be irrelevant for that purpose also. In these circumstances, the said 6^th circumstance can also be ignored. The second ground of challenge consequently becomes irrelevant. The 6^th circumstance can have no bearing or impact on the impugned order of detention. We shall not hence go into that ground of challenge in this Writ Petition. The option of the detenu to challenge Exhibit P4

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order by initiating appropriate proceedings shall remain unfettered.

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We take the view, in these circumstances that the 5^th case and the 6^th circumstance can be eschewed while considering the validity of the detention.

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We now come to the main contention raised by the learned counsel for the petitioner. The learned counsel contends that the detenu has been sponsored for preventive detention by the sponsoring authority, the 3^rd respondent on the only ground that he is a known rowdy. He has not been sponsored for detention by the sponsoring authority on the ground that he is a known goonda. But the impugned order of detention Exhibit P1 passed by the detaining authority describes the detenu as a known goonda and it is on that basis that the order of detention is passed. The crux of the contention of the learned counsel for the petitioner is that due, proper and alert application of mind

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has not preceded before the detaining authority chose to pass the order of detention assuming and reckoning the detenu to be a known goonda. This, contends the learned counsel for the petitioner, seriously affects and vitiates the order of detention. It also affects the right of the detenu to make appropriate representation before the Government and the Advisory Board. In short, the learned counsel contends that in the absence of application of mind on this crucial aspect as to whether the detenu must be treated as a known rowdy as stated by the sponsoring authority or as a known goonda as reckoned by the detaining authority, the impugned order is vitiated.

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To appreciate this argument clearly, one must first of all proceed to the definition of 'rowdy' and 'goonda' under Section 2(t) and 2(j) of the KAAPA. We extract Section 2(t) below.

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“2(t) “rowdy” means and includes a person who either by himself or as a member of a gang commits or attempts to commit, or abets the commission of

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any offences under Sections 153A and 153B of Chapter VIII and Chapters XV, XVI, XVII & XXII of the Indian Penal Code, 1860(Central Act 45 of 1860), or any offences under the provision of the Arms Act, 1959 (Central Act 54 of 1959), or the Explosive Substances Act, 1908 (Central Act 6 of 1908),

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(i) punishable with five or more years of imprisonment of any type, or;

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(ii) with less than five years of imprisonment of any type, except those punishable with less than one year of imprisonment; or

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(iii) such offences under any other law for the time being in force, coming under item (i) or (ii), as may be notified by the Government, from time to time.”

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A reading of Section 2(t) shows that any person who either by himself or as a member of a gang commits or attempts to commit, or abets the commission of any of the specified offences under the Indian Penal Code or the Arms Act or the Explosive Substances Act will fall within the sweep of the expression 'rowdy'. What is crucial to note is that the definition of 'rowdy' under Section 2(t) does not at all refer to anti-social activity referred to in Section 2(a). Though objects and reasons suggest that KAAPA has been enacted to effectively prevent organised crimes, there is

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nothing in Section 2(t) which indicates that the offences referred to in Section 2(t) must relate to organised criminal activity or anti-social activity. The commission of any of the offences referred to in Section 2(t) or attempt or abetment of such crime will bring a person within the sweep of the definition 'rowdy' in Section 2(t).

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The learned counsel for the petitioner contends that the allegation against the petitioner raised in the report of the sponsoring authority (the report of the 3^rd respondent has been placed before us by the learned Additional Director General of Prosecutions) does not at all show that the detenu was anything other than a rowdy. There is no specific allegation of any involvement in an organised crime or anti social activity in respect of the five cases referred above. The learned counsel contends that the detenu has been described to be a rowdy by the sponsoring authority only for the reason that he was involved in 5 crimes referred

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above which fall within the sweep of the crimes referred to in Section 2(t). The learned counsel particularly points out that there is no specific allegation that any of such crimes relate to organised criminal activity or anti social activity as defined in Section 2(a).

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It is in this context that we have to refer to the definition of goonda in Section 2(j). We extract the same below.

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“goonda” means a person who indulges in any anti-social activity or promotes or abets any illegal activity which are harmful for the maintenance of the public order directly or indirectly and includes a bootlegger, a counterfeiter, a depredator of environment, a digital data and copy right pirate, a drug offender, an hawala racketeer, an hired ruffian, rowdy, an immoral traffic offender, a loan shark or a property grabber.”

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A reading of the definition of goonda in Section 2

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(j) shows that the definition has two parts. Any person who indulges in any anti social activity or promotes or abets illegal activities which are harmful for the maintenance of the public order directly or indirectly would fall within the

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expression goonda by the operation of the former first part

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of the definition. Not satisfied with that former part, the latter part of the definition, by a deeming fiction as it appears included the following, ie.

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a bootlegger,

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a counterfeiter,

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3.a depredator of environment,

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4.a digital data and copy right pirate,

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5.a drug offender,

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6.an hawala racketeer,

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7.a hired ruffian,

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a rowdy,

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9.an immoral traffic offender, 10.a loan shark or 11.a property grabber

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also within the sweep of the definition ‘goonda’. All these expressions are defined in Section 2 of the KAAPA . The learned counsel contends, and we find it easy to accept that contention, that so far as these specified persons in the latter half of the definition of goonda under Section 2(j) are concerned, they get included in the definition of goonda ,

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even when they do not satisfy the former part. They are fictionally assumed to be goondas under the inclusive latter limb of the definition.

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The learned counsel hence argues that the sponsoring authority has chosen to include him as a rowdy on the basis that the cases against him would fall within the offences specified under Section 2(t) and not because he indulges in any anti-social activity or promotes or abets illegal activities which are harmful for the maintenance of the public order. The learned counsel argues that going by the report of the sponsoring authority, he is only a rowdy.

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It will be apposite in this context to refer to the definition of known rowdy under Section 2(p) . We extract the same below.

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“2(p). “known rowdy” means any person, who had been, by reason of 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) made guilty, by a competent Court at least once for an offence of the nature

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under item (i) of clause (t) of Section 2 or any offence notified as such under the said clause; or

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(ii) made guilty, by a competent Court at least twice for any offence of the nature mentioned under item (ii) of clause (t) of Section 2 or any offence notified as such under the said clause; or

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(iii) found, on investigation or enquiry by a competent police officer or other authority, on complaints initiated by persons other than police officers,in three separate instances not forming part of the same transaction to have committed any offence mentioned in clause (t) of Section 2:

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Provided that any offence committed by a person, -

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(i) by virtue of his involvement as a member of the family or a close relative of the family, in an incident which took place by reason of a family dispute or quarrel involving family members of close relatives on either side; or

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(ii) by virtue of his involvement as a neighbour or as a close relative of the neighbour in an incident which occurred due to a dispute between immediate neighbours; or

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(iii) by virtue of his involvement as an employee of any establishment in an incident which occurred in connection with a dispute between himself and the establishment with regard to the conditions of service; or

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(iv)as a member of the student community in a recognised educational institution, by virtue of his involvement, merely by his presence but without any overt act constituting the offence mentioned in clause (t) of Section 2 without being involved in any criminal conspiracy

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facilitating the same, in an incident which occurred due to the general involvement of students of the institution in that particular incident; or

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(v) as a member of a recognised political party, by virtue of his involvement merely by his presence, but without any overt act constituting the offence mentioned in clause (t) of Section 2 without being involved in any criminal conspiracy facilitating the same, in an incident which occurred due to the general involvement of the workers of that party in an agitation or protest or programme organised by the party with prior information given to the police officer or Magistrate having jurisdiction; or

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(vi)by virtue of his involvement in a criminal act committed by him before he had attained the age of eighteen years,

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shall be omitted from the computation of the number of offences taken into account for deciding whether a person is a known rowdy.”

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For a rowdy to fall within the sweep of the definition known rowdy, under clause (iii) of Section 2(p) there must be three cases against him. We are not referring to Section 2p(i) or (ii), because there is no contention that they would at any rate be answered by the detenu herein . In respect of rowdy who has not already been convicted in any case, he may come within the sweep

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of the definition of known rowdy under clause (iii) of Section

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2(p)only if there are three such cases against him.

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The learned counsel relies on this to point out the distinction between the definition of ‘known goonda’ under Section 2(o) and the definition of ‘known rowdy’ under Section 2(p). For the sake of easy reference, we extract Section 2(o) immediately.

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“2(o)“known goonda” means a goonda who 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 authority at least once for an offence within the meaning of the term 'goonda' as defined in clause (j) of Section 2; or

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(ii) found in any investigation or 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

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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 police officer.”

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The counsel draws our attention to Section 2(o)

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(ii) and Section 2(p)(iii) to point out that two such cases are sufficient to bring a person within the sweep of the expression ‘known goonda’ under Section 2(o)(ii) whereas three such cases are necessary to bring him within the sweep of the expression ’known rowdy’ under Section 2(p) (iii). The learned counsel further contends that the provisos (i) to (vi) of Section 2(p) are not there under Section 2(o). In these circumstances, the basis on which the order of detention is passed against a person under Section 3 – whether treating him as a known goonda under Section 2(o) or a known rowdy under Section 2(p), is of seminal importance for a detenu. Three cases are necessary under Section 2(p) (iii) and he is entitled to the protection of the provisos to Section 2(p) whereas only two cases are

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necessary under Section 2(o) (ii) and the protection of the six provisos shall not be available for a person proceeded against as known goonda.

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The crux of the contention of the learned counsel for the petitioner is that the course adopted by the detaining authority - of treating him as a known goonda contrary to the recommendation of the sponsoring authority that he is a known rowdy, is a matter of great consequence so far as the detenu is concerned. Lightly or casually, a person who is sponsored for detention as a known rowdy cannot, all on a sudden, be treated as a known goonda by the detaining authority as the scope of the defences that can be raised and the nature of the representations that can be made to the Government and the Advisory Board will be significantly different in so far as a known goonda and known rowdy are concerned.

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The learned counsel in these circumstances

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contends that even assuming that the detaining authority can disagree with the sponsoring authority and treat a known rowdy sponsored so by the sponsoring authority as a known goonda for the purpose of detention, the detaining authority must properly, correctly and fully apply his mind to that aspect. Such consideration must be reflected in the order of detention. The learned counsel in these circumstances contends that significantly and vitally, the impugned order of detention does not at all reveal why the detenu sponsored for detention by the sponsoring authority as a known rowdy is treated as a known goonda by the detaining authority. Such need to convert a known rowdy into a known goonda contrary to the report of the sponsoring authority must be explained by sufficient reasons by the detaining authority. Alert, anxious and pointed application of mind must precede such alteration and transformation of the basis of detention. Such consideration

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and explanation must be clearly reflected in the order of detention. The failure to rivet the pointed attention of the detaining authority to that aspect deprives the detenu of a lot of rights which he has. His right to contend that three cases required under Section 2(p)(iii) are not there against him and his contention that he is entitled to the protection of the provisos (i) to (vi) of Section 2(p) are denied to him by such transformation of his status from a known rowdy to known goonda. This cannot be done without proper and pointed application of mind. The want of such application of mind and consideration vitiates the order of detention, contends the learned counsel for the petitioner.

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Prima facie, the contention appears to be impressive to us. To appreciate the importance of this contention in the present fact scenario, we shall now visit the facts again. The learned counsel contends that there are only two cases in which final reports have been filed against him, i.e., cases 1 and 2 above. In respect of cases

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3 and 4, no final reports have, so far been filed. Of course, the dictum Elizebath George v. State of Kerala (2008 (4) KLT 425) , indicates that filing of the final report is not a condition precedent and the cases in which final report has not been filed can also be taken into account while considering the play of Section 2(p)(iii) and 2(o)(ii). We have already referred that question to the Full Bench as per our decision in the order of reference dated 9.9.2009 in W.P.(C)No.20606/2009. We have already agreed that case No.5 and the rowdy list shown as the 6^th circumstance cannot be taken into account. In that event, the counsel contends, that if cases 3 and 4 can be excluded, he would not have fall within Section 2(p)(iii) as there will be only two and not three cases against him.

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The learned counsel further points out that both these cases according to him are cases in which there has been a dispute between him and close relatives of his – one

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Suni and his son Vishnu, who are the defacto complainants in cases 3 and 4. In having unceremoniously transformed the description of the detenu from known rowdy to known goonda, the detenu has been deprived of the liberty to raise the contention that he is entitled to the protection of the provisos (i) and (ii) of Section 2(p).

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The learned Additional Director General of Prosecutions in reply submits that the report of the sponsoring authority is not the be all and end all so far as a detaining authority is concerned. The detaining authority is expected to apply his mind to the report of the sponsoring authority and it is not incumbent on the detaining authority that he must swallow the report in its entirety. The basic facts are made available to the detaining authority by the sponsoring authority and the detaining authority by application of his mind to the report submitted by the sponsoring authority can come to appropriate conclusions

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about the need of detention as also the grounds on which detention has to be made. The sponsoring authority may refer to irrelevant details in his report. He may refer to inadmissible material. He may make wrong conclusions as to whether a person is a known goonda or a known rowdy. In all these circumstances, the detaining authority is not a prisoner of the views taken or the conclusions expressed by the sponsoring authority. The detaining authority’s option to disagree with the report of the sponsoring authority and come to appropriate conclusions on the basis of the report remains unfettered. The learned Additional Director General of Prosecutions in these circumstances contends that the mere fact that the detaining authority has not swallowed and accepted the sponsoring authority’s report in full is not a reason to invalidate the order of detention.

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We find force in this contention of the learned Additional Director General of Prosecutions. We have no

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hesitation to agree that the duty of the detaining authority is to apply his mind to the report submitted by the sponsoring authority and accept what can be accepted, reject what has to be rejected and then come to appropriate conclusions after application of mind as to whether an order of detention deserves to be passed or not. Merely because the sponsoring authority takes up a particular stand in his report, the detaining authority cannot be held to be inextricably bound by such report.

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But, the more important question is whether the detaining authority has applied his mind and come to appropriate conclusions while disagreeing with the sponsoring authority’s report. In this case, sponsoring authority stated that the detenu is a known rowdy. The detaining authority appears to have felt that he is a known goonda. Has proper and correct application of mind preceded before the detaining authority took that decision?

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That is the crucial question.

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We have been taken through the order of detention in detail. We are unable to find any specific and pointed application of mind by the detaining authority on this crucial aspect - as to whether the detenu is a known rowdy as stated by the sponsoring authority and as to why he should be treated as a known goonda ignoring the report of the sponsoring authority. A careful and anxious reading of the order of detention does not at all reveal that there has been any pointed application of mind by the detaining authority on this specific aspect. On that question there can be no dispute.

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The leaned Additional Director General of Prosecutions valiantly contends that though the reasons are not given in detail in the detention order, sufficient reasons are actually available. The learned Additional Director General of Prosecutions contends that cases 1 and 2

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referred above would clearly show that the contumacious acts alleged in those cases amount to anti-social activity as defined under Section 2(a). The former satisfaction under Section 3 as earlier stated by this court is an objective justiciable satisfaction, points out the learned Additional Director General of Prosecutions. The learned Additional Director General of Prosecutions hence contends that when materials are available in the detention order to come to the conclusion that the detenu can be included in the definition of a ‘goonda' under the former part of the definition in Section 2(j), the fact that, that conclusion is not reasoned in detail in the order of detention will not affect the validity of the order of detention. The learned Additional Director General of Prosecutions points out that both cases 1 and 2 are cases in which the alleged conduct amounts to antisocial activity and consequently the detenu will be a goonda under the former part of Section 2(j). In these

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circumstances, even if detailed reasons are not given as to why the detaining authority has treated the detenu as a known goonda and not as a known rowdy, as the reasons are available in the order to be verified by a court , the want of such details in the order of detention cannot vitiate the order of detention at all, contends the learned ADGP.

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We have considered this contention in detail. First of all it is imperative that there must be proper application of mind. When contrary to the report of the sponsoring authority, the detaining authority takes a different view to the disadvantage of the detenu, certainly this Court would be justified in insisting that the order of detention must give reasons as to why such a different view is taken. Merely because such reasons can be deciphered or invented by a different process other than perusal of the order of detention, we are afraid the requirement to apply the mind of the detaining authority cannot be held to be satisfied.

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In a situation like this we would definitely look up to the order of detention to satisfy us that the detaining authority had applied his mind properly . If there were indications in the order of detention that for a valid and specified reason the detaining authority considered it proper to reckon the detenu as a known goonda and not known rowdy, this Court would have been satisfied by those reasons. But, when such consideration is not reflected at all in the order of detention, we are afraid, the contention of the learned Additional Director General of Prosecutions cannot be accepted.

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We need not repeat that preventive detention is the jurisprudence of suspicion and a person is deprived of a sacrosanct right to liberty and freedom not for anything he has already done but on the apprehension of the executive authority that he may indulge in objectionable contumacious activity in future. Law has zealously insisted always that

¶179

W.P.(Crl.)No.341/09

¶180

¶181

such an order of vital and grave consequences to citizens must be passed by the authority only after due and proper application of mind. Whether there has been application of mind or not can be deciphered only from the order passed. In a case like this, where deviation is made drastically, from the recommendation of the sponsoring authority and such deviation entails crucial consequences for the detenu, we are afraid the argument that reasons can be deciphered, discovered and invented by the court in judicial review is not sufficient to uphold the validity of the order of detention.

¶182

To sum up, the order of detention must fail for the simple reason that the order does not reveal that there has been pointed application of mind as to whether the detenu is a known goonda or a known rowdy. It must fail for the further specific reason that reasons for deviating from the report of the sponsoring authority are not revealed at all in the impugned order of detention. Nay, it is not even

¶183

W.P.(Crl.)No.341/09

¶184

¶185

revealed that proper application of mind had preceded before the description of the detenu was transformed from a known rowdy to a known goonda to order detention. From the point of view of the detenu, this substantially affects his right to make a representation. He is left in the dark as to whether he is included in the former or latter half of the definition of goonda under Section 2(j). Consequently, he is denied and deprived of an opportunity to make an effective representation. For these reasons, the order of detention must definitely fail.

¶186

Even though certain other grounds have also been raised it is not necessary for us to advert to any other grounds in this writ petition in view of the above conclusion.

¶187

In the result:

¶188

(a) this Writ Petition is allowed.

¶189

(b) the impugned order of detention is set aside and it is directed that the detenu shall

¶190

W.P.(Crl.)No.341/09

¶191

¶192

forthwith be released from custody, if his further detention is not required in connection with any other case.

¶193

¶194

this judgment to the Superintendent, Central Prison, Thiruvananthapuram.

¶195

R.BASANT, JUDGE.

¶196

M.C.HARI RANI, JUDGE.

dsn

W.P.(Crl.)No.341/09

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

¶201

W.P.(Cri.) No. 341 of 2009-S

¶202

Dated this the 16 day of October, 2009

¶203

GIST OF THE JUDGMENT

¶204

Basant,J.

¶205

Xxxxxxx xxxxxxxxx xxxxxxx xxxxxxxxx

¶206

In the result:

¶207

(a) this Writ Petition is allowed.

¶208

(b) the impugned order of detention is set aside and it is

¶209

directed that the detenu shall forthwith be released from custody, if his further detention is not required in connection with any other case.

¶210

¶211

to the Superintendent, Central Prison,

¶212

Thiruvananthapuram.

¶213

R.BASANT, JUDGE.

¶214

M.C.HARI RANI, JUDGE.

¶215

dsn

Shiny v. State of Kerala

Case brief

What is this about?

What did the court decide?

Shiny v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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Coram

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