Chinju vs State Of Kerala
2021 Latest Caselaw 11259 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
          THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                  &
               THE HONOURABLE MRS. JUSTICE M.R.ANITHA
  THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943
                       WP(Crl.).No.71 OF 2021


PETITIONERS:

               CHINJU, AGED 22 YEARS
               W/O. LALU, MANAMKUZHY HOUSE, KOMBANAD VILLAGE,
               PANIYELIKKARA, ERNAKULAM DISTRICT-683544.

               BY ADVS.
               SRI.P.K.VARGHESE
               SRI.K.R.ARUN KRISHNAN
               SMT.SANJANA RACHEL JOSE

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO
               GOVERNMENT, HOME DEPARTMENT, SECRETARIAT,
               THIRUVANANTHAPURAM-695001.

      2        THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE,
               CIVIL STATION, KAKKANAD, ERNAKULAM-682030.

      3        DISTRICT POLICE CHIEF,
               ERNAKULAM RURAL, ALUVA-683108.

      4        STATION HOUSE OFFICER/INSPECTOR OF POLICE,
               KURUPPAMPADI POLICE STATION, ERNAKULAM RURAL-
               683545.

      5        SUPERINTENDENT,
               CENTRAL PRISON, VIYYUR, THRISSUR-680010.

               R1-5 BY ADDL.DIRECTOR GENERAL OF PROSECUTION
               R1-5 BY GOVERNMENT PLEADER

OTHER PRESENT:

               SRI.K.A.ANAS, GP

     THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
08-04-2021, THE COURT ON 08-04-2021 DELIVERED THE FOLLOWING:
 WP(Crl) No.71 of 2021             2




                               JUDGMENT

Dated this the 8th day of April, 2021

Vinod Chandran, J.

Petitioner is concerned with the preventive

detention of her husband as per Ext.P1 order passed

under the Kerala Anti-Social Activities [Prevention]

Act, 2007 [for brevity, 'KAAPA']. The grounds raised

against the order are that there is no proper

application of mind, that the detenu was arrayed in

Crime No.885 of 2020 by reason of distortion of

facts, the offences registered against the detenu are

not so grievous as to order preventive detention, the

contentions of the detenu in the representations were

not considered, the Advisory Board has not replied to

the representation and that the order passed is

against the mandate of Article 22(5) of the

Constitution of India.

2. More importantly, the learned Counsel for

the petitioner asserts that the last prejudicial act

alleged on the detenu is Crime No.885 of 2020, in

which this Hon'ble Court has granted bail as per

Ext.P9. The bail conditions are complied with and

both the Sponsoring Authority and the Detaining

Authority have endorsed reports of such compliance.

There was hence no reason to detain the detenu under

the provisions of KAAPA after his release on

17.11.2020 as per Ext.P9 and his continued good

behaviour as also compliance of the conditions of

bail.

3. Learned Government Pleader argues for

sustaining the order. The grounds raised are

untenable and the detenu is a person, who is

continuously involved in serious crimes, which he

indulged in even after once being absolved from

proceedings under Section 15(1) of the KAAPA, on his

specific undertaking of good behaviour.

4. We have seen Ext.P9 order and Ext.P5

recommendation of the Sponsoring Authority. The

detenu was involved in five crimes, the first of

which was registered in the year 2017 and the last,

in 2020. The offences charged against the detenu in

the respective crimes are as follows:

(i) Perumbavur Police Station: Crime No.1141/2017

under S.341,323,307,294(b),201 & 34 IPC.

(ii) Oonnukal Police Station: Crime No.544/2018

under S.341,323,324,394 & 34 IPC.

(iii) Kuruppampadi Police Station: Crime

Nos.855/2018 under S.341,323,294(b),506 (II) & 34

IPC.

(iv) Kuruppampadi Police Station: Crime

Nos.417/2019 under S.341,294(b),323,324,354 & 34 IPC.

(v) Kuruppampadi Police Station: Crime

Nos.885/2020 under S.212,468,471,307,34 IPC, Sec.3(a)

of the Explosives Substances Act, 1908 & S.27 of Arms

Act.

5. The allegations in the aforesaid crimes

reveals that the detenu has, along with other

accused, continuously indulged in offences, which are

serious in nature. The detenu has indulged in acts of

threats, intimidation, assault and physical violence

and has proved to be a social menace in the last

three years, when there are registration of enough

crimes against him to be treated as a 'known goonda'

under the KAAPA.

6. The Detaining Authority, on a reading of

Ext.P1 order, has applied his mind to the

recommendation of the Sponsoring Authority and the

documents produced before him. It is trite that in

preventive detention it is the subjective opinion of

the Detaining Authority that leads to an order being

passed, which is sufficiently justified from the

reasons stated. The allegation of last FIR having

been lodged by distortion of facts is not the ground

that can be considered at this stage. It is also

trite that the subjective satisfaction does not

extend to finding the accused, in a case charged

against him, to be guilty or innocent. There is no

mandate on the Advisory Board to reply to the

representation filed before them. The Advisory Board

has affirmed the order of detention after considering

the representation and such affirmation is not

subjected to judicial review.

7. The ground forcefully submitted before

Court is with respect to the bail conditions having

been complied with. Ext.P9 order has the following

conditions;

                 "(i)    They     shall        appear    before    the
     Investigating       Officer    on    all     Mondays    between

9 a.m. and 12 noon for a period of two months or till the filing of the final report, whichever is earlier.

(ii) They shall not get involved in similar cases during the pendency of the bail.

                 (iii)    They     shall        not     tamper    with
     evidence,      intimidate            or      influence        the
     witnesses."

8. Ext.P5 specifically reports that the bail

conditions have been till date complied with. Ext.P9

order is on 25.09.2020 and the detenu is said to have

been released on 28.09.2020. Ext.P5 recommendation of

the Sponsoring Authority was on 23.10.2020 and the

detaining order passed is on 17.11.2020. It is seen

from the detaining order that the conditions of bail

are specifically considered. It has also been noticed

by the Detaining Authority that there is sufficient

compliance of conditions of the bail order. However,

the Detaining Authority has categorically opined that

the bail conditions may not be sufficient, especially

looking at the antecedents of the detenu. In fact the

detenu was proceeded under Section 15(1) of KAAPA. At

the hearing scheduled under Section 15(1), the detenu

had undertaken not to indulge in any crimes. On which

undertaking alone, the detenu was absolved from any

action at that time. Learned Government Pleader

pointed out that the said proceedings were closed on

11.05.2019, after which the last prejudicial act

occurred, against which FIR in Crime No.885 of 2020

was lodged. Grievous offences, including attempt to

murder and those under the Explosive Substances Act

and Arms Act, are charged against the detenu after

the undertaking given before the Zonal Inspector

General of Police. We find the Detaining Authority to

have considered the conditions of bail, as granted by

the High Court and has entered an opinion as to the

said condition being insufficient to restrain the

commission of further offences by the detenu. We

cannot find any fault in such satisfaction having

been entered by the Detaining Authority considering

the gravity of offences, the frequency of the same,

the violation of undertaking and the habitual nature

of the offences committed by the detenu for a span of

three years.

We do not think that there is any violation

or infringement of the mandate under Article 22(5) of

the Constitution of India. We reject the writ

petition leaving the parties to suffer their

respective costs.

Sd/-

K.VINOD CHANDRAN JUDGE

Sd/-

M.R.ANITHA JUDGE

sp/08/04/2021 //True Copy//

P.A. To Judge

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE ORDER OF DETENTION NO.DCEKM/9328/2020/M7 ISSUED BY THE 2ND RESPONDENT DATED 17.11.2020 UNDER SECTION 3(1) OF KERALA ANTI-SOCIAL ACTIVITIES (PREVENTION) ACT 2007.

EXHIBIT P2 TRUE COPY OF THE GROUNDS OF DETENTION DATED 17.11.2020 IN DCEKM/9313/2020/M7.

EXHIBIT P3 TRUE COPY OF THE MEMO FOR EXECUTING ORDER NO.DCEKM/9328/2020/M7 ISSUED BY THE 2ND RESPONDENT DATED 17.11.2020.

EXHIBIT P4 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 4TH RESPONDENT DATED 18.11.2020.

EXHIBIT P5 TRUE COPY OF THE REPORT NO.732/CAMP/2020/ER SUBMITTED TO THE 2ND RESPONDENT BY THE 3RD RESPONDENT DATED 23.10.2020.

EXHIBIT P6 TRUE COPY OF THE REPORT DATED 3.10.2020 OF THE 4TH RESPONDENT.

EXHIBIT P7 TRUE COPY OF REPRESENTATION SUBMITTED BY THE DETENUE BEFORE THE ADVISORY BOARD KAAPA DATED 6.1.2021.

EXHIBIT P8 TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONER TO THE ADVISORY BOARD DATED 6.1.2021.

EXHIBIT P9 A TRUE COPY OF THE ORDER DATED 25.9.2020 IN B.A.NO.5562/2020 OF THIS HONOURABLE COURT.

EXHIBIT P10             A TRUE COPY OF REPORT SUBMITTED BY THE 4TH
                        RESPONDENT   TO    THE   SUB    DIVISIONAL

MAGISTRATE,KURUPPAMPADI DATED 10.4.2019.

EXHIBIT P11 A TRUE COPY OF ORDER NO.1249/ROWDYHS/SDP/2016 DATED 4.4.2016 OF DEPUTY SUPERINTENDENT, PERUMBAVOOR AS

SUPPLIED TO THE DETENUE.

EXHIBIT P12 A TRUE COPY OF COMMUNICATION ISSUED BY THE OFFICE OF DY. INSPECTOR GENERAL OF POLICE, ERNAKULAM RANGE DATED 5.12.2019.

EXHIBIT P13 TRUE COPY OF ROWDY SHEET OF THE DETENUE SUBMITTED BY THE STATION HOUSE OFFICER, KURUPPAMPADI POLICE STATION TO THE DEPUTY SUPERINTENDENT OF POLICE, PERUMBAVOOR AS SUPPLIED TO THE DETENUE.

EXHIBIT P14 TRUE COPY OF ORDER NO.G.O.(RT)NO.205/2021 HOME DATED 20.1.2021 PASSED BY THE 1ST RESPONDENT WITH TYPED COPY.