Kerala High Court

M. P. Hassainar Haji vs State Of Kerala on 25 August, 2023

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
       THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                            &
          THE HONOURABLE MRS. JUSTICE C.S. SUDHA
  FRIDAY, THE 25TH DAY OF AUGUST 2023 / 3RD BHADRA, 1945
                    RP NO. 850 OF 2023
    AGAINST THE JUDGMENT DATED 10.07.2023 IN WP(Crl.)
             572/2023 OF HIGH COURT OF KERALA
REVIEW PETITIONER/PETITIONER:
         M. P. HASSAINAR HAJI, AGED 72 YEARS,S/O. MUKRI
         ABDULLA, R/AT SHAHIDA MANZIL, BALLA KADAPPURAM,
         KANHANGAD (P.O.), HOSDURG TALUK, KASARAGOD
         DISTRICT., PIN - 671315
          BY ADVS.
          RAHUL SASI
          NEETHU PREM
          ARCHANA VINOD
RESPONDENTS/RESPONDENTS:
    1     STATE OF KERALA, REPRESENTED BY THE ADDITIONAL
          CHIEF SECRETARY TO GOVERNMENT OF KERALA (HOME
          DEPARTMENT), SECRETARIAT, THIRUVANANTHAPURAM,
          PIN - 695001
    2     THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE,
          CIVIL STATION BUILDING, B.C. ROAD, VIDYANAGAR
          KASARAGOD, KERALA, PIN - 671123
    3     THE DISTRICT POLICE CHIEF KASARAGOD TOWN,
          KASARAGOD DIST. KERALA, PIN - 671123
    4     THE DEPUTY SUPERINTENDENT OF POLICE, KANHANGAD,
          KASARAGOD DISTRICT, KERALA, PIN - 671315
    5     THE INSPECTOR OF POLICE,STATION HOUSE OFFICER,
          HOSDURG POLICE STATION, KASARAGOD DISTRICT,
          KERALA, PIN - 671315
          BY ADV.K.A.ANAS, GOVERNMENT PLEADER
      THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
25.08.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 R.P. No.850 of 2023                        2
in
W.P.(Crl) No.572 of 2023




                      P.B.SURESH KUMAR & C.S.SUDHA, JJ.
                   -----------------------------------------------
                    Review Petition No.850 of 2023
                                         in
                        W.P.(Crl) No.572 of 2023
                   -----------------------------------------------
               Dated this the 25th day of August, 2023.


                                   ORDER

P.B.Suresh Kumar, J.

The petitioner in the writ petition is the review

petitioner.

2. The son of the petitioner, Jaffar M.P is detained

in terms of Section 3 of the Kerala Anti-Social Activities

(Prevention) Act, 2007 (the Act) as per Ext.P8 order which was

confirmed by the State Government as per Ext.P11 order.

Ext.P11 order was under challenge in the writ petition(Crl).

3. The detenu is accused in four cases, of which

in W.P.(Crl) No.572 of 2023

three are registered under the Narcotic Drugs and Psychotropic

Substances Act, 1985 (the NDPS Act) and one under the Indian

Penal Code (the IPC). Though the detenu was enlarged on bail

in the first two cases, he could not get bail in the remaining

cases. The second case in the sequence namely, Crime No.1404

of 2022 of Hosdurg Police Station is the one registered for

offences punishable under the IPC. The detenu was enlarged on

bail in the said case subject to conditions that he shall not get

himself involved in any other offence and that if he violates the

said condition, it would result in the cancellation of his bail.

Despite the conditions aforesaid, the detenu got himself

involved in the last two cases, and an application has,

therefore, been filed by the investigating officer in Crime

No.1404 of 2022 for cancellation of the bail granted to the

detenu. Thereafter, a report was also submitted by the Station

House Officer, Hosdurg before the competent authority for

initiation of proceedings against the detenu under Section 107

of the Code of Criminal Procedure (the Code). The contention of

in W.P.(Crl) No.572 of 2023

the petitioner in the writ petition(Crl) was that Exts.P8 and P11

orders were issued without considering the question whether

the proceedings under the ordinary law of land namely the

proceedings for cancellation of bail and the proceedings under

Section 107 of the Code, are sufficient to keep the detenu

under check and control. The petitioner relied on the decisions

of this Court in Mohanan v. State of Kerala, 2014 KHC 3501 and

in Abidha Beevi v. State of Kerala, 2013 (1) KHC 308, in support

of the said contention.

4. This Court found that it was having due regard

to the pendency of the proceedings for cancellation of bail and

the proceedings under Section 107 of the Code that the

detention order was issued and the same is consistent with the

ratio in Mohanan and Abidha Beevi. The writ petition (Crl) was

accordingly, dismissed.

5. The ground raised by the petitioner in the

review petition is that after the case was taken up for orders in

the pre-lunch session on 10.07.2023, the counsel for the

in W.P.(Crl) No.572 of 2023

petitioner made an additional submission in the post-lunch

session on that day, placing reliance on the decision of this

Court in Jameela v. State of Kerala and Others 2008 (1) KHC 5,

that at the time when the detention order was passed, the

detenu was already in judicial custody in connection with the

cases in which he could not obtain bail and the detention order

does not reflect whether the detenu has filed an application for

bail or whether such application is likely to be allowed, if filed

so as to form an opinion that the detenu should be kept under

preventive detention in order to prevent him from indulging in

anti-social activities, if he is enlarged on bail. According to the

petitioner, the judgment sought to be reviewed, in the

circumstances, is vitiated by an error apparent on the face of

the record, warranting exercise of the review jurisdiction of this

Court.

6. Heard the learned counsel for review petitioner

as also the learned counsel for the respondents.

7. It is not clear from the materials on record as to

in W.P.(Crl) No.572 of 2023

whether the learned counsel for the petitioner has made any

submission based on the decision of this Court in Jameela. Be

that as it may, let us deal with the argument claimed to have

been advanced by the learned counsel for the petitioner on the

basis of the said decision also, as we do not want to deny the

legal protections, if any, available to the detenu on technical

grounds. Paragraph 19 of the decision of this Court in Jameela,

on which reliance was placed by the learned counsel for the

petitioner reads thus:

"19. Art.22(1) of the Constitution of India says as follows:-

22. Protection against arrest and detention in certain cases.- (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

In the decision in Narendra Purushotam Umrao v. B.B. Gujral (1979 SCC (Cri.) 557), the apex court had observed that when the liberty of the subject was involved, whether it was under the Preventive Detention Act or the Maintenance of Internal Security Act or the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act or any other law providing for preventive detention, it is the bounden duty of the court to satisfy itself that all the safeguards provided by

in W.P.(Crl) No.572 of 2023

the law have been scrupulously observed and that the subject is not deprived of his personal liberty, otherwise than in accordance with law. Though as per KAAPO, 2007, the authorities are conferred with the power of detaining persons on satisfaction of the conditions enumerated therein, such powers cannot be exercised in contravention of the safeguards provided under Art.22(5) of the Constitution of India. The authorities, while exercising the powers and curtailing the liberty of the persons, shall very cautiously and only on their full subjective satisfaction, pass such detention orders. Therefore, it is incumbent upon the authorities concerned to apply their mind in the given facts and circumstances of the case and to draw their subjective satisfaction. In the present case, now it is admitted that when Ext.P1 order was issued and when the detenu was arrested pursuant to such orders, he was already in judicial custody. The questions as to whether the detenu had filed any application for bail and whether such application is likely to be allowed are matters which the detaining authority had no occasion to refer to, so as to form an opinion whether he should be kept under preventive detention so as to prevent him from indulging in anti-social activities in case he is enlarged on bail. In the absence of such materials so as to indicate the application of mind by the detaining authority, we have no hesitation to hold that the third respondent has miserably failed to apply her mind while issuing Ext.P1 order. Therefore, Ext.P1 order is issued in violation of the salutary principles and safeguards contained in Art.22 of the Constitution of India. Accordingly, we quash Ext.P1 order of

in W.P.(Crl) No.572 of 2023

detention issued by the third respondent on the basis of which

the detenu is arrested and detained"

As evident from the extracted passage, it was held by this Court

in the said case that the authorities, while exercising powers

curtailing the liberty of persons, shall be very cautious and only

on their full subjective satisfaction, detention orders shall be

passed. The argument developed by the learned counsel for the

petitioner based on the said judgment is that the proceedings

under the Act being one initiated against the detenu while he

was in judicial custody, the detaining authority should have

given a proper reason for detention which would show due

application of mind as to the need to order his detention even

while he is in judicial custody.

8. There is absolutely no merit in the contention,

inasmuch as the detention order reflects a due consideration on

the aspect whether the detenu has initiated steps to obtain bail

and the aspect as regards the consequence, if the detenu is

able to obtain bail. The relevant recitals in Ext.P8 order reads

thus:

in W.P.(Crl) No.572 of 2023

"ന ലവ ൽ ജഡ ഷ ൽ കസഡ യ ൽ കഴ ഞവരന എത ർകക ജ മ തന യ ശമ ആര ഭ ച ടണ# . കക ടത എത ർകക ക# ജ മ അനവദ കകയ ണ,ങ ൽ ട യ ൻ വ ണ

മയകമരന# വ ൽപന അടക മറ സ മഹ വ രദ പവർത കള ൽ ഇന യ ഏർണ;ടണമന ഇതര ;ര തസ ത യ ൽ എത ർകക ണയ വ ണ സ?തനമ യ സഞര ക ൻ അനവദ കനത# ണ; തസമഹത ണC സമ ധ നത ന# കടത ഭ ഷ, യ ണ,ന ;ലവ ധ കമസമ ധ ന കറകത ങള ൽ ഏർണപട# വ ച ര, കനര ടന ട യ ണനത ണര 2007 ണല കകരള സ മഹ വ രദ പവർതനങൾ (തടയൽ) ന യമത ണല (KAAPA-2007) ണല 2 (ഒ ) വകപനസര ച# അറ യണപടന ഗണയ യ ക,ക ക ന യമത ണല 3(1)ൽ അനശ സ ക വ ധ തടങൽ ഉതരവ# പറണപടവ ക ൻ ജ ല ക; ല സ# കമധ വ അഭ ർത ച ടണ# ."

We have already noticed in the judgment sought to be reviewed

that the detention order has been passed having regard to the

fact that the application preferred for cancellation of bail

granted to the detenu is pending and also the fact that steps

have already been taken against the detenu under Section 107

of the Code while forming the subjective satisfaction that the

proceedings under ordinary law of the land are not sufficient to

keep the detenu under check and control. As it is found that the

detaining authority has also considered the aspect whether the

detenu has initiated steps to obtain bail and the aspect as

regards the consequence, if he is able to obtain bail, while

issuing the order of detention, according to us, there is no