Kerala High Court
Aaliya Ashraf vs State Of Kerala on 5 November, 2024
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
W.P (Crl.) No. 961 of 2024 :1: 2024:KER:81621
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR. JUSTICE JOBIN SEBASTIAN
TUESDAY, THE 5TH DAY OF NOVEMBER 2024 / 14TH KARTHIKA, 1946
WP(CRL.) NO. 961 OF 2024
PETITIONER:
AALIYA ASHRAF
AGED 28 YEARS
D/O ASHRAF, FATHIMAS, CHALAD P.O,
PALLIKKUNNU, KANNUR, PIN - 670104
BY ADVS.
M.H.HANIS
P.M.JINIMOL
T.N.LEKSHMI SHANKAR
RIA ELIZABETH T.J.
NANCY MOL P.
ANANDHU P.C.
NEETHU.G.NADH
SINISHA JOSHY
ANN MARY ANSEL
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF-
SECRETARY TO GOVERNMENT, HOME AND VIGILANCE
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE
KANNUR DISTRICT, PIN - 670002
W.P (Crl.) No. 961 of 2024 :2: 2024:KER:81621
3 THE DISTRICT POLICE CHIEF
KANNUR CITY, PIN - 670002
4 THE CHAIRMAN
ADVISORY BOARD, KAAPA, SREENIVAS,
PADAM ROAD, VIVEKANANDA NAGAR, ELAMAKKARA,
ERNAKULAM DISTRICT, PIN - 682026
5 THE SUPERINTENDENT OF JAIL,
CENTRAL VIYYUR, THRISSUR, PIN - 670004
BY ADVS.
SRI.K.A.ANAS, PUBLIC PROSECUTOR.
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 05.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P (Crl.) No. 961 of 2024 :3: 2024:KER:81621
"CR"
JUDGMENT
Raja Vijayaraghavan, J.
The petitioner is the sister of Saad Ashraf ('detenu' for the sake of
brevity). The detenu is undergoing detention pursuant to Ext.P1 order
dated 26.07.2024 issued by the 2nd respondent under Section 3(1) of the
Kerala Anti-Social Activities (Prevention) Act, 2007 ('KAAP Act' for brevity).
The order was approved by the Government on 08.08.2024 and the case
was referred to the Advisory Board. The Advisory Board gave its opinion on
30.09.2024 and on its basis, the detention order was confirmed by the
Government on 09.10.2024. By this Writ Petition, the petitioner challenges
Ext.P1 order and seeks for the issuance of a Writ of Habeas Corpus
commanding the production of the body of the detenu and to set him at
liberty.
Short facts:
2. The records made available before this Court reveal that the
detenu was earlier detained under Section 3(1) of the KAAP Act and a
detention order was passed on 26.07.2023. He underwent detention for six
months from 04.08.2023 to 03.02.2024. After his release, he got involved in
Crime No.35/2024 of the Excise Enforcement and Narcotic Squad, Kannur.
W.P (Crl.) No. 961 of 2024 :4: 2024:KER:81621
3. On 25.06.2024, the District Police Chief submitted a proposal
seeking the initiation of proceedings. The detaining authority after arriving at
the requisite satisfaction, issued Ext.P1 detention order.
4. The details of the cases in which the petitioner is involved are
as under:
Sl. Crime No. Police Offences involved Date of Present status
No. Station Under Sections Occurrence of the case
1 250/2019 Valapattanam U/s 353, 308 r/w. 03.03.2019 S.C.No.185/2021
Section 34 IPC & JFMC-II,Kannur
Section 3(1) of PDPP
Act
2 671/2022 Thalasseri 21(a) of NDPS Act 22.09.2022 C.C.No. 859/2023
JFMC,Thalasseri
3 314/2023 Thalasseri U/s 21(b) of NDPS Act 16.03.2023 pending
is altered to 29 of
NDPS Act.
4 35/2024 Kannur Excise 21(a) of NDPS Act 03.06.2024 Pending
Enforcement &
Anti Narcotic
Squad
5. The records reveal that a rowdy history sheet was opened
against the petitioner on 10.04.2019 and after that, a request for initiation of
proceedings under Section 107 of the Cr.P.C. was submitted before the SDM,
Thaliparambu on 17.04.2023. In the impugned order, it is mentioned that in
spite of taking all measures to curb the anti-social activities, the detenu
continues to be a known goonda and is involving himself in further
W.P (Crl.) No. 961 of 2024 :5: 2024:KER:81621
prejudicial activities.
6. Sri. M.H. Hanis, the learned counsel appearing for the
petitioner, advanced the following contentions:
a) After the earlier order of detention for his involvement in three cases,
two of which were registered under the Narcotic Drugs and
Psychotropic Substances Act of 1985, the petitioner got involved in
only one subsequent crime. By referring to Section 13(2)(i) of the
KAAP Act, it is urged that after his release, the detenu should be
found to have been involved in an offence of the nature described in
Section 2(o) of the KAAP Act, which defines a 'known goonda'.
According to the learned counsel, if that be the case, for arriving at
the requisite objective satisfaction, Section 2(o)(i) or (ii) of the KAAP
Act should again be satisfied and the mere involvement in one crime
would not suffice.
b) Crime No. 35 of 2024 is registered under section 21(a) of the NDPS
Act and involves a small quantity of brown sugar weighing 400 mg.
According to the learned counsel, in view of the law laid down in
Luciya Francis v. State of Kerala1, mere possession of a small
quantity of narcotic substance cannot be construed as part of stock
[2023 (5) KHC 255]
W.P (Crl.) No. 961 of 2024 :6: 2024:KER:81621
unless it is manifested with evidence of intention to sell.
c) There is serious non-application of mind by the detaining authority as
it has been noted in the order that what was found in the possession
of the detenu is 400 gm instead of 400 mg. It is urged that 400 gms
amount to commercial quantity whereas 400 mg would only come in
the category of a small quantity, which case can be closed by
pleading guilty.
d) Crime No. 250 of 2019 cannot be reckoned for the purpose of
classifying the detenu as a 'known rowdy'. Though Section 308 of
the IPC has also been incorporated, records do not reveal that any
injury was sustained by the Police Officers. The said case ought to
be excluded on account of the fact that the case was registered
based on a complaint made by a police officer.
f) In Stenny Aleyamma Saju v. State of Kerala and Ors.2, a Full
Bench has held that the filing of a final report under Section 173 (2)
of the Cr.P.C. is not a pre-requisite to invoke the power under Section
3 of the KAAP Act. However, it has been clarified that mere
registration of the FIR is not enough, and something more is
necessary to meet the requirements under the Statute, to record the
[2017 (3) KHC 517]
W.P (Crl.) No. 961 of 2024 :7: 2024:KER:81621
objective as well as subjective satisfaction. In Crime No. 314 of 2023
and Crime No. 35 of 2024, no such materials were brought to the
notice of the detaining authority. The police have not yet obtained
the report from the scientific lab to conclusively establish that the
contraband seized was a prohibited drug.
g) It is further submitted that the detenu submitted representations
dated 06.08.2024 and 14.08.2024, and his sister submitted a
representation on 14.08.2024 before the Advisory Board. Though the
representation dated 14.08.2024 submitted by the sister was
forwarded to the Government, it was not independently considered.
7. Sri. K.A. Anas, the learned Public Prosecutor opposed the
contentions advanced by the learned counsel appearing for the petitioner.
Reliance is placed on the observations of this Court in Radhika B. v. State
of Kerala and Ors.3 and it is urged that the contention that the criteria of
being classified as a 'known goonda' should again be satisfied for passing a
fresh detention order cannot be sustained. It is further submitted that the
principles of law laid down in Lucia Francis (supra) will not be attracted as
the same has been clarified by this Court in Salmath E. v. State of
Kerala4. The learned counsel would then submit that the mentioning of the
[2015 (2) KHC 183]
[2024:KER:57787]
W.P (Crl.) No. 961 of 2024 :8: 2024:KER:81621
quantity of narcotic drug seized as 400 gm instead of 400 mg will not make
any difference as the provision of law mentioned is that of possession of a
small quantity. Insofar as Crime No. 250 of 2019 is concerned, it is
submitted that the said crime was registered inter alia under Sections 353
and 308 of the IPC, on the allegation that on 03.03.2019, at 1.30 a.m., the
petitioner drove his car and attempted to mow down the police officers and
destroyed the jeep causing loss to the tune of Rs.20,000/-. Relying on the
observations in Joicy v. State of Kerala and Others5, it is submitted that
the said crime can also be used for classifying the detenu as a 'known
goonda'. It is further submitted that insofar as Crime Nos.314 of 2023 and
35 of 2024 are concerned, the entire records were furnished to the detenu
and the detenu has also signed the receipt acknowledging the receipt of all
records. Finally, it is submitted that the Government has examined the
representation dated 14.8.2024 and the same was responded to and its fate
communicated to the detenu.
8. We have considered the submissions and have perused the
records.
9. The first contention advanced by the learned counsel revolves
around an interpretation of Section 13 of the KAAP Act. The said provision
reads as under:
[2018 (1) KHC 37]
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13. Revocation of detention order
1) A detention order may, at any time, be revoked or modified by
the Government.
(2) The revocation or expiry of a detention order shall not be a bar
for the issuance of another detention order under section 3
against the same person, if he continues to be a person falling
within the definition of known rowdy or known goonda as given
in section 2 (o) or section 2 (p) and if,--
(i) after release, he is, found to have, again involved in an
offence of the nature described in section 2(o) or section 2
(p) on at least one instance; or
(ii) the facts, which came to the notice of the Government or the
authorised officer after the issuance of the earlier detention
order, considered along with previously known facts are
sufficient to cause a reasonable apprehension that he is
likely to indulge in or promote or abet antisocial activities; or
(iii) the procedural errors or omissions, by reason of which the
first order was revoked, are rectified in the procedure
followed with regard to the subsequent order, even if the
subsequent order is based on the very same facts as the
first order.
10. The provision allows for the issuance of another detention
order against the same person even if a previous detention order has
expired or been revoked. However, such an order can be passed only if -
a) He continues to be a person falling within the definition of
'known rowdy' or 'known goonda' as defined under section
2(o) or section 2(p);
W.P (Crl.) No. 961 of 2024 :10: 2024:KER:81621
b) After his earlier release by expiry or revocation, he gets
involved in an offence of the nature described in section 2(o)
or section 2(p) at least once;
c) New facts, considered along with previously known facts,
create or cause a reasonable apprehension in the mind of the
authority that the proposed detenu is likely to indulge in or
promote or abet antisocial activities
d) The procedural errors or omissions that led to the revocation of
the previous order are rectified in the new order, even if the
subsequent order is based on the very same facts as the first
order.
11. The principle behind the insertion of such a provision can be
gathered from the pronouncement of the Apex Court in the Constitution
Bench in Hadibhandu Das v. District Magistrate, Cuttack6, wherein it
was held that the revocation or expiry of the previous order cannot lead ipso
facto to a revival of the detention by the passing of a fresh order, because a
person who is entitled to his liberty can only be put in second jeopardy when
there are additional or fresh facts against him.
12. A full Bench of this Court in Radhika (supra) had occasion to
interpret Section 13 of the KAAP Act while considering the question as to
AIR 1969 SC 43
W.P (Crl.) No. 961 of 2024 :11: 2024:KER:81621
whether Praseetha v. State of Kerala7, was correctly decided. The
question that arose was whether the alleged occurrences taken into
consideration while passing an order of detention, which was revoked by the
Government under Section 10(4) of the KAAP Act on the advice of the
Advisory Board, could be counted along with the later prejudicial acts, for
issuance of another detention order under Section 3 of the Act in terms of
Section 13(2) thereof. After considering the statutory provisions, it was
observed as under in paragraph 8 of the judgment:
8. When subsequent conduct of the same person results in prejudicial
activity or activities reckonable in terms of the Act, that will trigger and
maintain a live - link with the earlier prejudicial activities, though such
earlier prejudicial activities, by themselves, would not have weighed as
sufficient enough to sustain the earlier detention order. The advice of the
Board in relation to an earlier detention order is only as regards the
sufficiency of the cause as to that detention order, on the basis of those
prejudicial activities which were reckoned to pass that particular
detention order. Such advice of the Board does not purge the efficacy of
those prejudicial activities or their vigor as to criminality, to exclude them
from being counted when the person concerned involves in prejudicial
activities subsequent to the revocation of that detention order. When
those earlier prejudicial activities are followed by subsequent prejudicial
activity or activities, all of them ought to be taken as a string of potent
activities which will sustain with continuity of live - link for the purpose
of another order of detention. If the competent authority enters
satisfaction as to the requirement to issue another detention order,
taking into consideration all or any of the earlier prejudicial activities
2009 (4) KHC 382
W.P (Crl.) No. 961 of 2024 :12: 2024:KER:81621
along with the subsequent prejudicial activities, there is no illegality in
that. That is undoubtedly within terms of the Act.
13. As held in Radhika (supra), when the same individual engages
in prejudicial activities after the expiry or revocation of an earlier detention
order, these later actions create a continuous, "live link" with the prior
activities. This link remains active, even if the initial prejudicial acts alone
would not have justified a detention order at the time. This principle allows
authorities to initiate steps to detain habitual offenders who continue to pose
a threat, provided all legal requirements are satisfied. In other words, when
subsequent prejudicial conduct follows earlier actions, the combined pattern
of behavior forms a sequence of potent acts that support a continuous live
link, justifying another detention order. If the competent authority is satisfied
that another detention order is necessary, taking into account any or all of
the previous and recent prejudicial activities, such an order cannot be held
objectionable.
14. The petitioner had already been classified as a 'known rowdy'
and an order of detention had been passed against him. After the expiry of
the period of detention, he got involved in another crime. The only
requirement is that while he continues to be a "known rowdy", he gets
involved in at least one instance of an offence of the nature described in
Section 2(o) or 2(p) of the KAAP Act. In the case on hand, the detenu has
W.P (Crl.) No. 961 of 2024 :13: 2024:KER:81621
got involved in another crime which entitles him to be classified as a goonda
and if the detaining authority arrives at the requisite satisfaction that the
new facts along with the previously known facts are sufficient to cause a
reasonable apprehension that he is likely to indulge in or promote or abet
antisocial activities, then the said satisfaction cannot be held as unsound. In
that view of the matter, to satisfy the criteria under Section 13(2)(i) of the
KAAP Act, the only requirement is that after the revocation or expiry of an
earlier detention order, the individual concerned continues to be a person
falling within the definition of a 'known rowdy' and he gets involved in at
least one instance in an offense of the nature entitling him to be classified
under Section 2(o) or 2(p) as the case may be.
15. Insofar as Crime No. 35 of 2024 is concerned, the contention is
that mere possession of a small quantity of Brown Sugar cannot be
construed as part of stock unless it is manifested with evidence of intention
to sell. Profuse reliance is placed on the observation in Luciya (supra),
wherein this Court had observed that the word "stocks" occurring in Section
2(i) of the KAAP Act must be in such a nature that the same is kept in
possession for sale and not for personal use. We are unable to accept the
contention of the learned counsel that the Brown Sugar kept in his
possession has to be regarded as for personal consumption and not for sale.
This question was considered by a Division Bench of this Court in Ashraf v.
W.P (Crl.) No. 961 of 2024 :14: 2024:KER:81621
Inspector General of Police, Kochi Range8, wherein the same
contention was raised and the same was repelled by holding as under:
2. ................The allegations against the petitioner in those cases, as
rightly noted by the Advisory Board, fall squarely under S.2(i), S.2(j) and
consequently under S.2(o)(ii) of KAAPA. Noticing the substance of the
allegations of those cases, the plea of the petitioner that mere
possession would not attract those provisions was rightly repelled by the
Advisory Board. 'Possession' is necessarily an inseparable component of
any or all of the activities of stocking, transportation, sale or distribution.
Hence, the mere absence of the word 'possession' in the definition of the
term 'drug - offender' in KAAPA is not decisive to exclude a person found
to be in possession of any drug in contravention of the Narcotic Drugs
and Psychotropic Substances Act or in contravention of any other law for
the time being in force, from the ambit of 'drug - offender' as defined in
S.2(i) of KAAPA and therefore from the purview of the terms 'goonda'
and 'known - goonda' defined respectively in Clauses (j) and (o) of S.2
of KAAPA. This is the law. The petitioner's plea that in the absence of the
word 'possession' in those definition clauses, he cannot be covered by a
restraint order under KAAPA has, therefore, been rightly repelled by the
Advisory Board.
16. The very same issue had cropped up for consideration before
this Court in Ansar T.A. V. State of Kerala and Ors.9, and after noticing
the observations in Ashraf (supra) had observed as follows in paragraph No.
8 of the judgment:
"8. ...................In the solitary case registered under S.27 of the Arms
[2014 (3) KHC 695]
[2017 (2) KHC 413]
W.P (Crl.) No. 961 of 2024 :15: 2024:KER:81621
Act, the allegation is that he was found consuming ganja in the open.
We are unable to accept the contention of the counsel that the aforesaid
crimes cannot be taken into account to characterize the petitioner as a
"known goonda". The contention appears to be that possession of ganja
is not included in S.2(i) of the KAAPA which defines a drug offender and
in that view of the matter, he cannot be termed as a goonda. We are
unable to agree. S.2(i) of the KAAPA clearly defines a "drug offender" as
one who illegally cultivates, manufactures, stocks, transports, sells or
distributes any drug in contravention of the NDPS Act, 1985 or in
contravention of any other law for the time being in force, or who
knowingly does anything by abetting or facilitating such activity. Being
found in possession of a narcotic drug would definitely attract the vice of
S.2(i) of the KAAPA, as the definition is couched in such wide language.
Even a person who acts in contravention of any other law relating to
Narcotic Drug or a person who abets or facilitates activity in drugs will
fall within the ambit of the term "drug offender" as defined. Further,
each of the activity in S.2(i) of the KAAPA would take in possession of
the Narcotic Substance as well. As held by this Court in Ashraf v.
Inspector General of Police, 2014 (3) KHC 695, the mere absence of the
word "possession" in the definition of the term "drug offender" in KAAPA
is not decisive to exclude a person found to be in possession of any drug
in contravention of the NDPS Act, 1985 or any other law for the time
being in force. We are therefore not impressed with the said contention
and the same is rejected."
17. Brown Sugar cannot be legally possessed by the individual for
his own consumption as its possession is prohibited under law. In that view
of the matter, the contention of the learned counsel that the petitioner was
possessing Brown Sugar for his own use and the same cannot be reckoned
W.P (Crl.) No. 961 of 2024 :16: 2024:KER:81621
for initiating proceedings against him cannot be accepted as held by this
Court in Salmath (supra).
18. Insofar as the error in mentioning the quantity of Brown Sugar
as 400 gm instead of 400 mg is concerned, no prejudice can be said to have
been caused, as it is clearly mentioned that the provision applicable is 21(a)
of the NDPS Act, which penalises the possession of a small quantity of
drugs. Furthermore, the impugned order will not reveal that the detaining
authority proceeded on the basis that commercial quantity of drugs were
seized from the possession of the detenu.
19. The next contention is that Crime No. 250 of 2019 cannot be
reckoned for the purpose of classifying the detenu as a 'known rowdy'. The
allegation in Crime No.250 of 2019 is that on 3.3.2019 at 1:30 Hours, while
the police party was on night patrolling duty, the accused, which included
the detenu, drove the car towards the police jeep with intent to kill the
police personnel and damaged the Jeep causing loss to the tune of
Rs.20,000/-. The offences alleged include Sections 353 and 308 of the IPC.
It needs to be reiterated that the disqualification envisaged under Section
2(p)(iii) of the KAAP Act for the cases arising out of complaints initiated by
police officers has no applicability for those cases where the police officers
figure as complainants due to the mere reason that the criminal law is set
into motion at their instance if the crime is one in which they are not having
W.P (Crl.) No. 961 of 2024 :17: 2024:KER:81621
any personal grievance against the accused. Thus, if the crime is in respect
of the obstruction caused to the discharge of the official duty of the Police
Officer or assault committed upon a Police Officer with the intention to deter
him from discharging his official duty, as envisaged under Sections 353 or
332 of the Indian Penal Code, it cannot be classified as a case where the
Police Officer concerned is having a personal grievance against the accused.
Such cases will not come under the exclusion of complaints initiated by
Police Officers, envisaged under Section 2(p)(iii) of the KAAP Act. On the
other hand, if the case is one registered on the basis of a complaint of a
Police Officer that he has been assaulted by an accused as a result of the
personal enmity of the accused with him in connection with some issues
which have no direct nexus with the discharge of official duty of that Officer,
then such cases which originated on the basis of the complaint of the Police
Officer, may come within the purview of the exclusion envisaged under
Section 2(p)(iii) of the KAAP Act (See Farsana v State of Kerala 10).
20. A Division Bench of this Court had the occasion to consider this
aspect in Joicy (supra), wherein it has been held in paragraph No.12 of that
judgment as follows:
"12. Of - course, in these two crimes, the de facto complainants
are the Assistant Sub Inspectors of Police. The complaints were
preferred by them as they sustained injuries in the attack by the detenu
[2024:KER:58715]
W.P (Crl.) No. 961 of 2024 :18: 2024:KER:81621
and the co - accused and they had given statements while undergoing
treatment in the hospital. It is significant to note that the injured though
Police Officers are the two victims in the attack by the detenu. They are
two individuals / human beings. Just because of the fact that they are
Police Officers, they do not cease to be human beings. The provisions of
this Act will no way curtail the rights of the Police Officers. At no stretch
of imagination it could be construed that the words employed in Section
2(p)(iii) that "complaints initiated by persons other than Police Officers"
would mean that when Police Officers are attacked and complaints are
registered against the assailants those cases shall not be reckoned for
passing an order under Section 3 of KAAPA for issuing detention order
against the persons who are repeatedly indulging in criminal activities
causing threat, fear, nuisance and disturbance to the society at large. In
fact, the Police Officers are in a better position than ordinary citizen as
they were prevented from discharging their official duty. In the course of
that they sustained injuries. The argument advanced by the learned
counsel for the petitioner, if accepted, would mean that even if Police
Officers are assaulted any number of times, the assailants could not be
brought to book under the KAAPA. The intention of legislature could
never be so. Clause (iii) of Section 2(p) of KAAPA would only indicate
misuse of powers by Police Officers and to safeguard the interest of
detenu. It appears that in both these incidents while the detenue along
with the co - assailants were creating threat and fear in the public, the
duty bound police personnel attempted to prevent them and avert
causing terror and threats to public at large by them and tried to
maintain law and order at the respective places, but they were
wrongfully attacked with deadly weapons and attempted to murder
them. In fact, the records would indicate that the detenu is a dangerous
person, who is involved in prejudicial activities and will not spare even
Police Officials who are supposed to protect law and order situation for
the welfare and security of the general public, which is of prime
W.P (Crl.) No. 961 of 2024 :19: 2024:KER:81621
importance and that the detenu is a person who has no respect towards
law and order. The embargo in Section 2(p) (iii) of KAAPA does not mean
to say that complaints lodged by Police Officers who sustained injuries in
an attack by the detenu, which resulted in launching of prosecution
against the assailants cannot be reckoned to pass a detention order to
bring them under the definition of known rowdy or Known goonda. The
intention of legislation could only be to avoid or prevent misuse or
exploitation of the powers of Police personnel and it could never be to
discard the complaints of Police Officers when they themselves become
victims in the attack by such miscreants which is quite often now a days.
So, it is not correct to conclude that these two crimes could not be
reckoned so as to bring the detenu within the sweep of Section 2(p)(iii)
of KAAPA and consequently to pass an order under Section 3 of KAAPA.
So at any cost, it cannot be construed that the detaining authority with
non - non-application of mind disregarded the provisions of the Act and
passed the order of detention against the detenu. A hyper-technical
approach is not possible, though preventive detention is preventive and
not punitive."
In that view, the interdict contained in Section 2(p)(iii) of the KAAP Act
would not be attracted in every case where Police Officers are the
complainants.
21. The next contention is with regards to Crime No. 314/2023 and
Crime No.35/24 registered under the NDPS Act, 1985. In both these cases, the
detenu was allegedly found in possession of Brown Sugar and the seizure was
made in the presence of independent witnesses. The contention appears to be
that the mandate of law laid down in Stenny Aleyamma (supra) has not
W.P (Crl.) No. 961 of 2024 :20: 2024:KER:81621
been complied with. Both these crimes are under investigation. The Full Bench
in Stenny Aleyamma (supra) had held that unlike the case of 'punitive
detention' where the purpose is to punish the offender on proving the guilt; in
the case of 'preventive detention', it is only a prudent action to prevent the
possible damage which could be caused to the 'public order' and the society at
large. As such, it has to be prevented at the earliest opportunity. The detaining
authority, who is mulcted with the duty in this regard, cannot wait for the
completion of the investigation and submission of the final report under
Section 173(2) of Cr.P.C. to invoke the jurisdiction, keeping its eyes shut till
such time; which otherwise will only be an instance of dereliction of duty. The
only requirement is that he should be in a position to record the 'satisfaction'
with regard to the requirements under the Statute, based on the information
made available, whether it be a final report or other materials. It was held that
mere registration of FIR is not enough under such circumstances. If the data
collected in such a process is adequate enough to meet the requirements
under the Statute, so as to record the 'objective' as well as 'subjective
satisfaction' to the extent it is necessary, it is open for the detaining authority
to have it acted upon and need not wait till completion of the investigation
and submission of the charge sheet under Section 173(2) of the Cr.P.C. In the
case on hand, we are satisfied that the detaining authority had arrived at the
W.P (Crl.) No. 961 of 2024 :21: 2024:KER:81621
requisite satisfaction based on materials available that the issuance of an
order of detention was necessary to curb the activities of the detenu.
22. The last contention is with regard to non-consideration of the
representation dated 14.8.2024 submitted by the sister to the Advisory
Board. In the confirmation order, the representation dated 06.08.2024 and
14.08.2024 submitted by the detenu, representation dated 14.08.2024
submitted by Smt. Aliya Ashraf and representation dated 25.09.2024
submitted by the counsel before the Advisory Board have been referred as
item Nos. 5, 6 and 7. In the confirmation order, it has been mentioned that
the representations submitted by and on behalf of the detenu have been
considered. The records also reveal that the representations submitted by
and on behalf of the detenu have been considered and their fate
communicated.
23. It is well settled that subjective satisfaction entertained by the
detaining authority is not justiciable. This Court does not sit in appeal in
proceedings under Article 226 of the Constitution of India over the decisions
taken by the detaining authority on the basis of the materials placed before
the detaining authority as to whether preventive detention is necessary or
warranted. The short area of jurisdiction is to ascertain whether subjective
satisfaction is entertained properly on the basis of materials placed before
the detaining authority. If the entertainment of the latter, subjective
W.P (Crl.) No. 961 of 2024 :22: 2024:KER:81621
satisfaction is vitiated by mala fides or by a total absence of materials or by
reference to and reliance on materials which cannot legally be taken note of,
certainly the powers of judicial review vested in this Court can be invoked
and the order of detention on the basis of such alleged subjective
satisfaction can be set aside. But, certainly, if there are materials, it is not
open to this Court to sit in appeal over the subjective satisfaction entertained
by the detaining authority. (See: Ibrahim Bachu Bafan and Another v.
State of Gujarat and Another11).
24. Having considered the entire facts, we are of the view that the
detenu has not made out any case for interference.
This Writ Petition is dismissed.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
PS/04/11/24
[1985 (2) SCC 24)]
W.P (Crl.) No. 961 of 2024 :23: 2024:KER:81621
APPENDIX OF WP(CRL.) 961/2024
PETITIONER EXHIBITS
Exhibit - P1 A TRUE COPY OF THE ORDER
NO.DCKNR/8342/2024-SS1 DATED 26.07.2024
OF THE 2ND RESPONDENT
Exhibit - P2 A TRUE COPY OF THE REPRESENTATION DATED
14.08.2024 SUBMITTED BEFORE THE 1ST
RESPONDENT
Exhibit - P3 A TRUE COPY OF THE POSTAL ACKNOWLEDGMENT
CARD EVIDENCING THE RECEIPT OF EXT P2
Exhibit - P4 A TRUE COPY OF THE REPRESENTATION DATED
14.08.2024 SUBMITTED BEFORE THE 4TH
RESPONDENT
Exhibit - P5 A TRUE COPY OF THE POSTAL ACKNOWLEDGMENT
CARD EVIDENCING THE RECEIPT OF EXT P4
