Haseena P.T vs State Of Kerala
2024 Latest Caselaw 27145 Ker

Kerala High Court

Haseena P.T vs State Of Kerala on 11 September, 2024

Author: Raja Vijayaraghavan

Bench: V Raja Vijayaraghavan

                                                         2024:KER:69236


W.P (Crl.) No. 891 of 2024            :1:


                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                      PRESENT
            THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
                                            &
                       THE HONOURABLE MR. JUSTICE G.GIRISH
WEDNESDAY, THE 11TH DAY OF SEPTEMBER 2024 / 20TH BHADRA, 1946


                             WP(CRL.) NO. 891 OF 2024

PETITIONER:

                    HASEENA P.T
                    AGED 44 YEARS
                    W/O SHAJI.P.T, PALLIKKATTUTHODI HOUSE,
                    ALANALLUR P.O., KANNAMKUNDU,
                    PALAKKAD DISTRICT,PIN - 678601


                    BY ADVS.
                    P.MOHAMED SABAH
                    LIBIN STANLEY
                    SAIPOOJA
                    SADIK ISMAYIL
                    R.GAYATHRI
                    M.MAHIN HAMZA
                    RAYEES P.
                    ALWIN JOSEPH
                    BENSON AMBROSE
                    AISWARYA K.M.



RESPONDENTS:

        1           STATE OF KERALA
                    REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY
                    TO GOVERNMENT OF KERALA (HOME DEPARTMENT),
                    SECRETARIAT, THIRUVANANTHAPURAM,
                    PIN - 695001
                                                        2024:KER:69236


W.P (Crl.) No. 891 of 2024         :2:




        2           THE DISTRICT MAGISTRATE/DISTRICT COLLECTOR
                    PALAKKAD, KENATHUPARAMBU, PALAKKAD DISTRICT,
                    PIN - 678013

        3           THE DISTRICT POLICE CHIEF
                    PALAKKAD, YAKKARA ROAD, NEAR KSRTC BUS STAND,
                    PALAKKAD DISTRICT,, PIN - 678014

        4           THE SUPERINTENDENT
                    HIGH-SECURITY PRISON, VIYYUR, THRISSUR DISTRICT,
                    PIN - 680010


                    BY ADVS.
                    ADVOCATE GENERAL OFFICE KERALA
                    ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)


OTHER PRESENT:

                    SRI K.A. ANAS, PUBLIC PROSECUTOR

THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 11.09.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                                                                       2024:KER:69236


W.P (Crl.) No. 891 of 2024               :3:




                                JUDGMENT

Raja Vijayaraghavan, J.

The above Writ Petition is filed seeking for issuance of a writ of

Habeas Corpus and and seeks the following reliefs:

i) Issue a Writ of Habeas Corpus directing the 4th respondent to produce the body of 'Mr. Hashim P.T.' the detenu and release him.

ii) Issue a writ of certiorari and thereby call for the record in connection with Ext.P2 detention order as confirmed by the 1st respondent by Ext.P4 order and set aside the same.

2. The petitioner herein is the mother of Sri. Hashim P.T., ('detenu' for

the sake of brevity), who has been ordered to be preventively

detained, in terms of Ext.P2 detention order dated 29.05.2024, issued

by the 2nd respondent under Section 3(1) of the Kerala Anti-Social

Activities (Prevention) Act, 2007 ('KAAP Act').

3. The brief facts leading to this case are as follows:

a) The District Police Chief, Palakkad, the 3rd respondent herein, has

furnished a report dated 09.05.2024 before the 2nd respondent 2024:KER:69236

recommending the initiation of proceedings under the KAAP Act to

prevent the detenu from committing further prejudicial anti-social

activities, as defined under Section 2(a) of the Act.

b) Based on the above report, the authorized detaining authority, the

2nd respondent, has issued the detention order, wherein, after

arriving at the subjective satisfaction based on the materials, came

to the conclusion that the detenu falls under the category of a

'known goonda' as defined under Section 2(o)(ii) of the KAAP Act

and that he is to be preventively detained with a view to preventing

him from committing further prejudicial anti-social activities. The

order was executed on 30.05.2024. The order was approved by

the Government on 12.06.2024. The matter was then referred to

the Advisory Board for securing their opinion. The Advisory Board

by order dated 31.07.2024 confirmed the order, after considering

the materials.

4. For declaring the detenu as a 'known rowdy', his involvement in two

crimes registered under the Narcotic Drugs and Psychotropic

Substances Act were taken note of. The details of the cases in which

the detenu got involved are as under:

2024:KER:69236

Police Sl. Crime Station/ Complaint Sections Status of Case No. Number Excise Date Involved Range

Sulthan Bathery Cr. No. 06/2023 11.10.2018 22(b) of NDPS Act

1. Excise Pending Range

Nattukal on the file of the Cr. No. Police 07.03.2024 22(b) of NDPS Act Additional Sessions

Station Court-III, Palakkad

5. Sri.P.Mohamed Sabah, the learned counsel appearing for the

petitioner raised the following contentions:

a) The crimes against the detenu are registered under the Narcotic

Drugs and Psychotropic Substances Act. According to the learned

counsel, being a drug offender, the detenu could have only been

classified as a 'rowdy', and for detaining him as a 'known rowdy',

the requirement is that he should have been found on investigation

or enquiry, on compliance initiated by persons other than police

officers in three separate instances not forming part of the same

transaction. In the case on hand, there are only two cases and 2024:KER:69236

therefore, the objective satisfaction has been wrongly entered into

by the detaining authority.

b) Proceedings under Section 107 of the Cr.P.C. have already been

initiated against the detenu. In that view of the matter, the

detaining authority ought to have considered whether preventive

detention of the detenu was necessitated in the facts and

circumstances.

c) The confirmation has not been passed within the period stipulated

under Section 10 of the Act.

d) While enlarging the detenu on bail in Crime No.103 of 2024 of the

Nattukal Police Station, which is reckoned as the last prejudicial act,

this Court had imposed stringent conditions. Before passing an

order of detention, the authority ought to have taken note of this

fact and considered whether the bail conditions imposed by this

Court were sufficient to prevent the detenu from continuing to get

involved in prejudicial activities.

6. A detailed counter affidavit has been filed by the respondents

controverting the contentions.

a) The cases in which the detenu got himself involved fall under the

purview of Section 2(i) which defines 'drug offender' and 2(j) which 2024:KER:69236

defines a 'goonda'. In that view of the matter, the classification of

the detenu as a 'known goonda' is in order.

b) Reliance is placed on the observations made by this Court in

Thejas v. Inspector General of Police, Kannur Range1 and it

is submitted that initiation of proceedings under Section 107 of the

Cr.P.C. is not a pre-condition for issuing an order under the KAAP

Act. Nothing prevents the authority from initiating proceedings

under the KAAP Act despite the invocation of proceedings under

Section 107 of the Cr.P.C. as both proceedings operate on different

planes.

c) Referring to the detention order dated 30.05.2024, the date of

approval, and the confirmation of detention on 31.07.2024, it is

submitted that the orders have been passed in strict compliance

with the stipulated time.

d) It is submitted that the involvement of the detenu in the trafficking

of intermediate quantities of narcotic drugs despite his arrest and

grant of bail in the earlier case is an indication that the bail

conditions imposed by this Court were not sufficient to dissuade the

detenu from getting involved in subsequent crimes.

[2015 (3) KLT 1] 2024:KER:69236

7. The 1st contention of the learned counsel is that the detenu ought to

have been categorized as a 'known rowdy' instead of a 'known

goonda'. The definition of 'goonda' shows that to become a 'goonda',

the person concerned must be a person who indulges in any

anti-social activity or promotes or abets any illegal activity which is

harmful to the maintenance of the public order directly or indirectly.

The definition of 'goonda' also includes several categories like

bootlegger, counterfeiter etc. and it includes a 'rowdy'. 'Anti-Social

activity' is also defined under S.2(a). On a close reading of the

definitions of 'anti-social activity', 'goonda', 'known goonda', 'rowdy'

and 'known rowdy', it is clear that a person who satisfies the

definition of 'rowdy' can also become a 'goonda' provided he indulges

in any anti-social activity or promotes or abets any illegal activity

which is harmful to the maintenance of public order directly or

indirectly. If a 'rowdy' as defined in S.2(t) indulges in any such

activity, he becomes a 'goonda'. If such a 'goonda' is involved in two

such instances, he becomes a 'known goonda'. There is no difficulty in

properly interpreting in what cases a 'rowdy' as defined in S.2(t)

becomes a 'goonda' and a 'known goonda' (See: Sapna P.P. v.

State of Kerala2). In that view of the matter, we reject the first

[2016 (3) KHC 149] 2024:KER:69236

contention of the detenu and hold that the classification of the detenu

as a 'known goonda' cannot be faulted and the objective satisfaction

arrived at by the detaining authority is in order.

8. The next contention of the learned counsel is that in view of the

initiation of proceedings under Section 107, there was no need to

initiate proceedings under the KAAP Act. The records reveal that the

Deputy Superintendent of Police, Mannarkad had moved the Sub

Divisional Magistrate, Ottappalam requesting for initiation of

proceedings under Section 107 of the Cr. P.C., and on its basis M.C

No. 50/2024 has been initiated against the detenu. The detenu got

involved in the last prejudicial act on 7.3.2024. The order reveals that

the detaining authority was aware of the pendency of the proceedings

under Section 107 of the Cr.P.C. As held in Anita Antony v. State of

Kerala and Others3, the relative scope of the two proceedings is

different and independent. Proceedings under S.107, Cr. P.C, is in the

nature of security for keeping peace and public tranquility, and the

free movement of such a person is not curtailed at all. 107

proceedings is not an embargo to the initiation of proceedings under

the KAAP Act.

[2022 KHC OnLine 455] 2024:KER:69236

9. The next contention is the failure to pass orders in terms of the

governing statute. The learned counsel has not been able to establish

any violation of procedure while passing the order of detention.

10. 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 satisfaction is vitiated by mala fides or by 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 Another4).

[1985 (2) SCC 24)] 2024:KER:69236

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/-

GIRISH.G, JUDGE PS/11/9/24 2024:KER:69236

APPENDIX OF WP(CRL.) 891/2024

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE REPORT DATED 09.05.2024 SUBMITTED BY THE RESPONDENT NO.3 BEFORE THE RESPONDENT NO.2.

Exhibit P2 TRUE COPY OF THE DETENTION ORDER DATED 29.05.2024 PASSED BY THE RESPONDENT NO.2

Exhibit P3 TRUE COPY OF THE REASONS RECORDED FOR PASSING EXHIBIT P2 DETENTION ORDER DATED 29.05.2024

Exhibit P4 TRUE COPY OF THE ORDER DATED 31.07.2024 PASSED BY RESPONDENT NO.1

Exhibit P5 TRUE COPY OF THE ORDER DATED 25.04.2024 IN B.A NO. 2467/2024 PASSED BY THIS HON'BLE COURT.