Narcotic Drugs - Anti Social Activities - Small Quantity - Detention Order is not Sustainable [JUDGMENT]

Narcotic Drugs and Psychotropic Substances Act, 1985 - Anti Social Activities (Prevention) Act, 2007 (Kerala) - S. 3 - Power to make orders for detaining Known Goondas and Known Rowdies - four cases regarding the involvement of the detenu are in small quantity of contraband narcotics, whereas there is involved a large quantity in the case in which he had been acquitted - The fact that the crimes pending against the detenu were only of small quantity might have persuaded the government to release the detenu - the detention order is not sustainable, since the representation by the detenu under Article 22(5) of the Constitution and under Section 7(2) of KAPPA Act has not been given real and proper consideration by the Government.

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON
WEDNESDAY,THE 21ST DAY OF NOVEMBER 2018 / 30TH KARTHIKA, 1940
WP(Crl.).No. 316 of 2018
PETITIONER/S
RAFIYA
BY ADVS. SRI.MATHAI VARKEY MUTHIRENTHY SMT.ANITHA MATHAI MUTHIRENTHY
RESPONDENT/S:
1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,THIRUVANANTHAPURAM - 695 001.
2 DISTRICT POLICE CHIEF ERNAKULAM(RURAL), ALUVA 3 DISTRICT MAGISTRATE ERNAKULAM - 682 011.
4 ADVISORY BOARD KAA(P)A, REPRESENTED BY ITS SECRETARY, ERNAKULAM - 682 011.
BY ADVS. SRI SURESH BABU THOMAS, ADDL. DGP SRI K A ANAS, SPL. GOVERNMENT PLEADER
J U D G M E N T
Ashok Menon, J.
The wife of the detenu, who has been detained under the provisions of Section 3(1),(2) of the Kerala Anti-Social Activities Prevention Act, 2007 (for short “the KAAPA”), is before us with a prayer for issuance of a writ of habeas corpus directing the respondents to produce the detenu before this Court and set him at large. The allegation against the detenu is that as per the report of the Police Chief (Rural), Ernakulam (2nd respondent herein) the detenu is a 'known goonda' as defined under the KAAPA and has been indulging in several crimes under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "NDPS Act') and that the activities of the detenu is prejudicial to the peaceful life of the public at large. The 2nd respondent (District Police Chief (Rural)) as the Sponsoring Authority, vide Ext.P1 report dated 28.03.2018 pointed out that there are altogether five cases against the detenu, and that he was convicted to three years rigorous imprisonment and a fine of Rs.25,000/- in one of the cases registered against him. The petitioner admits that Crime No.1925/2013 of Perumbavoor Police Station, which was charge sheeted against the detenu as S.C.No.446/2013 on the file of the Addl.Sessions Court-VI, Ernakulam, ended in conviction of the detenu under Section 20(b)(ii)(B) of the NDPS Act. However, the detenu preferred an appeal and vide judgment at Ext.P2, the appeal was allowed and the accused was acquitted after setting aside the conviction and sentence imposed by the trial court. The other four crimes referred to in Ext.P1 are on the basis of the complaints registered by the Police.


2. The learned Counsel appearing for the petitioner submits that the impugned order of the Detaining Authority at Ext.P3 dated 15.04.2018, was confirmed by the Advisory Board, and approved by the 1st respondent vide Ext.P4 dated 02.05.2018 and Ext.P5 order dated 14.06.2018. The detenu has been directed to be detained, which according to the learned Counsel, is not sustainable for various grounds stated in the Writ Petition and on the grounds argued by the learned Counsel.
3. The first ground raised is that there was no subjective satisfaction and no proper and real consideration of the representation made by the detenu. It is also submitted that there is three months delay in making the order of detention and four days delay in dispatching the order of detention to the Government, which needs to be made forthwith as per the provisions in the Statute.
4. The last prejudicial act was on 23.02.2018 in Crime No.739/2018 of Perumbavoor Police Station for an offence under Section 20(b)(ii)(A) of NDPS Act. The detenu was arrested on 23.02.2018 and he was remanded on 24.02.2018. The Sponsoring Authority, by his report at Ext.P1 dated 28.03.2018, submitted a proposal for detention of the detenu, which was made after a month's delay and the detention order at Ext.P3 is made on 15.04.2018, which is made in less than a month's time after the report is submitted by the Sponsoring Authority. From the date of arrest or from the date of last prejudicial act, the detention order is made within a period of two months. This cannot be termed as a delay, which has caused prejudice to the detenu.


5. The learned Counsel would then point to Ext.P4 order of approval by the 1st respondent and submit that the order was made only on 02.05.2018 and that there was delay in forwarding Ext.P3 order to the Government for approval, which according to the provisions, should have been done forthwith.
6. A reading of Ext.P3 order would indicate that the detenu was in detention even prior to this order of detention and had completed that detention on 26.11.2008, and consequent to that he has been involved in one crime in 2013 and four crimes in 2016. Section 3(3) of the KAAPA reads thus:-
"3. Power to make orders for detaining Known Goondas and Known Rowdies:
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(3) When any order is made under this section by the authorised officer under sub-section (2), he shall forthwith report the fact to the Government and the Director General of Police, Kerala, together with a copy of the order and supporting records which, in his opinion, have a bearing on the matter and no such order shall remain in force for more than 12 days, excluding public holidays, from the date of detention of such Known Goonda or Known Rowdy, unless, in the meantime, it has been approved by the Government or by the Secretary, Home Department if generally so authorised in this regard by the Government."
7. The Authorised Officer, who makes the order under sub-section (2) shall forthwith report the fact to the Government. The learned Counsel would point out that there is four days delay, and therefore, it has to be viewed as causing prejudice to the detenu. The learned Government Pleader contends that sub-section (3) of Section 3 has to be read as a whole. It is true that the detaining authority, who makes the order under sub-section (2) has to forthwith report the fact to the Government and the Government has 12 days, excluding the public holidays, from the date of detention of such known goonda or known rowdy to approve the detention order. The dispatch, which has to be forthwith, is to ensure that the detention order is not rendered a nullity after the arrest of the detenu, merely for reason of it having not been approved by the Government. It is directory in nature and the delay if at all, cannot cause any prejudice to the detenu, is the contention. In the instant case, the order was despatched within four days to the Government, who has, as early as on 02.05.2018, approved the detention order vide Exts.P4 and P5, which is well within the stipulated time of 12 days.
8. The Hon'ble Supreme Court in Hetchin Haokip v. State of Manipur & others, (2018) 9 SCC 562 held thus:


"14. The High Court held in its impugned judgment that: “While the delay in furnishing grounds of detention under Section 8 of the Act may prejudice the right of the detenu as guaranteed under Article 22(5) of the Constitution, furnishing of the grounds of detention under Section 3(4) may not prejudice the detenu so long as the report along with the grounds of detention are furnished within a reasonable time, but certainly within 12 days of the detention…If the report along with the grounds of detention is submitted beyond 12 days, it would certainly vitiate the detention order as without the report and the grounds of detention, the State Government could not have applied their minds whether to approve or not to approve the detention order under Section 3(4) of the Act.” 
15. The High Court is not correct in holding that as long as the report to the State Government is furnished within twelve days of detention, it will not prejudice the detenu. It is settled law that a statute providing for preventive detention has to be construed strictly. While “forthwith” may be interpreted to mean within reasonable time and without undue delay, it certainly should not be laid down as a principle of law that as long as the report to the State Government is furnished within 12 days of detention, it will not prejudice the detenu. Under Section 3(4), the State Government is required to give its approval to an order of detention within twelve, or as the case may be, fifteen days."
Hence any delay caused would have to be explained and though 'forthwith' does not mean 'instantaneous', five days would run foul of the requirement. We notice that when the order is passed and the subject is arrested, the detaining authority cannot harbour a presumption that it would be approved. If eventually the order is declined approval by the Government, then the detenu would have been detained without reasonable cause, which would be anathema to the constitutional guarantees on the fundamental rights.
9. The argument of the learned Government Pleader is that the detaining authority had, soon after passing the detention order on 15.04.2018, forwarded the order to the Government on the same day. After the arrest of the detenu on 21.04.2018, a detailed proposal along with all documents relied upon, were forwarded to the Government. It is also submitted that the approval by the Government was made within 12 days stipulated by the Section. Hence there is no infringement of the statutory provisions, is the argument.
10. Perusal of the records would show that the detaining authority had on 15.04.2018, soon after passing the order of detention, addressed the Government informing about the order, and copy of the detention order and grounds for detention were enclosed with the report. Thereafter, on 24.04.2018, the copies of all documents were sent to the Government for favour of approval. According to the Government Pleader, there is substantial compliance of the statutory provision.
11. The learned Government Pleader would also draw a distinction between the facts in Hetchin Haokip's case and submits that the detention in that case was under the National Security Act 1980, and the Hon'ble Supreme Court was referring to violation of Section 3(4) of that Act, which, according to him is not exactly the same as the analogous provision in KAAPA.
12. Section 3(4)of National Security Act reads thus:-


3.(4) When any order is made under this section by an officer mentioned in sub-section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government: Provided that where under section 8 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detentions, this sub-section shall apply subject to the modification, that, for the words "twelve days", the words "fifteen days" shall be substituted.”
13. True, the relevant provision of Section 3(3) of KAPAA may not be identical to the provisions of the National Security Act. But the rigour is by no means lesser, as KAAPA, states that the detaining authority shall forthwith report the fact to the Government and the Director General of Police, Kerala, together with the records which, in his opinion, have a bearing on the matter, would indicate that the supporting records which, in his opinion, have a bearing on the matter should have been sent forthwith. In the instant case, the records would show that the detaining authority had sent the copy of the detention order as well as the grounds alone on the same day. The other records were sent only on the 24th of April, consequent to the arrest of the detenu on the 21st of April. In view of the decision of the Hon'ble Supreme Court in Hetchin Haokip, there is no sufficient compliance of the provisions in this case.
14. The learned Counsel would thereafter argue that the fact regarding the acquittal of the accused in one of the crimes has not been brought to the notice of the Detaining Authority. In support of her argument, the learned Counsel would rely on the decision of the Hon'ble Supreme Court in Dharamdas Shamlal Agarwal v. The Police Commissioner & another, 1989 KHC 863, wherein the fact regarding the acquittal of the detenu in one of the cases was not brought to the notice of the Detaining Authority, and therefore the Hon'ble Supreme Court held as thus:
"12. From the above decisions it emerges that the requisite subjective satisfaction the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influenced his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order. It is clear to our mind that in the case on hand, at the time when the detaining authority passed the detention order this vital fact, namely, the acquittals of the detenu in case Nos. mentioned at serial Nos. 2 and 3 have not been brought to his notice and on the other hand they were withheld and the detaining authority was given to understand that the trial of those cases were pending. The explanation given by the learned counsel for the respondents, as we have already pointed out, cannot be accepted for a moment. The result is that the non placing of the material fact - namely the acquittal of detenu in the above-said two cases resulting in non application of mind of the detaining authority to the said fact has vitiated the requisite subjective satisfaction, rendering the impugned detention order invalid."
15. It is true that, in the instant case also, the fact regarding the acquittal of the accused vide Ext.P2 judgment dated 14.10.2015, in crime 1925/2013 referred to in Ext.P1, has not been discussed by the Detaining Authority in Ext.P3 order of detention. In the above cited decision, the detention was under the provisions of the Prevention of Anti-Social Activities Act, 1985 (Gujarat). The learned Government Pleader brings to our notice the provisions of Section 7(4) of the KAAPA, which statutorily provided that the order of detention shall not be deemed to be invalid merely because one or more of the facts or circumstances cited among the grounds are vague, nonexistent, irrelevant or invalid for any reason whatsoever and such order shall be deemed to have been made by the Government or the Authorised Officer, after having been satisfied about the need for detention with reference to the remaining facts and circumstances, provided that the minimum conditions for being classified as a known goonda or known rowdy are satisfied. In view of this sub-section (4) of Section 7, even if the fact regarding the acquittal has not been discussed by the Detaining Authority in Ext.P3 detention order, that alone would not vitiate the entire order of detention. We are not told of any similar provision in the Prevention of Anti-Social Activities Act, 1985 (Gujarat) under which the aforesaid decision of Dharamdas Shamlal Agarwal (supra) was rendered by the Hon'ble Supreme Court. Hence, the aforesaid decision can be clearly distinguished from its application in the case in hand based on the statutory provision.


16. The learned Counsel for the petitioner would then argue for the proposition that it is incumbent on the Government to consider the representation made by the detenu on 08.05.2018, which is referred to in Ext.P7 reply of the Additional Chief Secretary dated 17.05.2018. The representation has not received real and proper consideration by the Government before approval of the detention Order vide Ext.P5 on 14.06.2018. For this proposition, the learned Counsel relies on the decision in Shruthi v. State of Kerala, 2009 (4) KLT 839, wherein the detention was found to be invalid and unjustified for reason that the representation of the detenu with regard to the facts and circumstances, not having been given real and proper consideration, before approving the order of detention. The Division Bench of this Court has placed reliance on the decision of the Hon'ble Supreme Court in Haradhan Saha v. State of West Bengal, AIR 1971 SC 2154 to arrive at such conclusion.
17. In the instant case, the Government has not considered the fact regarding the acquittal of the accused in one of the major cases. In Ext.P6 representation made by the detenu, it is stated that the fact that the detenu has been acquitted in one of the cases has not been considered. The representation dated 08.05.2018 has also not been referred to in Ext.P5. All the remaining four cases regarding the involvement of the detenu are in small quantity of contraband narcotics, whereas there is involved a large quantity in the case in which he had been acquitted. We agree with the learned Counsel that the said factum could be a mitigating factor in interfering with the detention order. The fact that the crimes pending against the detenu were only of small quantity might have persuaded the government to release the detenu. The detention of the detenu is essential or not ought to have been considered keeping in mind all these factors. We also find that there was unexplained delay in sending the impugned order for approval. The mandate of "forthwith despatch" has not been followed. Hence, we are of the opinion that the detention order is not sustainable, since the representation by the detenu under Article 22(5) of the Constitution and under Section 7(2) of KAPPA Act has not been given real and proper consideration by the Government.


18. After having heard the matter and being convinced that detention order is not sustainable on the ground of the Government having not considered the entire facts in accordance with the decision of another Division Bench of this Court reported in 2009 (4) KLT 893, Shruthi v. State of Kerala, we are of the opinion that the detenu has to be released. Hence, we direct that the detenu-Ashraf, aged 62 years, S/o Pareed, Kalappurackal House, Kanjirakkattu, Perumbavoor, Ernakulam, shall be released forthwith, if he is not wanted in connection with any other crime.
The Registry shall send the operative portion of the judgment to the Superintendent, Central Prison, Kannur, who shall comply with our directions expeditiously.