DAINABI K Vs. DISTRICT MAGISTRATE

JUDGEMENT

(1.) How is the expression "excluding those offences punishable with less than one year of imprisonment" in Section 2(t)(ii) of the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred to as 'the KAAPA') to be understood

(2.) To the vital and relevant facts first. The Petitioner is the mother of Shamsudheen, S/o Khader (hereinafter referred to as 'the alleged detenu'), who is preventively detained under Ext.P-1 order dated 18-2-2010 passed by the 1st Respondent--District Magistrate, Kasaragod. In execution of Ext.P-1 order of detention, the detenu has been arrested and he continues in custody from 19-2-2010. Approval under Section 3(3) of the KAAPA and confirmation under Section 10(4) of the KAAPA have been granted vide orders dated 3-3-2010 and 22-4-2010. The detenu has been classified as a 'known rowdy' under Section 2(p) of the KAAPA. There are 9 criminal cases to his credit which are enumerated in Ext.P-1 order of detention. The offences alleged against the detenu in these cases include offences punishable under Sections 143, 147, 148, 447, 323, 324, 302, 332, 341 and 153A read with Section 149 I.P.C. In one of these 9 cases, the allegations are raised under Sections 326 and 435 I.P.C. also. The detenu continues in custody from 19-2-2010. The Petitioner herein, the mother of the detenu, has filed this application for issue of a writ of habeas corpus to set aside the order of detention Ext.P-1 and to release the detenu from custody. Various contentions have been raised in this Writ Petition. Arguments have been heard. The learned Counsel for the Petitioner Sri Sunny Mathew raises a very interesting question and contends that all the other 8 cases must be excluded from consideration while deciding whether the detenu is a known rowdy. In short, the contention of the learned Counsel for the Petitioner is that in all the other 8 cases, the detenu faces indictment only for offences which can possibly be punished actually with a sentence of fine only or imprisonment for a period of less than one year. To be more specific, the contention is that in none of these 8 cases, is there an allegation that the detenu has committed an offence with imprisonment for a term of 5 years or more as insisted by Section 2(t)(i) of the KAAPA. There is also no allegation that the detenu is guilty of any offence which is punishable mandatorily with one year of imprisonment. In all these 8 cases, it is possible that, after trial, the criminal court may, in its discretion, impose a sentence of fine only or a sentence of imprisonment for a term less than one year. The Counsel hence contends that such offences cannot fall within the sweep of the definition "rowdy" in Section 2(t) of the KAAPA. If this contention were accepted by this Court, needless to say, there will be only one case, i.e., Crime No. 283 of 2009 registered for offences punishable, inter alia, under Sections 326 and 435 I.P.C., which can fall within the sweep of Section 2(t). One such case by itself cannot [at least 3 such cases are necessary] bring the offender within the sweep of the expression 'known rowdy' in Section 2(p) of the KAAPA.

(3.) The contention did appear to us to be interesting. Detailed arguments were advanced by the learned Counsel for the Petitioner Sri Sunny Mathew and the learned Director General of Prosecutions Sri K.K. Ravindranath, As we found that an identical contention has been raised by Senior Counsel Sri K. Ramakumar in Anr. matter, we requested Sri K. Ramakumar also to advance arguments on this point alone to assist us. We also requested Sri S. Rajeev, Counsel, to assist us as amicus curiae. All these Counsel have advanced detailed arguments.