NISHA NEEL Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONER seeks a writ of habeas corpus to release her husband who stands detained vide Ext.P1 order of detention passed under Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as the Act).

(2.) WE heard Shri K. Ramakumar, learned senior counsel for the petitioner and the learned senior Government Pleader appearing on behalf of the respondents.

(3.) PER contra, the learned senior Government Pleader would submit as follows: There is nexus and link between the activities and the order of detention. While it is true that the offence in Crime No.1727/09 was committed allegedly on 19.9.2009 and the order of detention was passed on 29.1.2011, it is pointed out that between 2007 and 2010 he was involved in six criminal cases and the last crime he committed was on 18.08.2010 which was committed while detention proceedings were under process. It is also pointed out in the Counter Affidavit that the Superintendent of Police had submitted a Report dated 6.7.2010 against the detenu under Section 3 for initiating detention proceedings against him and the said Report was returned since the District Collector who is authorised to act under Section 3(1) of the Act, had left the State for attending two months' training at Mussorie and as per the direction of the High Court in W.P.(Crl).No.91/09, the Additional District Magistrate who was temporarily in charge of the District Magistrate could not exercise the power conferred on the District Magistrate under the Act. Thereafter, it is stated that a consolidated Report dated 10.10.2010 was received from the Superintendent of Police. Thereafter, some clarifications were sought for, which were cleared by the submission of the records as per the report dated 8.11.2010. Learned senior Government Pleader would also contend that the detenu was involved in two further crimes in 2010, the dates of the crimes being 5.5.2010 and 18.8.2010. Therefore, he would submit that this is a clear case where the detention could be said to be warranted. Next, he would contend that it is settled law that the District Magistrate is not bound by the Report of the Superintendent of Police and the District Magistrate can take the view on the materials supplied that the detenu is a known goonda and not a known rowdy or vice versa. He would submit that the District Magistrate after applying her mind, came to the conclusion that having regard to the provisions of law, Crime Nos.354/07 and 355/07 cannot be reckoned for the purpose of treating him as a known rowdy. Again, Crime Nos.336/10 and 641/10 could also not be taken into consideration for treating the detenu as a rowdy. It is pointed out thereafter that the detenu was reckoned as a known goonda on the basis of his involvement in Crime No.1727/09 involving Sections 323, 326, 302 and 34 of IPC which is an offence under Section 2(t) of the Act along with his involvement in the crime under the NDPS Act. He would elaborate and contend that under the definition of the word "known goonda", having regard to the Explanation, an instance of rowdy can also be reckoned along with the act falling within the definition of the word "known goonda" for treating him as a known goonda and this is all that has happened and no exception could be taken to it. He would further contend that while it is true that the word "stock" is used in Section 2(i) of the Act defining the word "drug offender", it is pertinent to note that Section 2(i) contemplates stocking among other activities which involve contravention of the provisions of the NDPS Act or any other law for the time being in force. He would point out that "stocking" is not an expression which is actually employed in the NDPS Act, in that, "stocking" is not made a contravention. He would point out that possession, however, is referred to in Section 20(2)(b) under which the detenu stands charged and, therefore, the word "stocking" is the same as possession.