PRASANNAKUMARI Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is the mother of the detenu detained under the provisions of the Kerala Anti - Social Activities (Prevention) Act, 2007 (herein after referred to as 'the Act'). Petitioner's son has been detained vide Ext. P1 order passed by the District Magistrate, Thiruvananthapuram dated 13/08/2011. Ext. P1 order was preceded by Report of the Superintendent of Police dated 28/07/2011. There are six crimes referred to as the basis for the order of detention. They are as follows:

(2.) We heard the learned counsel for the petitioner and learned Additional Director General of Prosecutions. Learned counsel for the petitioner would submit that there is delay in executing the order of detention, that there were S.107 CrPC proceedings initiated and all that is stated in the order is that security proceedings under S.107 is under process and no notice or bond has been executed till date. In other words, his contention is that S.107 proceedings were sufficient to arrest the activities of the detenu. The last point which the learned counsel for the petitioner would urge is as follows: There is clear non - application of mind by the Magistrate. In Crime No. 220/2011 the allegation against the detenu was that he and his associate drove the car into a procession conducted in connection with the festival of Siva Temple, Paruthipally and created a horrifying situation in procession by intimidating the people pointing swords on 08/03/2011 at 8.30 PM. It is stated further that after completing investigation the case was charge - sheeted before JFCM Kattakada. He would contend that when the Superintendent of Police submitted Report it is stated that the case is under investigation. It is thereafter that Ext. P1 order is passed on 13/08/2011. By the time the Magistrate would state that the case was charge - sheeted. He would point out that there is no date for the charge - sheet. More importantly, he would contend that the charge - sheet will clearly show that the Investigating Officer has found that no offence is made out under the Arms Act. Yet, the District Magistrate after referring to the charge - sheet still proceeds on the basis that the original Report of the Superintendent of Police continues to hold good, that is to say, when the time the Report was given the case was booked also under the Arms Act, but by the time investigation is completed it was revealed that no offence was alleged against the detenu under the Arms Act as it was not made out. Yet, the Magistrate even with the charge - sheet revealing absence of any charge against the detenu under the Arms Act still he proceeds as there is a case made out under the Arms Act against the detenu. Learned counsel for the petitioner would submit that this is a clear case of non - application of mind to the material before the Magistrate and which is relied upon by him and a copy of which was served on the detenu. He would therefore submit that this will suffice to vitiate the order for transparent non - application of mind.

(3.) Per contra, though learned Additional Director General of Prosecutions would not dispute the fact that the charge - sheet as laid in Crime No. 220/2011 does not make out a case under the Arms Act, however, he sought shelter under S.7(4) of the Act and he would submit that even assuming that the said case fails there were other three cases with the aid of which the detenu could still be detained as a known rowdy. To the same, the learned counsel for the petitioner would contend that S.7(4) cannot be invoked to the facts of this case. It is not as if Crime No. 220/2011 is found to be non - existent. The question really is one relating to non - application of mind to the material before the Magistrate. He would point out that application of mind by detaining authority is sine qua non for a valid order of detention, the minimum that could be expected of the detaining authority.