VASANTHI Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS writ petition is filed by the wife of a detenu, who has been detained under the Kerala Anti-Social Activities (Prevention) Ordinance, 2007 (Ordinance No. 44/2007) (hereinafter referred to as "the Ordinance"), praying to issue a writ of habeas corpus for the production of the detenu before this Court and order his release.

(2.) THE brief facts of the case are the following: The petitioner is the wife of the detenu Mr. Ravi @ Ravidas, aged 35 years, S/o. Kunju, residing at Vadakkepura Veedu, Varode, Kottayi, Palakkad. The detenu was taken into custody by the 4th respondent on 5. 9. 2007 and on 7. 9. 2007 he has been served with Ext. P1 order dated 7. 9. 2007, passed by the District Collector, Palakkad, detaining him under Sections 3 (1) and (2) of the Ordinance. On the strength of the detention order, he is being detained in the Central Prison, Viyyur. Along with Ext. P1, he has been served with Ext. P2 grounds of detention also. The petitioner submits, the detenu was served with only photo copies of Exts. P1 and P2 and not authenticated copies of them. He does not know English and therefore, he was unable to read or understand Ext. P1. The detention order says that final reports have been filed against him before the competent criminal court in Crime Nos. 44/02, 111/03 and 123/07. The offences alleged against him in the first crime are those under Sections 452, 427 and 398 of I. P. C and also under Section 4 read with 25 (1) (b) of the Arms Act. The allegation was that he along with others formed an unlawful assembly with deadly weapons like sword, knife, wooden stick etc. , trespassed into the hotel of the complainant, created an atmosphere of terror and destroyed various articles of the hotel. They also looted Rs. 4500/- from there. On the information lodged by Mr. Appukuttan, who was running the hotel, the crime was registered. The second incident relates to the kidnapping of one Mr. Babu Joseph in a motorcycle with the intention to kill him. He was attacked while he was taken on the motorcycle and later pushed down from it, causing injuries to him. The offences alleged against the detenu in the said case were under Sections 143, 147, 364, 307 and 149 of I. P. C. The 3rd incident relates to the kidnapping of Mr. Nazir, for his failure to pay a loan he received from one of his relatives. He was taken by force in a red coloured Maruthi car to the courtyard of the detenu at Kottayi. He was attacked by the detenu with bamboo sticks and the same caused injuries to him. The said case involves the offences under Sections 365, 341 and 308 read with Section 34 of I. P. C. The District Magistrate on being satisfied that if the detenu remains at large, he would indulge in anti-social activities involving assault and criminal conspiracy against public, which would create a feeling of insecurity among them, passed orders detaining him, based on the report received from the police. The grounds of detention detailed in Ext. P2 were in Malayalam and the details of the above three cases were given in the grounds of detention.

(3.) THE petitioner challenges the detention on the following grounds: she alleges that copies of the charge-sheets in the above three cases and connected cases were not supplied to the detenu. The Ordinance authorizes the District Magistrate to act on the strength of the report of a Police Officer not below the rank of District Superintendent of Police. But, Ext. P1 order would show that the 2nd respondent District Collector acted on the report of the Sub Inspector of Police, the 4th respondent. The detenu was detained on the basis of the finding that he is a "known rowdy". At the time of detention, he was served with a copy of the F. I. R. No. 148/2007 dated 5. 9. 2007, based on which, action was initiated against him by the S. I of Police for detention under the Ordinance. Ext. P3 is the copy of the said F. I. R. While passing the detention order, the detaining authority did not consider Ext. P4 order of this Court in Bail Application No. 2506/2007 dated 8. 5. 2007, granting him anticipatory bail in Crime No. 123/07, which is the last of the three cases, which were relied on to detain him. The said bail order contained stringent conditions, which would ensure that while on bail, he will not repeat the commission of any offence. When the detention order was passed, either the police did not place the said order before the detaining authority or the said authority overlooked the same. If the detaining authority had applied its mind to Ext. P4, the detention order would not have been passed. The petitioner further submits, the Government were bound to confirm the detention order within ten days. The same was not done. The final report under Section 173 of Cr. P. C in crime No. 123/07 was not filed before the concerned criminal court before 7. 9. 2007. Therefore, the detenu cannot be treated as a "known rowdy" in terms of the Ordinance. The Government violated the various procedural safeguards provided under the Ordinance and also under Article 22 of the Constitution of India. Though the detenu submitted a representation before the Government through the Superintendent of Central Prison, Viyyur, the same was not considered by the Government without delay. Therefore, the detention order is illegal. Based on those and other procedural irregularities in passing the detention order and taking consequential action, the petitioner prayed for release of the detenu.