ABDUL WAHAB Vs. STATE OF KERALA

JUDGEMENT

(1.) We are called upon to decide (by Reference Order dated 01.12.2010 passed by a Division Bench of this Court ) whether the dictum laid down in Safiya Vs. State of Kerala (2009 (1) KLT 7) requires to be reconsidered. The more pointed question raised is whether the detaining authority is to record the subjective satisfaction under Sec. 3 of the Kerala Anti-Social Activities (Prevention)Act, 2007(KAAPA)(hereinafter called the 'Act' in short) solely on the basis of the finding on investigation recorded by the competent authority in Police?. In other words, whether the observations made by the Division Bench in Safiya's case are to be read and understood as to a situation where final report is submitted by the police under Sec. 173 (2) of the Crimial P.C., is it no more open for the detaining authority to consider anything more while passing an order under Sec. 3 (1) of the KAAPA; or is it not necessary for the detaining authority to pass an order with proper application of mind as to whether any circumstance is brought out to pass such an order, necessitating to keep the detenue under preventive detention?.

(2.) Heard Mr. Vipin Narayan, the learned counsel for the petitioner, as well as Shri K.A. Anas, the learned Govt. Pleader appearing for the State/Respondents.

(3.) A brief discussion on the facts is necessary to appreciate the chain of circumstances and the legal position more effectively. The brother of the petitioner, who is the detenue, was classified by the police as a 'known goonda' in terms of Sec. 2(o) of the Act as various cases came to be registered against him, as envisaged under the Act [here, it was under the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001]. Pursuant to the relevant proceedings and report submitted by the third respondent/S.I. of Police before the 4th respondent/Superintendent of Police, a report in terms of Sec. 3 of the Act came to be filed before the second respondent. After considering the same, the second respondent passed Ext.P1 order of detention on 16.09.2010; pursuant to which, the detenue was arrested and taken into judicial custody on 24.09.2010. The order of detention was approved by the Govt.of Kerala under Sec. 3(3) of the Act on 08.10.2010. The said order was sought to be intercepted contending mainly: