The aforesaid facts would clearly indicate that the subjective
satisfaction arrived at by the detaining authority was on the basis of
erroneous data and insufficient materials. The sponsoring authority
committed an error in stating that the detenu suffered the full term of
detention under the second order of detention and this report was
made the basis for considering the question of issuing an order of
detention as per Ext.P1. However, while making the discussion for
arriving at the subjective satisfaction, the detaining authority did not
refer to the second detention order at all and the report submitted by
the sponsoring authority was really ignored. The resultant position is
that even the judgment passed by the High Court in a Writ Petition
was ignored by the sponsoring authority as well as the detaining
authority. There was absolute non-application of mind which vitiates
the order of detention.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
&
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
THURSDAY, THE 1ST DAY OF OCTOBER 2015
WP(Crl.).No. 364 of 2015 (S)
PETITIONER:
SUJITHA, W/O.SURESH,
Vs
STATEOF KERALA,
Citation; 2016 CRLJ(NOC)52 Kerala
Suresh @ Kalpana Suresh @ Vettu Suresh was detained as
per Ext.P1 order (No.CC46/S13/Camp/15 dated 16.5.2015) issued
by the District Magistrate, Thiruvananthapuram under Section 3(1) of
the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter
referred to as the 'KAAPA'). The order of detention was executed on
19.5.2015. The detenu is classified as a 'known rowdy' in Ext.P1
order. The order of detention was confirmed by the Government on
23.7.2015 and the period of detention was fixed as one year.
2. An order of detention dated 15.6.2007 was issued against
the detenu, which was executed on 17.6.2007. The period of
detention was six months. The detenu completed the term of six
months in jail and he was released on 16.12.2007.
3. Alleging that the detenu involved himself again in criminal
activities, a second order of detention dated 11.11.2011 was passed
and it was executed on 23.11.2011. The period of detention was six
months. The present order of detention (Ext.P1) was issued on the
ground that the detenu indulged in criminal activities again and
criminal cases were registered against him. In Ext.P1 order of
detention it is stated that the period of detention as per the second
order of detention dated 11.11.2011 was over on 22.5.2012 and the
detenu suffered the full term covered by the second order of
detention.
4. Ext.P1 order of detention as well as the continued detention
are under challenge in this Writ Petition filed by the wife of the
detenu. Various grounds have been raised in the Writ Petition
challenging the order of detention and the continued detention.
5. The learned counsel for the petitioner submitted that the
second order of detention dated 11.11.2011 was challenged by the
petitioner in W.P.(Crl) No.18 of 2012 and this Court allowed that Writ
Petition by the judgment dated 14.2.2012 on the ground that one of
the documents which was relied upon was not furnished to the
detenu. It is submitted that the detenu was released from jail
pursuant to the judgment in W.P.(Crl) No.18 of 2012 and he did not
suffer the full term of detention under the second order of detention.
In paragraph 6 of the statement of facts in the Writ Petition as well as
in ground (Q), the petitioner has raised the aforesaid contention and
challenged the order of detention. Paragraph 6 and ground (Q) are
extracted below:
"6. The detainee challenged the 2nd detention
order before this Hon'ble court in the Writ Petition
No.18/2012. This Honourable court set aside the 2nd
detention order and set the detainee at free by the
judgment dated 14/2/2012. This is against the fact. This
shows that the sponsoring and detaining authorities are
not aware of setting aside of the 2nd detention order.
These authorities are not up-to-date as to the real state
of affairs at the issuance of the detention order."
"(Q) It is humbly submitted that there is non-
application of mind on the sponsoring, detaining and 1st
respondent in maintaining the detention order."
6. The aforesaid contention raised by the petitioner in the Writ
Petition is not answered in the counter affidavit filed by the first
respondent. In the counter affidavit filed by the second respondent
(District Magistrate, Thiruvananthapuram), it is stated as follows:
"13. The allegation and contention in paragraph 6
and 7 of the writ petition (Crl) is lack of any merits. It was
reported by the sponsoring authority while furnishing the
report for detention stated therein that the 2nd detention
order issued in 2011 was completed the full term of 6
months and released thereafter. In the report it is stated
that the 2nd detention order was confirmed by the
Government vide G.O.(Rt) 409/2012/Home dated
13.02.2012. The order of Hon'ble Court if any had not
been produced before this authority. Hence this authority
was fully convinced that the term of detention was
completed in the 2nd detention and hence the order was
issued invoking the provision in section 13(2)(i) of
KAAPA."
7. The third respondent, the sponsoring authority, did not file
any counter affidavit in the present Writ Petition. Ext.P3 report
submitted by the sponsoring authority to the second respondent
states that the detenu suffered the full term of detention as per the
second order of detention dated 11.11.2011, while, in fact, that order
of detention was interfered with and the detenu was directed to be
released forthwith as per the judgment dated 14.2.2012 in W.P.(Crl)
No.18 of 2012.
8. Thus it is clear that the sponsoring authority was not aware
of the full facts with respect to the second detention as per the order
dated 11.11.2011. Based on the erroneous report submitted by the
sponsoring authority, the detaining authority erroneously took the
view that the detenu suffered the full term of detention under the
second detention order and even thereafter, he indulged in criminal
activities. A perusal of Ext.P1 order of detention shows that though
reference is made to the second order of detention in the second
page of Ext.P1, while discussing the matter at page 3 of Ext.P1, no
reference is made to the second detention order. The discussion at
page 3 of Ext.P1 order reflects the subjective satisfaction arrived at
by the detaining authority and, at that juncture, the detaining authority
ignored the second order of detention dated 11.11.2011 and the
events which took place pursuant to that order. The report of the
sponsoring authority with respect to the second detention order is
also not seen discussed while arriving at the subjective satisfaction by
the detaining authority.
9. The aforesaid facts would clearly indicate that the subjective
satisfaction arrived at by the detaining authority was on the basis of
erroneous data and insufficient materials. The sponsoring authority
committed an error in stating that the detenu suffered the full term of
detention under the second order of detention and this report was
made the basis for considering the question of issuing an order of
detention as per Ext.P1. However, while making the discussion for
arriving at the subjective satisfaction, the detaining authority did not
refer to the second detention order at all and the report submitted by
the sponsoring authority was really ignored. The resultant position is
that even the judgment passed by the High Court in a Writ Petition
was ignored by the sponsoring authority as well as the detaining
authority. There was absolute non-application of mind which vitiates
the order of detention.
10. The aforesaid view taken by us is fortified by the decision
of the Supreme Court in Deepak Bajaj v. State of Maharashtra and
another [AIR 2009 SC 628], wherein the Supreme Court held thus:
"42. In Adishwar Jain vs. Union of India and
another, 2006(11) SCC 339, this Court observed that
where the relevant documents have not been placed
before the Detaining Authority, issuing of the detention
order itself would become vitiated. The same view was
taken in V.C.Mohan vs. Union of India, AIR 2002 SC
1205.
43. In Alka Subhash Gadia's case (supra) this
Court followed its earlier decision in Rajinder Arora's
case (supra) in which case it was held that failure to
place the retraction of the confession before the
Detaining Authority vitiated the detention order. The
same view was taken by this Court in P.Saravanan vs.
State of Tamil Nadu and others, 2001 (10) SCC 212,
Ahmed Nassar vs. State of Tamil Nadu and others, 1999
(8) SCC 473, Sita Ram Somani vs. State of Rajasthan,
AIR 1986 SC 1072, etc.
44. In Union of India & others vs. Manoharlal
Narang, 1987 (2) SCC 241 this Court deprecated the
contention that the Detaining Authority is not required to
collect all materials about any court proceedings etc.
from different Ministries or Departments for the purpose
of issuance of a detention order. The Court observed
that non-consideration of a relevant material will certainly
invalidate the detention order. We respectfully agree with
the above view, and reiterate it.
45. In A.Sowkath Ali vs. Union of India and others,
2000(7) SCC 148, this Court observed that if the
Detaining Authority has relied on a confessional
statement then the retraction of that confession should
also have been placed before the Detaining Authority,
and should have been considered by it, and failure to do
so would invalidate the detention order.
46. In our opinion, failure to place the retractions
and other materials referred to in paragraph 4 of the
petition before the Detaining Authority would certainly
vitiate the impugned detention order."
For the aforesaid reasons, the Writ Petition is allowed and the
order of detention is quashed. The detenu shall be released forthwith
unless his detention is required in respect of any other case. The
Registry will communicate the gist of the operative portion of this
judgment to the Superintendent of Central Prison, Viyyoor forthwith.
K.T.SANKARAN
Judge
RAJA VIJAYARAGHAVAN V.
Judge
Print Page
satisfaction arrived at by the detaining authority was on the basis of
erroneous data and insufficient materials. The sponsoring authority
committed an error in stating that the detenu suffered the full term of
detention under the second order of detention and this report was
made the basis for considering the question of issuing an order of
detention as per Ext.P1. However, while making the discussion for
arriving at the subjective satisfaction, the detaining authority did not
refer to the second detention order at all and the report submitted by
the sponsoring authority was really ignored. The resultant position is
that even the judgment passed by the High Court in a Writ Petition
was ignored by the sponsoring authority as well as the detaining
authority. There was absolute non-application of mind which vitiates
the order of detention.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
&
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
THURSDAY, THE 1ST DAY OF OCTOBER 2015
WP(Crl.).No. 364 of 2015 (S)
PETITIONER:
SUJITHA, W/O.SURESH,
Vs
STATEOF KERALA,
Citation; 2016 CRLJ(NOC)52 Kerala
Suresh @ Kalpana Suresh @ Vettu Suresh was detained as
per Ext.P1 order (No.CC46/S13/Camp/15 dated 16.5.2015) issued
by the District Magistrate, Thiruvananthapuram under Section 3(1) of
the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter
referred to as the 'KAAPA'). The order of detention was executed on
19.5.2015. The detenu is classified as a 'known rowdy' in Ext.P1
order. The order of detention was confirmed by the Government on
23.7.2015 and the period of detention was fixed as one year.
2. An order of detention dated 15.6.2007 was issued against
the detenu, which was executed on 17.6.2007. The period of
detention was six months. The detenu completed the term of six
months in jail and he was released on 16.12.2007.
3. Alleging that the detenu involved himself again in criminal
activities, a second order of detention dated 11.11.2011 was passed
and it was executed on 23.11.2011. The period of detention was six
months. The present order of detention (Ext.P1) was issued on the
ground that the detenu indulged in criminal activities again and
criminal cases were registered against him. In Ext.P1 order of
detention it is stated that the period of detention as per the second
order of detention dated 11.11.2011 was over on 22.5.2012 and the
detenu suffered the full term covered by the second order of
detention.
4. Ext.P1 order of detention as well as the continued detention
are under challenge in this Writ Petition filed by the wife of the
detenu. Various grounds have been raised in the Writ Petition
challenging the order of detention and the continued detention.
5. The learned counsel for the petitioner submitted that the
second order of detention dated 11.11.2011 was challenged by the
petitioner in W.P.(Crl) No.18 of 2012 and this Court allowed that Writ
Petition by the judgment dated 14.2.2012 on the ground that one of
the documents which was relied upon was not furnished to the
detenu. It is submitted that the detenu was released from jail
pursuant to the judgment in W.P.(Crl) No.18 of 2012 and he did not
suffer the full term of detention under the second order of detention.
In paragraph 6 of the statement of facts in the Writ Petition as well as
in ground (Q), the petitioner has raised the aforesaid contention and
challenged the order of detention. Paragraph 6 and ground (Q) are
extracted below:
"6. The detainee challenged the 2nd detention
order before this Hon'ble court in the Writ Petition
No.18/2012. This Honourable court set aside the 2nd
detention order and set the detainee at free by the
judgment dated 14/2/2012. This is against the fact. This
shows that the sponsoring and detaining authorities are
not aware of setting aside of the 2nd detention order.
These authorities are not up-to-date as to the real state
of affairs at the issuance of the detention order."
"(Q) It is humbly submitted that there is non-
application of mind on the sponsoring, detaining and 1st
respondent in maintaining the detention order."
6. The aforesaid contention raised by the petitioner in the Writ
Petition is not answered in the counter affidavit filed by the first
respondent. In the counter affidavit filed by the second respondent
(District Magistrate, Thiruvananthapuram), it is stated as follows:
"13. The allegation and contention in paragraph 6
and 7 of the writ petition (Crl) is lack of any merits. It was
reported by the sponsoring authority while furnishing the
report for detention stated therein that the 2nd detention
order issued in 2011 was completed the full term of 6
months and released thereafter. In the report it is stated
that the 2nd detention order was confirmed by the
Government vide G.O.(Rt) 409/2012/Home dated
13.02.2012. The order of Hon'ble Court if any had not
been produced before this authority. Hence this authority
was fully convinced that the term of detention was
completed in the 2nd detention and hence the order was
issued invoking the provision in section 13(2)(i) of
KAAPA."
7. The third respondent, the sponsoring authority, did not file
any counter affidavit in the present Writ Petition. Ext.P3 report
submitted by the sponsoring authority to the second respondent
states that the detenu suffered the full term of detention as per the
second order of detention dated 11.11.2011, while, in fact, that order
of detention was interfered with and the detenu was directed to be
released forthwith as per the judgment dated 14.2.2012 in W.P.(Crl)
No.18 of 2012.
8. Thus it is clear that the sponsoring authority was not aware
of the full facts with respect to the second detention as per the order
dated 11.11.2011. Based on the erroneous report submitted by the
sponsoring authority, the detaining authority erroneously took the
view that the detenu suffered the full term of detention under the
second detention order and even thereafter, he indulged in criminal
activities. A perusal of Ext.P1 order of detention shows that though
reference is made to the second order of detention in the second
page of Ext.P1, while discussing the matter at page 3 of Ext.P1, no
reference is made to the second detention order. The discussion at
page 3 of Ext.P1 order reflects the subjective satisfaction arrived at
by the detaining authority and, at that juncture, the detaining authority
ignored the second order of detention dated 11.11.2011 and the
events which took place pursuant to that order. The report of the
sponsoring authority with respect to the second detention order is
also not seen discussed while arriving at the subjective satisfaction by
the detaining authority.
9. The aforesaid facts would clearly indicate that the subjective
satisfaction arrived at by the detaining authority was on the basis of
erroneous data and insufficient materials. The sponsoring authority
committed an error in stating that the detenu suffered the full term of
detention under the second order of detention and this report was
made the basis for considering the question of issuing an order of
detention as per Ext.P1. However, while making the discussion for
arriving at the subjective satisfaction, the detaining authority did not
refer to the second detention order at all and the report submitted by
the sponsoring authority was really ignored. The resultant position is
that even the judgment passed by the High Court in a Writ Petition
was ignored by the sponsoring authority as well as the detaining
authority. There was absolute non-application of mind which vitiates
the order of detention.
10. The aforesaid view taken by us is fortified by the decision
of the Supreme Court in Deepak Bajaj v. State of Maharashtra and
another [AIR 2009 SC 628], wherein the Supreme Court held thus:
"42. In Adishwar Jain vs. Union of India and
another, 2006(11) SCC 339, this Court observed that
where the relevant documents have not been placed
before the Detaining Authority, issuing of the detention
order itself would become vitiated. The same view was
taken in V.C.Mohan vs. Union of India, AIR 2002 SC
1205.
43. In Alka Subhash Gadia's case (supra) this
Court followed its earlier decision in Rajinder Arora's
case (supra) in which case it was held that failure to
place the retraction of the confession before the
Detaining Authority vitiated the detention order. The
same view was taken by this Court in P.Saravanan vs.
State of Tamil Nadu and others, 2001 (10) SCC 212,
Ahmed Nassar vs. State of Tamil Nadu and others, 1999
(8) SCC 473, Sita Ram Somani vs. State of Rajasthan,
AIR 1986 SC 1072, etc.
44. In Union of India & others vs. Manoharlal
Narang, 1987 (2) SCC 241 this Court deprecated the
contention that the Detaining Authority is not required to
collect all materials about any court proceedings etc.
from different Ministries or Departments for the purpose
of issuance of a detention order. The Court observed
that non-consideration of a relevant material will certainly
invalidate the detention order. We respectfully agree with
the above view, and reiterate it.
45. In A.Sowkath Ali vs. Union of India and others,
2000(7) SCC 148, this Court observed that if the
Detaining Authority has relied on a confessional
statement then the retraction of that confession should
also have been placed before the Detaining Authority,
and should have been considered by it, and failure to do
so would invalidate the detention order.
46. In our opinion, failure to place the retractions
and other materials referred to in paragraph 4 of the
petition before the Detaining Authority would certainly
vitiate the impugned detention order."
For the aforesaid reasons, the Writ Petition is allowed and the
order of detention is quashed. The detenu shall be released forthwith
unless his detention is required in respect of any other case. The
Registry will communicate the gist of the operative portion of this
judgment to the Superintendent of Central Prison, Viyyoor forthwith.
K.T.SANKARAN
Judge
RAJA VIJAYARAGHAVAN V.
Judge
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