Thottathil B.Radhakrishnan, J. 1. Ext.P1 order of preventive detention under the Kerala Anti-social Activities (Prevention) Act, 2007, “KAAPA”, for short, is under challenge. We have heard the learned counsel for the petitioner and the learned public prosecutor for the respondents.
2. Learned counsel for the petitioner argued that out of the six cases considered by the detaining authority in the detention order, only five were actually counted and considered, and according to him, the sixth case, which is the last incident, could not have been considered at all. This he says to show that there was no live link, which could be established if the last prejudicial activity attributed to the detenu could not be sustained, since the other activities were beyond a period of two years from the attribute made in the sixth case. The argument advanced is that the first information statement in the sixth case, which is crime No.367 of 2014 of Valiyathura Police Station, read along with the scene mahazar and other materials leading to the final report in that case are wholly insufficient to count it as a case because those materials are not sufficient to even disclose any offence punishable in law. It is further argued that the detaining authority, going by the contents of Ext.P1 order, is shown to have considered different materials, including the first information reports, statements of witnesses, investigation reports, final reports, rowdy history sheet, terms of bail, etc., however that, in spite of such statements in the detention order, all those materials have not been given to the detenu along with the detention order and that such failure of procedure infracts Article 22 of the Constitution of India and has prejudiced the interest of the detenu.
3. We have perused the case papers of crime No.367 of 2014. Questions as to whether a crime is disclosed, or whether that could, ultimately, lead to conviction or acquittal, or may even lead to discharge, are not matters germane for consideration in this jurisdiction, where, primarily, the questions would be those referable to liberty issues and whether the procedure that has been adopted and followed, is in accordance with Article 22 of the Constitution of India and the statutory provisions as are contained in KAAPA. We do not, therefore, accept the plea of the petitioner that the sixth among the cases could not have been considered on that ground.
4. The detention order shows that on 17.04.2013, the petitioner was brought under the cover of an order under Section 107 of the Code of Criminal Procedure, “Code”, for short, and he had executed a bond. Assuming that the said bond was for a period of one year, which is the maximum permissible period under Section 107 of the Code, and the sixth, i.e., the last prejudicial activity, is on 21.03.2014, that is to say, before the end of one year, the fact of the matter remains that the detention order was issued only on 27.06.2014 after the period for which he could have been put under the cover of the bond executed on 17.04.2013 in satisfaction of the direction under Section 107 of the Code. No requirement was shown at any point of time thereafter to cover the person under a further order under Section 107 of the Code though the detention order is issued also on the premise that during the period of the bond, he was found indulging in illegal activity, which led to the registration of crime No.367 of 2014 of the Valiyathura Police Station.
5. Be that as it may, the predominant issue that surges in this case is that the detaining authority has, in Ext.P1 detention order, expressly stated of having made reference to the various materials and documents, including the first information reports, statements of witnesses, investigation reports, final reports, rowdy history sheet, terms of bond, etc. It had also specifically considered the fact that the detenu was earlier covered by an order under Section 107 of the Code and during the currency of the bond in satisfaction of that order, he had committed the acts which led to the registration of Crime No.367 of 2014 of the Valiyathura Police Station. The fact of the matter remains that many of such materials and documents relied on by the detaining authority in regard to those cases were not served on the detenu. The learned public prosecutor argued that it is not necessary to do so, if the final report and the first information report are served, because non-service of the copies of the other materials cannot be treated as prejudicial to the interest of the detenu. That may be true in cases where the detaining authority relied on the first information report and the final report after investigation and referred to the materials otherwise on record in those cases only to satisfy itself as to the correctness of the final report. However, when the detention order is issued making specific reliance on different materials in those criminal cases, other than FIR and final report, it goes without saying that the provisions of Article 22 of the Constitution of India and the requirement of service of materials in terms of the statutory provisions in KAAPA would stand violated, if copies of such materials are also not served on the detenu. On the facts and in the peculiar facts and circumstances of the case in hand, we are satisfied that the impugned detention order is invalid on that ground.
6. We have given our anxious consideration to the question as to whether we should impose any condition of surveillance or reporting to the police authorities during the remaining period covered by the impugned detention order. The detention order was issued on 27.06.2014 and it was executed on 30.06.2014. Having regard to the totality of the materials on record, we are not persuaded to impose any condition, at this distance of time on the detenu.
In the result, this writ petition is allowed quashing Ext.P1 detention order. The detenu covered by that order will be released, if his continued presence in custody is not required in connection with any other detention order or any other case against him. He shall be set at liberty forthwith.
The Registry is directed to send the gist of the judgment forthwith to the prison concerned, where the detenu is undergoing incarceration.
(THOTTATHIL B.RADHAKRISHNAN, JUDGE) (BABU MATHEW P. JOSEPH, JUDGE) jg