Kerala High Court
Aparna P.M vs The State Of Kerala on 28 July, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
MONDAY, THE 28 DAY OF JULY 2025 / 6TH SRAVANA, 1947
WP(CRL.) NO. 640 OF 2025
PETITIONERS:
APARNA P.M, AGED 24 YEARS
W/O AMEER, THENNAMBARA HOUSE, KADANGODU P.O, THRISSUR
DISTRICT, PIN - 680584
BY ADVS.
SHRI.K.K.SUBEESH
SRI.ROY THOMAS (MUVATTUPUZHA)
SMT.SRADHA MOHAN
SHRI.R.VINU RAJ
RESPONDENTS:
1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY,
HOME DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE
COLLECTORATE, THRISSUR, PIN - 680003
3 THE CHAIRMAN, KAAPA ADVISORY BOARD, PADAM ROAD, VIVEKANANDA
NAGAR, ELAMAKKARA, ERNAKULAM, PIN - 682026
4 THE DISTRICT POLICE CHIEF
THE OFFICE OF THE COMMISSIONER OF POLICE, PATTALAM ROAD,
IN FRONT OF TOWN EAST POLICE STATION, SAKTHAN THAMPURAN
NAGAR, VELIYANNUR, THRISSUR, KERALA, PIN - 680001
BY ADVS.
PUBLIC PROSECUTOR:SRI ANAS K A
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
17.07.2025, THE COURT ON 28.07.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
K. V. Jayakumar, J.
The petitioner, Aparna P. M., has approached this Court claiming the following reliefs:
(i) Issue a writ of mandamus or other appropriate writ or order calling for records leading to the issuance of Ext. P1 detention order and quash the same as illegal and contradictory to Kerala Anti-Social Activities (Prevention) Act, 2007
(ii) Issue a writ mandamus or direction or any other appropriate writ declaring that the detention of petitioner is illegal and order the respondents to release him immediately.
(iii) Issue a writ of habeas corpus or such other writ, order or direction, directing the 1st, 4th, 5th, 6th respondents to produce the body and person of Ameer, who is unlawfully detained and held in illegal custody by respondents, and release the detainee to the petitioner within a time bound manner.
2. The petitioner is the wife of Ameer ['detenu' for the sake of brevity] who has been detained pursuant to the order passed by the 2nd respondent, the District Collector, Thrissur, dated 07.02.2025 under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act ['KAA(P) Act' for the sake of W.P(Crl) No. 640/2025 3 2025:KER:55090 brevity]. The detenu has been classified as 'Known Rowdy' under Section 2p(iii) of the KAA(P) Act, on the basis of his involvement in seven cases. Out of the seven cases, two cases are under investigation, and the remaining five cases are at the trial stage. The details of the cases are as follows:
Sl. Crime No. Police Station Crime Date Offences involved under Present No. various sections Status of the case 1 703/2020 Erumapetty 08.11.2020 341, 323, 324, 506, 308 r/w Pending 34 IPC trial
2 49/2021 Erumapetty 11.02.2021 447, 427, 294(b), 506(i) r/w Pending 34 IPC trial 3 1155/2021 Erumapetty 06.11.2021 341, 323, 427, 294(b) IPC Pending trial 4 195/2022 Erumapetty 27.03.2022 143, 147, 148, 341, 323, 324, Pending 326, 308, 506(i) r/w 149 IPC trial 5 437/2022 Kunnamkulam 27.03.2022 143, 147, 148, 341, 323, 324, Pending 308, 506 r/w 149 IPC and 3 r/w trial 4 of Kerala Healthcare Service Persons and Healthcare Service Institutions (Prevention of Violence and Damage to Property) Act, 2012 6 583/2024 Erumapetty 26.07.2024 329(3) and 351(2) BNS Under Investigat ion 7 1297/2024 Wadakancherry 14.11.2024 189(2), 191(2), 191(3), Under 126(2), 137(2), 115(2), Investigat 118(1), 351(2), 310(2) r/w ion 190 BNS W.P(Crl) No. 640/2025 4 2025:KER:55090 3. The records would reveal that the detenu has been involved in five cases of Erumapetty Police Station and Kunnamkulam Police Station during the period 2020-2022. All those cases are now pending trial. Thereafter, the detenu got involved in two crimes in 2024. The last prejudicial act against the detenu was Crime No.1297/2024 of Vadakkancherry Police Station, registered under Sections 189(2), 191(2), 191(3), 126(2), 137(2), 115(2), 118(1), 351(2) and 310(2) r/w 190 of the Bharatiya Nyaya Sanhita (BNS). The alleged incident occurred on 14.11.2024, and the detenu was arrested on 20.11.2024. 4. The learned counsel for the petitioner submitted that Ext.P1, detention order, is illegal and violative of statutory provisions and procedure established by law. Ext.P1 order is vitiated by non-application of mind. The learned counsel further submitted that the last prejudicial act against the detenu occurred on 04.11.2024. However, the proposal of the sponsoring authority (4th respondent) was on 14.01.2025, and the detention order was ultimately passed on 07.02.2025. Thus, there is a delay of two months and 23 days between the last prejudicial act and the issuance of the detention order, and the live link between the last prejudicial act and the detention order has snapped. It is further argued that the offences in which the detenu is involved are private and personal disputes, which do not fall within the ambit of "public order", but W.P(Crl) No. 640/2025 5 2025:KER:55090 merely those issues are only law and order issues, and would no way affect the public at large or disturb the peace and tranquility of society, as a whole. 5. The learned counsel for the petitioner submitted that preventive detention cannot be used to penalize the detenu. Such a step can be invoked with due care, caution, and circumspection. The impugned order is passed without proper application of mind and in a mechanical manner. It is further submitted that preventive detention could be resorted to only when the remedies provided under the ordinary law are insufficient. 6. The learned Public Prosecutor vehemently opposed the contentions raised by the counsel for the petitioner and submitted that the delay of more than two months was occasioned by the time required for the collection, scrutiny, and evaluation of the relevant materials, and for the detaining authority to arrive at its subjective satisfaction. Moreover, the learned Public Prosecutor submits that the offences in which the detenu is involved are prejudicial to the public order. Ext.P1 order is passed with due application of mind and no interference from this Court is warranted.
7. We have carefully considered the submissions made by the learned counsel for the petitioner and the learned Public Prosecutor.
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8. The first submission of the learned counsel for the petitioner is that
the time gap between the last prejudicial act and the passing of the detention order is two months and 23 days, which has broken the live link and the rational nexus. The explanation offered by the learned Public Prosecutor is that it is the time taken for the collection, verification, and analysis of the details.
9. In T.A.Abdul Rahman v. State of Kerala1, the Apex Court observed as under:
"10. The conspectus of the above decisions can be summarised thus: The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable 1 (1989)4 SCC 741 W.P(Crl) No. 640/2025 7 2025:KER:55090 explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the causal connection has been broken in the circumstances of each case."
10. It is a settled principle of law that no hard and fast rule can be laid down for the consideration of delay. In some cases, the delay is unavoidable. Considering the facts and circumstances of this case, we are of the view that the delay occasioned in passing Ext.P1 detention order appears to be reasonable, plausible, and properly explained. Therefore, we are not persuaded by the said argument.
11. The next contention of the learned counsel for the petitioner is that the offences in which the detenu is involved are private and would not affect society as a whole. However, on perusal of the records, it is evident that the detenu has been involved in serious and grave offences, such as attempt to murder, trespass, and robbery, which poses an imminent threat to the life, peace, and tranquility of the public.
12. In the decision in Nenavath Bujji v. State of Telangana2, the Apex Court held as under:
2
2024 SCC OnLine SC 367 W.P(Crl) No. 640/2025 8 2025:KER:55090 "32. The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression 'law and order' is wider in scope inasmuch as contravention of law always affects order, 'Public order' has a narrower ambit, and could be affected by only such contravention, which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of 'law and order' and 'public order' is one of degree and extent of the reach, of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise problem of law and order only. In other words, the true distinction between the areas of law and order and public order lies not merely in the nature or quality of the act, but in the degree and extent of its reach upon society. Acts similar in nature, but committed in different contexts and circumstances, might cause different reactions. In one case it might affect specific individuals only, and therefore touches the problem of law and order only, while in another it might affect public order. The act by itself, therefore, is not determinant of its own gravity. In its quality it may not differ from other similar acts, but in its potentiality, that is, in its impact on society, it may be very different. (See: Union of India v. Amrit Lal Manchanda, 2004 (3) SCC 75.) 22. In the aforesaid context, we may refer to a decision of this Court in Pushkar Mukherjee v. State of West Bengal reported in 1969 (1) SCC 10:
"13. ... Does the expression "public order" take in every kind of infraction of order or only some categories thereof. It is manifest that every act of assault or injury to specific persons does not lead to public disorder. When two people quarrel and fight and assault each other inside a house or in a street, it may be said that there is disorder but not public disorder. Such cases are dealt with under W.P(Crl) No. 640/2025 9 2025:KER:55090 the powers vested in the executive authorities under the provisions of ordinary criminal law but the culprits cannot be detained on the ground that they were disturbing public order. The contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at large. In this connection we must draw a line of demarcation between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act..." (Emphasis supplied) 13. The Apex Court held that the true distinction between the areas of "public order" and "law and order" lies not in the nature or quality of the act, but in the degree and extent of its reach upon society. 14. The next contention advanced by the learned counsel for the petitioner is that Ext.P1, detention order was passed without due application of mind. He has pointed out that the last prejudicial act was on 14.11.2024. The detenu was arrested on 20.11.2024. Thereafter, the detenu was released on 03.02.2025. A copy of the said order is produced by the learned counsel for the petitioner. Ext.P1 order has been passed without considering the fact that the detenu had already been released on bail. In support of the contention of non W.P(Crl) No. 640/2025 10 2025:KER:55090 application of mind and lack of subjective and objective satisfaction of the detaining authority, the detenu has placed reliance on the decision reported in Philip v. State of Kerala3, wherein this Court held that an order of detention passed without considering or unaware of the granting of bail to the detenue is not legally sustainable. Paragraphs 14 and 15 of Philip's case (supra) read thus:
"14. It need not be over emphasized in the facts and circumstances of this case that Ext. P15 is a very vital document and the same must have been considered when the requisite application of mind is made by the detaining authority under S.3 of the KAAPA. The learned Additional Director General of Prosecutions relies on the decision in K. Varadharaj v. State of T.N., 2002 KHC 1729 [2002 (6) SCC 735 : 2002 SCC (Cri) 1514 : AIR 2002 SC 2953] to contend that the significance of the document in the facts of each case will have to be considered in detail. We have no hesitation to take the view that in the facts and circumstances of this case, the bail granted under Ext. P15 subject to conditions within a period of about three months prior to the date of Ext. P1 order, is a vital document to which mind of the detaining authority must have been applied.
15. The order of detention Ext. P1 must, in these circumstances, be held to be vitiated for the following reasons:
a) Sponsoring authority was either unaware of Ext. P15 or had 3 2009 KHC 738 W.P(Crl) No. 640/2025 11 2025:KER:55090 suppressed the same from the detaining authority.
b) The detaining authority did not know and did not apply his mind to Ext. P15.
c) Consequently, the detaining authority did not at all consider whether, in spite of the conditions imposed under Ext. P15, detention of the detenu was necessary.
d) Not only that the detaining authority did not know of Ext.
P15 but was under the impression that the detenu was absconding and that incorrect fact was also reckoned as a ground for detention."
15. A perusal of Ext. P1 order reveals that the detaining authority failed to consider a crucial and undisputed fact-- that the detenu had already been released on bail in the last prejudicial act. The order erroneously records that the detenu is in judicial custody, thereby indicating a clear case of non-application of mind. It was incumbent upon the detaining authority to duly take note of the fact that the detenu had been granted bail by the jurisdictional court subject to certain conditions, and to assess whether such conditions were adequate to prevent the detenu from engaging in any further prejudicial activities. The failure to consider this vital aspect unmistakably would show that the authority did not arrive at the requisite subjective satisfaction after proper application of mind, thereby rendering the detention order legally unsustainable.
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16. In light of the foregoing discussion, we hold that the detention order passed against the petitioner stands vitiated and is liable to be set aside.
17. This Writ Petition is allowed and Ext.P1 order of detention is set aside. The Superintendent of Central Prison, Viyyur, Thrissur, is directed to release the detenu, Sri. Ameer, aged 29 years, S/o Noufal, Thennambara House, BSNL Road, Kariyannur Desom, Kariyannur Taluk, Thrissur, forthwith, if his detention is not required in connection with any other case. The Registry is directed to communicate the order to the Superintendent of Central Prison, Viyyur, Thrissur, forthwith.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
K.V. JAYAKUMAR,
JUDGE
Sbna/
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APPENDIX OF WP(CRL.) 640/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE DETENTION ORDER NO.
DCTSR/874/2025-C1 DATED 07/02/2025