Kerala High Court
Rosily Antony vs State Of Kerala on 10 July, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
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WP(CRL.) NO. 508 OF 2025 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
THURSDAY, THE 10TH DAY OF JULY 2025 / 19TH ASHADHA, 1947
WP(CRL.) NO. 508 OF 2025
PETITIONER:
ROSILY ANTONY
AGED 57 YEARS
RESIDING AT PAYYAPPILLY HOUSE, THURAVOOR P.O,
ANGAMALY, ERNAKULAM DISTRICT, PIN - 683578
BY ADVS.
SRI.M.VIVEK
SMT.RENEETA VINU
SRI.P.R.RAGESH
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
2 THE DISTRICT MAGISTRATE
COLLECTORATE, KAKKANAD, ERNAKULAM, PIN - 682030
3 THE DISTRICT POLICE CHIEF (RURAL),
ALUVA, ERNAKULAM, PIN - 683101
4 THE SUB-INSPECTOR OF POLICE,
ANGAMALY POLICE STATION, PIN - 683572
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WP(CRL.) NO. 508 OF 2025 2
BY ADVS.
PUBLIC PROSECUTOR
ADDL.DIRECTOR GENERAL OF PROSECUTION
ADV. K.A. ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR FINAL
HEARING ON 10.07.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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WP(CRL.) NO. 508 OF 2025 3
"CR"
JUDGMENT
Raja Vijayaraghavan V, J.
The above-captioned Writ Petition is filed seeking the following reliefs:
"(i) Issue a writ of Habeas Corpus commanding the respondents to release Rony, son of the petitioner who has been undergoing illegal detention pursuant to Ext.P1 order after producing him before this Hon'ble Court.
(ii) Issue a writ of certiorari or any other writ, direction or order to quash Ext. P1 order and Ext.P3 confirmation.
2. Ext.P1 order of detention, which is under challenge in this Writ Petition, has been passed by the 2nd respondent preventively detaining Sri. Rony, the son of the petitioner, invoking powers under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 ("KAA(P) Act" for the sake of brevity). 3. Ext.P1 reveals that the proposal for initiating proceedings under the KAA(P) Act was submitted by the 3rd respondent on 20.12.2024. The detenu was classified as a "known goonda" on account of his involvement in four crimes, the details of which are as under:-
1. Crime No.2247 of 2024 of the Angamaly Police Station registered under Sections 189(2), 191(2), 191(3), 190, 103(1), 49, 249(b) of 2025:KER:50555 WP(CRL.) NO. 508 OF 2025 4 Bharatiya Nyaya Sanhita, 2023.
2. Crime. No.1725 of 2019 of the Angamaly Police Station registered under Section 307 r/w Section 34 of IPC.
3. Crime No. 1025 of 2020 of the Angamaly Police Station registered under Sections 341, 365, 398, 392, 440, 506(ii), 34 of the IPC.
4. Crime. No 666 of 2023 of the Kalady Police Station registered under Sections 341, 323, 34 of IPC.
4. The last prejudicial activity, i.e., Crime No. 2247 of 2024, in which case the detenu has been arrayed as the 4th accused, was allegedly committed on 15.10.2024. Ext.P2 is the sponsorship report submitted by the District Police Chief on 20.12.2024. It is based on Ext. P2 that Ext. P1 detention order was issued on 30.01.2025. The order was approved by the Government on 15.02.2025. The matter was referred for the opinion of the Advisory Board on 18.02.2025, which was received on 26.03.2025. On the basis of the opinion so received, the detention order was confirmed by order dated 02.04.2025, and the detenu was ordered to be detained for a period of 6 months.
5. Sri. M. Vivek, the learned counsel appearing for the petitioner, made the following submissions:
(a) The detention order is liable to be quashed on the ground of non-application of mind by the detaining authority. It has been consistently 2025:KER:50555 WP(CRL.) NO. 508 OF 2025 5 held by both the Apex Court as well as this Court that the subjective satisfaction of the detaining authority must be based on proper and independent consideration of all relevant materials. Mere mechanical reproduction of inputs received from sponsoring authorities will vitiate the order of detention.
(b) The impugned detention order is a verbatim reproduction of the report of sponsorship, which reveals that the detaining authority did not exercise its independent subjective satisfaction but merely endorsed the view of the police. In fact, the only visible change in the detention order from the report of sponsorship is the replacement of the word "Ethrukakshi" (meaning "opposite party") with "Thankalkku" (meaning "you"). To substantiate this contention, the learned counsel referred to paragraph Nos. 7 to 13 of the detention order and compared them with Page Nos. 8 and 9 of the sponsorship report. According to him, such literal replication is itself conclusive proof of non-application of mind. In support, reliance is placed on the decisions of the Hon'ble Supreme Court in Jai Singh v. State of Jammu and Kashmir1 and Rajesh Vashdev Adnani v. State of Maharashtra & Others2.
c) As regards the last prejudicial act, the final report in Crime No. 2247 of 2024 was filed before the jurisdictional Magistrate on 10.01.2025. 1
[AIR 1985 SC 764] 2 [(2005) 8 SCC 390] 2025:KER:50555 WP(CRL.) NO. 508 OF 2025 6 Immediately thereafter, on 14.01.2025, the sponsoring authority submitted a report to the detaining authority informing that the final report had been filed. However, in Ext.P1 detention order, it is stated that the investigation in Crime No. 2247 of 2024 was still pending. This glaring discrepancy, according to the learned counsel, further reinforces the inference that the detention order was mechanically passed without proper evaluation of relevant facts and was simply a reproduction of the earlier sponsorship report, prepared prior to the filing of the final report.
(d) In connection with the said prejudicial act, the detenu was arrested on 04.11.2024 and has remained in judicial custody ever since. Even on the date the detention order was passed, i.e., 30.01.2025, the detenu continued to be in custody. The last prejudicial act being a case of murder, the likelihood of the detenu being released on bail was extremely remote. Further, the detenu had not even moved any application for bail before the jurisdictional court. However, there is no indication in the detention order as to the question whether the preventive detention of a person who is in judicial custody was required in the facts and circumstances.
6. Sri. Anas K.A., the learned Government Pleader, stoutly opposed the submissions advanced on behalf of the petitioner. He submitted that the contention regarding non-consideration of the final report by the detaining authority is misconceived. He pointed out that the documents supplied to the 2025:KER:50555 WP(CRL.) NO. 508 OF 2025 7 detenu clearly include the final report in Crime No. 2247 of 2024, which would show in unequivocal terms that the detaining authority was aware of the filing of the final report and had the opportunity to evaluate the role of the detenu in the case. It was submitted that the final report discloses the active involvement of the detenu in the commission of the last prejudicial act, which was a brutal retaliatory murder. There are eight accused in the case, and the detenu has been arrayed as accused No. 4. The learned Government Pleader urged that the very fact that the final report was supplied along with the detention order negates the plea of non-application of mind. He asserted that the detention order is not a verbatim copy of the report of sponsorship. According to him, the similarity in content is only because the crimes, allegations, and factual details are the same and therefore, any overlap in language will not imply that the report was merely copied. Lastly, regarding the contention in the detention order that the investigation in Crime No. 2247 of 2024 was still pending, he submitted that this was a mere typographical error, which would not vitiate the order of detention, especially in light of Section 7 of the KAA(P) Act, which speaks about severability. 7. We have carefully considered the submissions advanced and have gone through the records.
8. Before dealing with the facts and the law, we shall just remind ourselves of the principles laid down by the Apex Court in some much cited precedents that have stood the test of time.
2025:KER:50555 WP(CRL.) NO. 508 OF 2025 8 8.1. In Jagannath Misra v. State Of Orissa3, the Apex Court held that the proceedings in the matter of detention and the order of detention should show that the authority had acted with all due care and caution and with the sense of responsibility necessary when a citizen is deprived of his liberty without trial. If the authority concerned has not so acted and if it appears that it did not apply its mind properly before making the order of detention, the order in question would be vitiated.
8.2. In Sadhu Roy v. State of West Bengal4, the Apex Court speaking through V.R. Krishna Iyer (J). observed as under:
"The satisfaction, though attenuated by 'subjectivity' must be real and rational, not random divination, must flow from an advertence to relevant factors, not be a mock recital or mechanical chant of statutorily sanctified phrases."
It was further held that if the order is passed with a casualness, it would show that the mind of the authority concerned had really not applied to the question of detention.
8.3. In Mallada K Sri Ram (S) v. State Of Telangana And Others (S)5, the Apex Court has held as under:
3
[AIR 1966 SC 1140] 4 [1975 AIR SC 919] 5 [2022 SCC ONLINE SC 424] 2025:KER:50555 WP(CRL.) NO. 508 OF 2025 9 "However, the personal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal proceeding. The powers of preventive detention are exceptional and even draconian. Tracing their origin to the colonial era, they have been continued with strict constitutional safeguards against abuse. Article 22 of the Constitution was specifically inserted and extensively debated in the Constituent Assembly to ensure that the exceptional powers of preventive detention do not devolve into a draconian and arbitrary exercise of state authority."
8.4. In Ashadevi v. K.Shivaraj Addl.Chief Secy To the Govt, of Gujarat6, the Apex Court after referring to precedents noted as under, "The principle that could be clearly deduced from the above observations is that if material or vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before or are not considered by the detaining authority it would vitiate its subjective satisfaction rendering the detention order illegal. After all the detaining authority must exercise due care and caution and act fairly and justly in exercising the power of detention and if taking into account matters extraneous to the scope and purpose of the statute vitiates the subjective satisfaction and renders the detention order invalid then failure to take into consideration the most material or vital facts likely to influence the mind of the authority one way or the other 6 1979 AIR SC 447 2025:KER:50555 WP(CRL.) NO. 508 OF 2025 10 would equally vitiate the subjective satisfaction and invalidate the detention order."
9. In the light of the principles and observations of the Apex Court, we shall analyse the contentions advanced before us by the learned counsel.
10. We find that the last prejudicial activity committed by the detenu is his involvement in Crime No. 2247 of 2024. The incident took place on 15.10.2024. He has been in custody ever since. Ext.P2 is the sponsorship report submitted by the District Police Chief on 20.12.2024. It appears that before the detention order was passed on 30.01.2025, the final report was laid before the jurisdictional court on 10.01.2025. The factum of submission of the final report was brought to the notice of the detaining authority on 14.01.2025. However, in the order of detention, the detaining authority is blissfully unaware of this fact. We have no doubt that this is an important aspect to be reckoned particularly when the investigating officer has submitted the report within the statutory period to deny the accused from getting statutory bail. The fact that the accused was in custody all through for the serious offence committed by him does not appear to have crossed the mind of the authorities. This ignorance of the factum of submission of the final report has close links with the main contention advanced by the learned counsel, that the detention order is a verbatim reproduction of the report of sponsorship. As stated earlier, the report of sponsorship was submitted before the submission of the final report. Of course, a report was forwarded to 2025:KER:50555 WP(CRL.) NO. 508 OF 2025 11 the detaining authority on 14.01.2025. A reading of the detention order would reveal that it is almost a verbatim reproduction of the sponsorship report. Of course some isolated words are added here and there but on an overall appreciation, it can be seen that the detaining authority has merely extracted the report of the Police Chief and did not independently apply his mind. This is exactly the reason why the submission of the final report was also not noted in the detention order as it is mentioned that the case is still under investigation.
11. In Jai Singh (supra), the Apex Court had occasion to consider a similar contention. We shall extract the relevant portion:
"..................First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the senior Superintendent of Police, Udhampur to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father's name is mentioned as Sardar Ram Singh and the address is given as Village Bharakh, Tehsil Reasi. Thereafter it is recited "The subject is an important member of...." Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words "the subject is" into "you Jai Singh, s/o Ram Singh, resident of Village Bharakh, Tehsil Reasi". Thereafter word for word the police dossier is repeated and the word "he" wherever it 2025:KER:50555 WP(CRL.) NO. 508 OF 2025 12 occurs referring to Jai Singh in the dossier is changed into "you" in the grounds of detention. We are afraid it is difficult to find greater proof of non-application of mind."
After noting the above aspects it was held that the liberty of a subject is a serious matter and it is not to be trifled with in this casual, indifferent and routine manner. The same view was taken in Rajesh Vashdev Adnani (supra).
12. It must be remembered that in cases of preventive detention no offence is proved and the justification of such detention is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as a 'jurisdiction of suspicion', [See: State of Maharashtra v. Bhaurao Punjabrao Gawande7]. The detaining authority passes the order of detention on subjective satisfaction. Since clause (3) of Article 22 specifically excludes the applicability of clauses (1) and (2), the detenu is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however technical, is mandatory and vital. [See: Rekha v. State of T.N8]
13. We are of the view that the detention order displays total non-application of mind by the detaining authority while arriving at the requisite 7 [(2008) SCC 3 613] 8 [(2011) 5 SCC 244] 2025:KER:50555 WP(CRL.) NO. 508 OF 2025 13 satisfaction. The petitioner is therefore entitled to succeed in this petition.
14. In the result, this Writ Petition is allowed and Ext.P1 order of detention is set aside. The Superintendent, Central Prison, Viyyur, Thrissur, is directed to release the detenu, Sri. Rony Antony, Payyappilly House, near St. Augustine Church, Thuravur Kara, Thuravu Village, Ernakulam District, forthwith, if his detention is not required in connection with any other case.
The Registry is directed to communicate the order forthwith.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
K. V. JAYAKUMAR,
JUDGE
msp
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WP(CRL.) NO. 508 OF 2025 14
APPENDIX OF WP(CRL.) 508/2025
PETITIONER EXHIBITS
EXHIBIT-P1 TRUE COPY OF THE DETENTION ORDER UNDER
SECTION OF THE KERALA ANTI-SOCIAL ACTIVITIES
(PREVENTION) ACT 2007 DATED 30-01-2025 BY THE
2ND RESPONDENT
EXHIBIT-P2 TRUE COPY OF THE DOCUMENTS SUPPLIED TO THE
DETENU AND RELIED BY THE 2ND RESPONDENT FOR
PASSING EXT-P1 ORDER
EXHIBIT-P3 TRUE COPY OF THE GOVERNMENT ORDER CONFIRMING
EXT-P1 ORDER DATED 03-04-2025