Kerala High Court
Fathima Habeeba vs State Of Kerala on 5 June, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:39391
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
THURSDAY, THE 5TH DAY OF JUNE 2025 / 15TH JYAISHTA, 1947
WP(CRL.) NO. 551 OF 2025
PETITIONER:
FATHIMA HABEEBA
AGED 28 YEARS
W/O MUNAVAR FIROOSE, KUMBALAPURATH HOUSE,
MOTTAMBRAM, KANNUR, PIN - 670304
BY ADV. SMT.K.REEHA KHADER
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,
HOME & VIGILANCE DEPARTMENT, GOVERNMENT SECREATRIAT,
THIRUVANANTHAPURAM-695001
2 THE DEPUTY INSPECTOR GENERAL OF POLICE
KANNUR RANGE, KANNUR - 670001
BY ADV.
SRI.K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
04.06.2025, THE COURT ON 05.06.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
This is a writ petition filed under Article 226 of the Constitution of India, challenging Ext.P1 order of externment dated 11.02.2025 passed against the petitioner under Section 15(1)(a) of the Kerala Anti-Social Activities (Prevention) Act, 2007 [KAA(P) Act for the sake of brevity]. By the said order, the petitioner was interdicted from entering the limits of Kannur Revenue District for a period of one year from the date of the receipt of the order.
2. The records available before us reveal that, it was after considering the recurrent involvement of the petitioner in criminal activities, the District Police Chief, Kannur City submitted a proposal for initiation of proceedings against the petitioner under Section 15(1)(a) of the KAA(P) Act, 2007 before the authorised officer, the Deputy Inspector General of Police, Kannur Range. For initiation of the said proceedings, the petitioner was classified as a "known goonda" as defined under Section 2(o)(ii) of the KAA(P) Act, 2007.
3. The authority considered two cases in which the petitioner was involved for passing the order of externment. The case registered against the petitioner with respect to the last prejudicial activity is crime WP(Crl)No. 551 OF 2025 :3: 2025:KER:39391 No.25/2024 of Women Police Station, Kannur, alleging commission of offences punishable under Sections 21(b) r/w 8(c) and 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act.
4. Heard Smt. K.Reeha Khader, the learned counsel appearing for the petitioner, and Sri. K.A. Anas, the learned Government Pleader.
5. The learned counsel for the petitioner would submit that Ext.P1 order was passed on improper consideration of facts and without proper application of mind. According to the counsel, Ext.P1 order was passed in a casual manner, and it was without assigning any reason, the jurisdictional authority passed an order of externment for a maximum period of one year. The learned counsel urged that when the maximum period of externment was ordered, it was incumbent upon the authority to show the reasons for the same. Nevertheless, no convincing reason, whatsoever, has been assigned by the authority for passing the maximum period of externment. The learned counsel further submitted that the petitioner, a lady with a two-year-old child, was forced to reside outside her district due to the impugned order. According to the counsel, pursuant to the order, the petitioner took a rented house at a place called Chittariparambu and now she finds it very hard to meet both the ends together and to take care of her two-year-old child who suffers from WP(Crl)No. 551 OF 2025 :4: 2025:KER:39391 various ailments. According to the counsel, the petitioner is unable to take up any job as there is nobody to look after her child in her absence.
6. Per contra, the learned Government Pleader submitted that the impugned order was passed by the jurisdictional authority after proper application of mind and upon arriving at the requisite objective as well as subjective satisfaction. According to the learned Government Pleader, there is nothing wrong in passing an order of externment for one year if the circumstances warrant it, and therefore, no interference is required in the impugned order.
7. A perusal of the records reveals that it was after considering the involvement of the petitioner in two cases registered under NDPS Act, the proceedings under KAA(P) Act were initiated against her. Out of the two cases considered by the jurisdictional authority, the case registered with respect to the last prejudicial activity is crime No.25/2024 of Women Police Station, Kannur, alleging commission of offences punishable under Sections 21(b) r/w 8(c) and 29 of the NDPS Act. The petitioner was arrested in the said case on 04.10.2024 and subsequently, she was released on bail on 21.11.2024. It was on 17.01.2025, the District Police Chief, Kannur City, mooted the proposal for initiation of proceedings under KAA(P) Act against the petitioner. Thereafter, on WP(Crl)No. 551 OF 2025 :5: 2025:KER:39391 25.01.2025, the jurisdictional authority issued a notice to the petitioner calling upon her to show cause as to why an order of externment should not be passed against her. In the said notice, in order to afford the petitioner an opportunity of being heard, she was further directed to appear in person before the jurisdictional authority on 05.02.2025. In response to the said notice, the petitioner appeared before the jurisdictional authority on 05.02.2025. It was after considering the written reply submitted by the petitioner and hearing her in detail, Ext.P1 order was passed. The sequence of events narrated above clearly reveals that there is no delay either in mooting the proposal or in passing Ext.P1 order. Similarly, the records reveal that the impugned order was passed after scrupulously complying with the procedural safeguards provided under the KAA(P) Act.
8. The main dispute that revolves around this writ petition is with respect to the period of externment ordered by the jurisdictional authority. As already stated, the main grievance of the petitioner is that, it was without assigning any reason, the maximum period of externment was ordered. While considering the said contention, it is to be noted that the scope of interference by a court of law in the subjective as well as objective satisfaction arrived on by the jurisdictional authority which WP(Crl)No. 551 OF 2025 :6: 2025:KER:39391 passed an order of externment is too limited. However, an order of externment certainly has a heavy bearing on the personal as well as fundamental rights of an individual. Such an order would certainly deprive a citizen concerned of his fundamental right of free movement throughout the territory of India. By such an order, she is prevented from entering her house and from residing with her family members during the subsistence of the order as well. Therefore, while prescribing the maximum period of externment, the jurisdictional authority must apply its mind properly, and the order must reflect the necessity of passing the maximum period of externment. In other words, the order should provide reasons for invoking the maximum period of externment. In short, the jurisdictional authority shall exercise its power cautiously, though the authority is clothed with the power to order a maximum period of externment, subject to the restriction that it shall not be more than one year.
9. The Hon'ble Supreme Court in Deepak S/o Laxman Dongre v. State of Maharashtra and Others [(2023) 14 SCC 707], while dealing with a preventive detention order passed under the Maharashtra Police Act, 1951 held that:
"On a plain reading of Section 58, it is apparent that while passing an order under Section 56, the competent authority must WP(Crl)No. 551 OF 2025 :7: 2025:KER:39391 mention the area or District or Districts, in respect of which the order has been made. Moreover, the competent authority is required to specify the period for which the restriction will remain in force. The maximum period provided for is of two years. Therefore, an application of mind on the part of the competent authority is required for deciding the duration of the restraint order under Section 56. On the basis of the objective assessment of the material on record, the authority has to record it subjective satisfaction that the restriction should be imposed for a specific period. When the competent authority passes an order for the maximum permissible period of two years, the order of externment must disclose an application of mind by the competent authority and the order must record its subjective satisfaction about the necessity of passing an order of externment for the maximum period of two years which is based on material on record. Careful perusal of the impugned order of externment dated 15th December, 2020 shows that it does not disclose any application of mind on this aspect. It does not record the subjective satisfaction of respondent No.2 on the basis of material on record that the order of externment should be for the maximum period of two years. If the order of externment for the maximum permissible period of two years is passed without recording subjective satisfaction regarding the necessity extending the order of externment to the maximum permissible period, it will amount to imposing unreasonable restrictions on the fundamental right guaranteed under clause (d) of Article 19(1) of the Constitution of India."
10. Keeping in mind the above propositions of law, while coming to the impugned order, it can be seen that the reasons for imposing the maximum period of externment is seen specifically mentioned. In the order, it is stated that the petitioner has involved in the last prejudicial activity regardless of the bail conditions imposed on her in the bail order WP(Crl)No. 551 OF 2025 :8: 2025:KER:39391 while granting bail in the last but one case. Moreover, it is mentioned that the action taken under Section 126 of BNS was also not effective to prevent the externee from repeating criminal activities and that is why the maximum period of externment was ordered. Therefore, we are of the view that the petitioner could not be heard to say that the maximum period of externment was ordered by the jurisdictional authority without proper application of mind and without assigning sufficient reasons.
11. However, from the submission made by the learned counsel for the petitioner, it is discernible that the petitioner is having a two-year-old child. Similarly, in the impugned order, it is mentioned that, in the reply submitted by the petitioner to the show cause notice issued by the jurisdictional authority, it is mentioned that her two-year-old child suffers various ailments and is under medication. Furthermore, the reply states that she has no acquaintances or relatives in other districts and being forced to reside elsewhere would adversely affect both her and her child's lives. As already stated, the learned counsel for the petitioner further submitted that the petitioner is unable to take up any job as there is nobody to look after her child in her absence. We also find some merit in the submission made by the learned counsel, highlighting the vulnerability of the petitioner and her child.
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12. This Court in Dinchu Mohanan v. State of Kerala and another [2015 (2) KHC 101] held that the court is empowered to annul, amend, or confirm the order of externment passed under Section 15(1) of the KAA(P) Act. Given the circumstances of the case, we are of the view that it is just and proper to modify the order passed under Section 15(1)(a) of the KAA(P) Act to one under Section 15(1)(b) of the Act.
In the result, the writ petition is allowed in part. Ext.P1 order is modified to one under Section 15(1)(b) of the KAA(P) Act, and the petitioner is directed to appear before the Station House, Women Police Station, Kannur, on every Saturday between 10.00 a.m. and 12.00 p.m. for one year from the date of Ext. P1 order.
Sd/-
P.B. SURESH KUMAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
WP(Crl)No. 551 OF 2025 :10:
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APPENDIX OF WP(CRL.) 551/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER NO. A3-1081/2025/KR
ISSUED BY THE 2ND RESPONDENT DATED
11.2.2025.
Exhibit P2 TRUE COPY OF THE APPLICATION SUBMITTED
BEFORE THE SUB DIVISIONAL MAGISTRATE COURT
THALIPARAMBA DATED 15.11.2024.