M.P.Varghese vs State Of Kerala
2021 Latest Caselaw 11646 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                 THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                        &
                   THE HONOURABLE MRS. JUSTICE M.R.ANITHA
           FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943
                           WP(Crl.).No.80 OF 2021
PETITIONER:

                 M.P.VARGHESE, AGED 54 YEARS
                 S/O.POULOSE, PERMANENT RESIDENT OF MATTAPPADAN HOUSE,
                 RAYAMANGALAM VILLAGE, P.O. RAYAMANGALAM, ERNAKULAM-683545.

                 BY ADVS.
                 SHRI.S.K.PREMRAJ
                 SRI.C.ANIL KUMAR
                 SRI.S.K.KRISHNAKUMAR
                 SMT.V.SARITHA
                 SRI.P.M.MANASH
                 SMT.REENU KURIAN

RESPONDENTS:

       1         STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF
                 SECRETARY TO THE GOVERNMENT, HOME DEPARTMENT, GOVERNMENT
                 SECRETARIAT, THIRUVANANTHAPURAM-695001.

       2         DISTRICT MAGISTRATE,COLLECTORATE, KAKKANAD, ERNAKULAM-
                 682030.

       3         DISTRICT POLICE CHIEF (RURAL),
                 ALUVA, ERNAKULAM-683101.

       4         INSPECTOR OF POLICE,KURUPPAMPADY POLICE STATION,
                 KURUPPAMPADY, ERNAKULAM-683545.

       5         ADVISORY BOARD,KERALA ANTI-SOCIAL ACTIVITIES (PREVENTION)
                 ACT 2007, PADAM ROAD, ELAMAKKARA, ERNAKULAM-682026,
                 REPRESENTED BY ITS SECRETARY.

       6         SUPERINTENDENT,CENTRAL PRISON, VIYYUR,
                 THRISSUR-68010.

                 R1-4, R6 BY GOVERNMENT PLEADER
                 R1-4, R6 BY ADDL.DIRECTOR GENERAL OF PROSECUTION

OTHER PRESENT:

                 SRI.K.A.ANAS, GOVERNMENT PLEADER

     THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY              HEARD   ON
09.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P(Crl) No. 80/2021                   - 2 -




                K. Vinod Chandran & M.R. Anitha, JJ.
                -------------------------------------
                         W.P(Crl) 80 of 2021
                -------------------------------------
              Dated, this the 09th day of March, 2021

                                   JUDGMENT

Vinod Chandran, J.

The petitioner is the father of one Leo who has

been detained under the Kerala Anti-Social Activities

[Prevention] Act, 2007 [for brevity, 'KAAPA']. The learned

Counsel appearing for the petitioner contends that the

order is illegal, unjust, arbitrary and passed without

application of mind. It is argued that the order has not

been reported forthwith to the Government and the Director

General of Police as is mandated under S.3(3). Violation of

S.7 is alleged insofar as copies of the order as well as

the statement of witnesses recorded under S.161 of the

Cr.PC having not been furnished. There is inordinate delay

from the last prejudicial act and the result of the

proceedings in MC No. 47/2018, under S.107 of the Cr.PC has

not been considered by the Detaining Authority. It is

pointed out that in the counter affidavit filed, it is

categorically stated that the MC proceedings were closed on

28.02.2020 where as in the order, the Detaining Authority

speaks of the proceedings having not been taken up for

reason of the restrictions due to the Pandemic situation.

It is pointed out that the detenu was released on bail as

per order dt. 25.09.2020 in B.A No. 5562/2020 produced at

page 55(a) of Ext.P1. There is no proper consideration of

whether the conditions specified therein being sufficient

to restrain the detenu from further commission of offence.

2. The learned Government Pleader submits that the

detenu is involved in a number of crimes and is an active

member of a gang of criminals. It is pointed out that after

the Bail Order there is commission of offence in violation

of the conditions in Ext.P1; ie: after the detention order

too. There is sufficient explanation of delay in the

detention order and there is no reason to interfere with

the same.

3. We see that the petitioner has been proceeded

under the KAAPA for reason of the following offences.

1.Crime No. 132/2016 of Angamaly Police Station under S. 143, 144, 146, 147 148, r/w 149, 120(B), 107 r/w 109, 112 r/w 109, 118, 212, 307, 34 IPC & S. 25(1) (a) & 27 of Arms Act.[CP49/19 of the JFCM- Court Angamaly].

2. Crime No.4180/17 of Perumbavoor Police Station U/S 120(B), 323, 395, 379, 506(i) IPC & S. 27 of Arms Act. (SC 251/2020 of Addl. Dist. Sessions Court II Paravoor)

3.Crime No. 855/2018 of Kuruppampady Police Station U/s. 341, 323, 294(b), 506(1) 34 IPC (CC 615/18 of JFCM Court III Perumbavoor)

4. Crime No. 885/2020 of Kuruppampady Police Station U/S 212, 468, 471, 307 & 34 IPC, S. 3(a) of Explosive Substances Act, 1908 & S.27 of Arms Act. The case is under investigation.

4. The detenu hence falls under the definition of

'known goonda' under the KAAPA. We see from the records

that the order has been sent forthwith to the Government

and the DGP. It is also seen from the documents produced

before this court that the entire documents relied on by

the Detaining Authority have been supplied to the detenu.

In the above circumstances we find no violation of S.3(3)

or S. 7 of the KAAPA.

5. As far as the MC proceedings were concerned in

para 4 of the detention order it is stated that 107 Cr.PC

proceedings pending before the Sub Divisional Magistrate as

MC 47/2018 is not proceeded with due to the Pandemic

situation. However, the counter affidavit filed by the 3rd

respondent indicate that the detenu was arrested on

17.02.2019 in Crime No.178/2019 and sent to Judicial

custody. The detenu is said to have been released on bail

only on 16.03.2020. The MC proceedings above referred were

closed on 28.02.2020. The sponsoring authority has not

thought it fit to inform the closure of the proceedings

before the SDM Court to the Detaining Authority. There is

non-consideration of the said aspect especially when there

could have been a further proceedings initiated under S.107

of the Cr.PC.

6. There is also the contention of delay from the

last prejudicial act. The last prejudicial act alleged

against the detenu is on 12.07.2020 in Crime No. 885/2020

of Kuruppampady Police Station. He was arrested in the said

case on 19.07.2020 and was released on 28.09.2020 as per

the above referred order in B.A No.5562/2020. The said

order has a condition that the accused/applicant shall not

get involved in similar cases during the pendency of the

Bail. Admittedly there is no crime registered till the

detention order passed on 17.11.2020. The bail order was

specifically referred to by the sponsoring authority and it

has been observed that the conditions are complied with

scrupulously by the detenu. However, the recommendation has

been made noticing the antecedents of the detenu and the

apprehension of indulgence in further crimes.

7. The Detaining Authority has also in para 7 of

the operative portion referred to the stringent conditions

in the bail application and has merely brushed it aside on

the apprehension that the detenu would involve in further

crimes; which apprehension is on the basis of the criminal

antecedents of the detenu. The learned Government Pleader

has submitted that there was an offence committed after the

release of the detenu on bail not referred to in the

detention order. If that be so, it is for the police to

move for cancellation of Bail in Crime No. 885/2020.

8. The delay, according to the Government Pleader

has been explained in the last but one paragraph of the

order of the Detaining Authority. The delay is stated to

be three months and six days computing the same from

17.07.2020, the date of commission of Crime No. 885/2020.

The detenu was arrested on 19.07.2020 and released on bail

28.09.2020. The sponsoring authority took up the matter

only on 23.10.2020, more than three months from the date of

commission of the last prejudicial act. There is no

explanation by either the sponsoring authority or

satisfaction recorded by the Detaining Authority on the

explanation for the delay in sponsoring the detenu's case

under KAAPA. The administrative rig-morale is stated as an

explanation for the delay in passing the order by the

Detaining Authority. When the detention was recommended on

23.10.2020 the Detaining Authority passed its order on

17.11.2020 which cannot be said to be unduly delayed.

However the delay in the sponsoring authority recommending

detention persuades us to release the detenu. We make it

clear that this will not preclude the authority from moving

the appropriate Court for cancellation of bail in Crime

No.885/2020 of Kuruppampady Police Station. We set aside

the order for reason of the closure of the proceedings

under S.107 having not been placed before the Detaining

Authority and the delay caused in recommending detention.

The detenu shall be released forthwith if he is not

required in any other case.

The Writ Petition (Crl) is allowed.

Sd/-

K.VINOD CHANDRAN JUDGE

Sd/-

M.R.ANITHA JUDGE jma

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE REPORT NO.733/CAMP/2020/ER DATED 23.10.2020 SUBMITTED BY THE 3RD RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE DETENTION ORDER NO.DCEKM/9611/2020/M7 DATED 17.11.2020 PASSED BY THE 2ND RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE GROUNDS OF DETENTION.

EXHIBIT P4 TRUE COPY OF THE MEMO FOR EXECUTION OF THE ORDER OF DETENTION DATED 17.01.2020.

EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 15.12.2020 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT NOS.1 AND 5.

EXHIBIT P6 TRUE COPY OF THE CONFIRMATION ORDER PASSED BY THE 1ST RESPONDENT VIDE GO(RT)NO.431/2021/HOME DATED 09.02.2021.

EXHIBIT P7 TRUE COPY OF THE ORDER NO.SSA5/134/2020/HOME DATED 15.02.2021 OF THE 1ST RESPONDENT.