Thanagal Kunju vs State Of Kerala
2021 Latest Caselaw 2340 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
               THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                    &
                 THE HONOURABLE MRS. JUSTICE M.R.ANITHA
      THURSDAY, THE 21ST DAY OF JANUARY 2021 / 1ST MAGHA, 1942
                         WP(Crl.).No.253 OF 2020
PETITIONER:

               THANAGAL KUNJU, AGED 65 YEARS
               S/O KUNJU MOIDEEN KUNJU, THARAYIL THEKKATHIL, VARAVA,
               PERUMANTHAZHA MURIYIL, KARUNAGAPPAALY VILLAGE, KOLLAM
               TALUK, KOLLAM DISTRICT

               BY ADVS.
               SRI.C.RAJENDRAN
               SHRI.K.VIJAYAN

RESPONDENTS:

      1        STATE OF KERALA, REPRESENTED BY THE ADDL. CHIEF
               SECRETARY (HOME), GOVERNMENT OF KERALA,GOVERNMENT
               SECRETARIAT, THIRUVANANTHAPURAM-695 001.

      2        THE DISTRICT MAGISTRATE,
               CIVIL STATION, KOLLAM-691 001.

      3        SUPERINTENDENT OF POLICE,
               (RURAL), SUPERINTENDENT OFFICE, KOLLAM-691 001.

      4        STATION HOUSE OFFICER,OCHIRA POLICE STATION,
               OCHIRA,KOLLAM DISTRICT-690 526.

      5        THE SUPERINTENDENT,CENTRAL PRISON, POOJAPPURA,
               THIRUVANANTHAPURAM-695 012.

      6        THE SUPERINTENDENT,CENTRAL PRISON,
               THRISSUR-680 010.

               R1-6 BY ADDL.DIRECTOR GENERAL OF PROSECUTION
               R1-6 BY GOVERNMENT PLEADER

OTHER PRESENT:

               GOVERNMENT PLEADER SRI.K.A.ANAS
               ADDL.DGP SRI.SURESH BABU THOMAS WITH GOVERNMENT
               PLEADER SRI.K.A.ANAS
               ADDL.DGP SRI.SURESH BABU THOMAS WITH GOVERNMENT
               PLEADER SRI.K.A.ANAS

      THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
18-01-2021, THE COURT ON 21-01-2021 DELIVERED THE FOLLOWING:
 W.P.(Crl.) No.253 of 2020               2




             K. Vinod Chandran & M.R Anitha, JJ.

-------------------------------------

WP(Crl.) No.253 of 2020

------------------------------------ Dated, this the 21st day of January, 2021

K. Vinod Chandran, J.

An aggrieved father is before us raising

contentions against the preventive detention of

his son. The detenue was ordered to be detained

under the provisions of Kerala Anti-Social

Activities (Prevention) Act, 2007 (for brevity

"KAAPA") by Ext.P1 order dated 17.12.2019. The

actual detention was made on 11.08.2020 after

getting approval from the jurisdictional Court,

which had remanded the detenue to judicial custody

in Crime No.1243 of 2019 registered by FIR dated

04.12.2019.

              2.       We   heard           Sri.Rajendran           for    the

petitioner            and   Sri.Anas,              learned      Government

Pleader        on     behalf    of      the      State.      Sri.Rajendran

raised       the      following      grounds       in    support      of   the




prayer       to     release         the          detenue      from      preventive

detention. It is argued that under Section 10 of

the KAAPA, though there is a bar insofar as

appearance of legal practitioners before the

Advisory Board, the detenue has a valuable right

to be heard in person. He was never informed of

that right nor was he given such right to appear

in person and put forth his case. It is further

argued that the detention as per Ext.P1 order was

after almost 9 months, in which period the detenue

had not indulged in any crime. The detenue was

also in station and the detaining authorities did

not think it fit to make his arrest for 9 months,

especially when the preventive detention ordered

was only for 6 months. There is no live link

available to detain him with such delay. Though

the arrest is said to have been recorded on

11.08.2020, it is the submission of the detenue

that he was actually arrested on 08.08.2020 and

produced before a Hospital, where he was detained

till he tested negative for Covid 19. He was again

kept in quarantine till 16.09.2020, on which date

alone he was produced before the Jail Authorities.

3. The approval of detention was made on

24.08.2020 beyond the period prescribed of 12 days

from the date of detention, which was actually

08.08.2020. The continued detention in a Hospital

and later, on quarantine prejudiced the detenue in

making an effective representation. Further, it is

contended that the father of the petitioner, after

taking legal advice, had sent a draft copy of the

representation to be submitted before the

Government and the Advisory Board, produced at

Exts.P15 & P16. The same was sent by registered

post to the Superintendent, Central Prison, as is

evidenced from Ext.P17. The detenue asserts that

the said copy of representations received by the

Superintendent was torn off and the detenue was

asked to make a representation in his own hand.

This had prejudiced him considerably for reason of

compelling contentions taken in Exts.P15 & P16

having not reflected in the handwritten

representation. It is then argued that the bail

orders in Crime Nos.833 of 2015 and 945 of 2018

were not enclosed with the documents supplied to

the detenue, nor were the conditions imposed

therein considered by the detaining authority.

Reliance is placed on Nalini v. State of Kerala

[2013 KHC 746], a Division Bench judgment of this

Court. If the conditions in the bail order is

violated, the Police could have moved the

appropriate Court for cancellation of bail, which

was more than sufficient to detain the petitioner.

Lastly it is argued that the Government has

mechanically considered the representation since

the order rejecting it, is passed just a day after

the order affirming the Advisory Board's opinion

is issued.

4. Learned Government Pleader asserts that

the arrest was made only on 11.08.2020 and the

detenue was taken from judicial custody as per the

order of the jurisdictional court. The approval

order came on 24.08.2020 on the 12th day, and

within the period provided under Section 12 of

KAAPA; which excludes public holidays in between.

Due to the pandemic restrictions even Saturdays

were holidays for Government Offices. The

contention that the detenue was taken first to a

hospital is denied. Immediately on arrest, the

entire documents were supplied to the detenue by

the Station House Officer, Ochira, who arrested

him. Proof of service is available by way of

acknowledgment of the petitioner available in the

files produced before this Court. It is pointed

out that after arrest he was first taken to the

Central Prison and Correctional Home,

Thiruvananthapuram on the 11th itself and then

admitted to S.R. Medical College, Varkala for

facilitating Covid testing on the very next day.

Later, after reverse quarantine, the detenue was

brought to the Central Prison on 16.09.2020.

5. It is pointed out from the files that

the detenue was informed of the legal assistance

facilitated by the Superintendent of Central

Prison on 12.08.2020 itself. With respect to his

contention regarding the right to appear

personally, it is argued that there was no request

submitted expressing his desire to be personally

heard. In any event due to restrictions in force

due to pandemic, a personal hearing was not

possible and the Advisory Board had permitted a

legal practitioner to appear, who has also

submitted argument notes before the Advisory

Board. The representation as available in the

files, handwritten by the detenue is similar to

that produced at Exts.P15 & P16. Though the matter

was referred to the Advisory Board on 26.08.2020,

the representation was forwarded to the Advisory

Board, which was considered while passing the

order affirming the detention order. The delay in

executing the detention order was only due to the

petitioner having absconded. He also involved

himself in Crime No.1243 of 2019 of Ochira police

Station, which incident occurred on 03.12.2019.

Only when he surrendered in that crime on

03.08.2020, the whereabouts were known to the

Police, who immediately executed the detention

order. There is no break of live link, especially

when the detenue had committed a crime just prior

to the detention order and had absconded before

and after that. The commission of the said crime

also stands against the detenue in raising a

contention regarding the condition imposed in the

bail order. Moreover, the bail order was

specifically considered by the detaining

authority. In conclusion, it is argued that the

representation of the petitioner was independently

considered and that there was no reason to find

any prejudice having been caused to the detenue.

6. We have anxiously considered the

contentions raised by the petitioner and the

State. The detenue was arrested on 11.08.2020. The

contention that he was arrested on 08.08.2020 for

the purpose of preventive detention cannot be

believed for a moment, as the files reveal the

official memorandum issued by the JFCM Court,

Karunagappally to the Sub Inspector of Police

Ochira granting permission to effect the formal

arrest of the accused involved in Ochira Police

Station Crime No.1243 of 2019 in connection with

Ext.P1 detention order; based on which the arrest

was effected on 11.08.2020. Before arrest he was

in judicial custody. On arrest, as revealed from

the files, the detenue was supplied with all the

documents in support of the order of preventive

detention and acknowledgment received, by the

Officer, who made the arrest [page 45]. The

production of the detenue before the Central

Prison is also evidenced by the communication

issued to the detenue by the Superintendent of

Central Jail, Thiruvananthapuram dated 12.08.2020,

which also is acknowledged by the detenue [page

30]. The arrest having been made on 11.08.2020,

the approval order passed on 24.08.2020 is within

the time provided under Section 3(3) of KAAPA.

7. The delay in making a representation

for reason of his hospitalisation and quarantine

cannot be countenanced since the protocol was

brought in due to the extra-ordinary circumstance

of the spreading pandemic. The further contention

raised is with respect to an effective

representation not having been enabled before the

Advisory Board for reason of the Superintendent

having not permitted the detenue to sign on the

draft copy forwarded by his father, produced as

Exts.P15 & P16. We perused the handwritten

representation made by the detenue, available in

the files at pages 309 to 318. We have compared it

with Exts.P15 & P16. The specific contention

raised by the learned Counsel is that the grounds

appearing in the last but two paragraphs have not

been addressed, which causes prejudice to the

detenue. The last but second paragraph as per

Ext.P15 is the ground raised on the conditional

bail orders in Crime No.833 of 2015 and 945 of

2018 having not been considered by the detaining

authority. The last but one paragraph contains the

ground of the detenue having been taken after

arrest straight to the quarantine centre, which

disabled him from giving an effective

representation at the earliest point of time as

per Article 22(5) of the Constitution of India. On

comparing Exts.P15 & P16, with the handwritten

objection, we find those paragraphs having been

included in the handwritten objection as the last

but two paragraphs. What is missing is only the

contention in Exts.P15 & P16 in the last but one

paragraph that the Jail Superintendent did not

offer any assistance and that the detenue was not

even able to see the Jail Superintendent.

Obviously, these are grounds supplied by the

person who drafted Exts.P15 & P16, who had no

contact with the detenue before drafting the same.

The said contention does not appear in the

handwritten objection obviously because even

according to the detenue, the Superintendent tore

off the draft objections and asked him to make a

handwritten representation. The detenue hence was

in the presence of the Superintendent, when the

objections were written. We find no reason to find

any prejudice for reason of the Superintendent

having not permitted the detenue to merely put his

signature in Exts.P15 & P16 representation before

being forwarded to the Government and the Advisory

Board. In fact on a comparison of the documents we

are sure that the handwritten objection was one

copied out from the draft send by the detenue's

father.

8. As to the contention regarding personal

hearing, the Advisory Board had specifically

informed the detenue by communication dated

24.09.2020 that personal hearing is not practical

due to COVID 19 pandemic restrictions. The detenue

was allowed to furnish further details or

arguments through the Superintendent of Prison.

The detenue is said to have sought for legal

representation which was permitted. The Advocate

filed a detailed argument note before the Advisory

Board along with the Vakalath executed by the

detenue. We hence do not find any violation of the

provisions of Section 7 nor is any prejudice

caused to the detenue by denying permission to

personally appear before the Advisory Board; which

was also in the extra ordinary circumstance of the

regulations imposed due to the pandemic situation.

9. The next contention is with respect to

the conditions in the bail orders having not been

looked into by the detaining authority. The

contention was raised with respect to Crime

Nos.833/2015 and 945/2018, both figuring along

with others in support of the detention order.

Before us the learned Counsel for the detenue

produced only the bail order in Crime No.945/2018.

As far as Crime No. 833/2015; it is the oldest

crime referred to in the detention order.

Whatever the conditions be, it has not deterred

the detenue from continuously engaging in criminal

activities as is evidenced from the other crimes

registered in the very same Police Station at

Ochira. The bail order in Criminal MC filed in

Crime No.945/2018 was passed on 17.04.2019, before

the detention order dated 17.12.2019. However,

after being released on bail, a crime was

registered in the Ochira Police Station as Crime

No. 1243/2019 regarding an incident which occurred

on 03.12.2019 under Sections 143, 147, 148, 294B,

322, 324, 355, 506 and 149 of IPC and Section 27

of the Arms Act. The detention order has also

considered the bail order and specifically found

that the said order is not an effective deterrent

on the detenue who is a habitual offender.

We do not find any reason to interfere

with the Government order affirming the opinion of

the Advisory Board produced at Ext.P21. The

Government has also independently considered the

representation filed by the petitioner by Ext.P18

dated 15.10.2020. The mere fact that the

representation was rejected one day after Ext.P21

order does not necessarily lead to a conclusion

that the same was mechanical. We dismiss the writ

petition. There is no order as to costs.

Sd/-

K. VINOD CHANDRAN, Judge.

Sd/-

M.R. ANITHA, Judge.

sp/jma/18/01/2021

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 A TRUE PHOTOCOPY OF THE DETENTION ORDER NO DCKLM/12371/2019/M9(CC) DATED 17.12.2019

EXHIBIT P2 A TRUE PHOTOCOPY OF THE MEMO FOR EXECUTING THE ORDER DATED 17.1.2019

EXHIBIT P3 THE JAIL ADMISSION AUTHORIZATION DATED 17.12.2019

EXHIBIT P4 A TRUE PHOTOCOPY OF THE FIS IN CRIME NO 833/2015 OF OCHIRA POLICE STATION

EXHIBIT P5 A TRUE PHOTOCOPY OF THE FINAL REPORT IN 833/2015 OF OCHIRA POLICE STATION

EXHIBIT P6 A TRUE PHOTOCOPY OF THE FINAL REPORT IN CRIME NO 1843/2015 OF OCHIRA POLICE STATION

EXHIBIT P7 A TRUE PHOTOCOPY OF THE FIR IN CRIME NO 1843/2015

EXHIBIT P8 A TRUE PHOTOCOPY OF THE FINAL REPORT IN CRIME NO 2010/2015 OF OCHIRA POLICE STATION

EXHIBIT P9 A TRUE PHOTOCOPY OF THE FIR IN CRIME NO 945/2018 OF OCHIRA POLICE STATION

EXHIBIT P10 A TRUE PHOTOCOPY OF THE FINAL REPORT IN CRIME NO 945/2018 OF OCHIRA POLICE STATION

EXHIBIT P11 A TRUE PHOTOCOPY OF THE FIR IN CRIME NO 880/2019 OF OCHIRA POLICE STATION

EXHIBIT P12 A TRUE PHOTOCOPY OF THE FINAL REPORT IN CRIME 880/2019 OF OCHIRA POLICE STATION

EXHIBIT P13 A TRUE PHOTOCOPY OF THE FIR IN CRIME NO 348/2016 OF OCHIRA POLICE STATION

EXHIBIT P14 A TRUE PHOTOCOPY OF THE APPROVAL ORDER DATED 24.8.2020 ISSUED BY THE 1ST RESPONDENT

EXHIBIT P15 A TRUE PHOTOCOPY OF THE REPRESENTATION ADDRESSED TO THE 1ST RESPONDENT DATED 17.9.2020

EXHIBIT P16 A TRUE PHOTOCOPY OF THE REPRESENTATION ADDRESSED TO THE ADVISORY BOARD DATED 17.9.2020

EXHIBIT P17 A TRUE PHOTOCOPY OF THE POSTAL RECEIPT ISSUED FROM THE SP KAYAMKULAM RMS COUNTER DATED 19.9.2020

EXHIBIT P18 A TRUE PHOTOCOPY OF THE ORDER DISPOSING OF THE REPRESENTATION DATED 15.10.2020

EXHIBIT P19 A TRUE PHOTOCOPY OF THE ARGUMENT NOTE SUBMITTED BY THE COUNSEL OF THE DETENU

EXHIBIT P20 A TRUE PHOTOCOPY OF THE POSTAL RECEIPT DATED 1.10.2020

EXHIBIT P21 A TRUE PHOTOCOPY OF THE CONFIRMATION ORDER DATED 14.10.2020