Kerala High Court
Remani P.D vs State Of Kerala, Rep By Additional ... on 12 April, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
WEDNESDAY, THE 12TH DAY OF APRIL 2023 / 22ND CHAITHRA, 1945
WP(CRL.) NO. 209 OF 2023
PETITIONER:
REMANI P.D
AGED 55 YEARS
W/O ANIRUDHAN, NIVARTHIL VEEDU, WARD-11,
KADAKKARAPPALLY PANCHAYATH,
THYCKAL P.O, ALAPPUZHA, PIN - 688530
BY ADVS.
M.A.SULFIA
ABDUL JALEEL.A
RESPONDENTS:
1 STATE OF KERALA, REP BY ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT (HOME & VIGILANCE)
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 THE DISTRICT MAGISTRATE AND DISTRICT COLLECTOR
ALAPPUZHA, PIN - 688001
3 THE DISTRICT POLICE SUPERINTENDENT
ALAPPUZHA, PIN - 688505
OTHER PRESENT:
SRI. K.A.ANAS-GP
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
12.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ALEXANDER THOMAS & C. JAYACHANDRAN, JJ.
=====================================
W.P.(Crl.)No. 209 of 2023
====================================
Dated this the 12th day of April, 2023
JUDGMENT
C. Jayachandran, J.
Ext.P1 detention order issued against the petitioner's son under
Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act,
2007 ('KAA(P)A' for short) is under challenge in this writ petition.
As per Ext.P1, the petitioner's son was found to be a 'known rowdy' as
defined in Section 2(p)(iii) of the KAA(P)A and he was directed to be
detained for a period of six months as per Ext.P2 order, confirming
Ext.P1 order of detention.
2. Heard Smt.Sulfia, learned counsel for the petitioner and
Sri.K.A.Anas, learned Government Pleader attached to the Office of
the Advocate General. Perused the records.
3. Although several grounds are raised in the writ petition
challenging Ext.P1, the specific ground which was urged and pressed
before us is the delay between the last prejudicial activity and Ext.P1
order, which, according to the learned counsel for the petitioner,
W.P.(Crl.)No.209 of 2023
would snap the live link between the last crime and the impugned
action for preventive detention. The learned counsel specifically
pointed out that no reason, whatsoever, is stated for the delay in
Ext.P1 order. The reason for delay, as propounded in paragraph
no.14 of the counter affidavit of the 1 st respondent, was attacked on
two grounds. Firstly, a matter touching the application of mind of the
Detaining Authority cannot be supplemented by virtue of the
contentions in the counter affidavit; instead, the same should be
reflected in the order impugned. Secondly, it was pointed out that
the delay was not, in fact, explained, except referring to certain dates
with respect to the events, which are relevant within the statutory
frame work of KAA(P)A.
4. Refuting the above submissions, the learned Government
Pleader would maintain that the delay of 3 months and 27 days
between the last prejudicial activity/last crime and the date of Ext.P1
order of detention stands fully explained. The learned Government
Pleader pointed out that the incident, which led to the registration of
Crime no.489/2022 of Pattanakkadu Police Station, i.e., the last
prejudicial activity, was on 8.7.2022. The First Information Report
W.P.(Crl.)No.209 of 2023
was registered and the accused/detenu was arrested on 9.7.2022. On
16.7.2022, the S.H.O. of Pattanakkadu Police Station preferred the
first report to the Dy.S.P. concerned for initiating action against the
detenu under the KAA(P)A. On 2.8.2022, the detenu was enlarged
on bail in the last crime. On 4.8.2022, the Sponsoring Authority
(District Police Chief) gave recommendation to the District
Magistrate. However, in the said report the detenu was stated to be
in judicial custody, presumably for the reason that the District Police
Chief was not made aware of the release of the detenu on 2.8.2022.
Incorporating the factum of filing of final report, as also the release of
the detenu on bail, the Sponsoring Authority preferred a second
report to the District Magistrate on 3.10.2022. After considering all
factual aspects in detail, Ext.P1 order was passed on 4.11.2022.
According to the learned Government Pleader, the above narrated
incidents would explain the delay of three months and twenty seven
days. The decision of this Court in Anita Antony v. State of
Kerala and others [2022 (4) KHC 427] was relied upon by the
learned Government Pleader to contend that a delay to the extent of
195 days has been held to have not vitiated the detention order,
wherefore, the instant delay of 117 days is also liable to be condoned.
W.P.(Crl.)No.209 of 2023
5. Having heard the learned counsel appearing on both sides, we
cannot endorse the submissions made by the learned Government
Pleader. Primarily, we are in agreement with the contention of the
learned counsel for the petitioner that an explanation for delay, if
any, should form part and parcel of the order impugned and the same
cannot be supplemented by virtue of a counter affidavit. In the
instant case, Ext.P1 order contains no explanation for the delay of 3
months and 27 days. Although the learned Government Pleader
invited the attention of this Court to paragraph no.30 of the
impugned order, we are not in the least satisfied that the contents of
paragraph no.30 would constitute any explanation for the delay.
6. Secondly, we notice that there is inordinate delay on the part of
the Sponsoring Authority in preferring the additional report to the
District Magistrate, incorporating the factum of filing of final report,
as also, the grant of bail to the detenu in the last crime. Bail was
granted to the detenu on 2.8.2022, whereas additional report was
filed only on 3.10.2022. There is a delay of more than two months.
In this context, we may also notice that the two aspects incorporated
in the additional report were not strictly essential to finalise the
W.P.(Crl.)No.209 of 2023
proceedings under the KAA(P)A against the detenu. It requires to be
noticed that the last crime reckoned was the fifth crime registered
against the detenu, whereas the statutory requirements, in terms of
KAA(P)A, is only three crimes. The factum of grant of bail is
significant only to the extent of correcting a mistake, which crept into
the original recommendation of the Sponsoring Authority dated
4.8.2022. The factum of filing of final report is also not very relevant,
in view of the authoritative pronouncement of the Full Bench in
Stenny Aleyamma Saju v. State of Kerala [2017 (3) KHC 517].
In short, the time consumed for filing the additional report dated
3.10.2022 cannot be harped on to explain the delay between the last
prejudicial activity and the date of Ext.P1 detention order.
7. Further, there is a delay of more than a month in issuing Ext.P1
order, even reckoned from the date of the additional report, i.e.,
3.10.2022, which again is also not explained at all. The explanation
offered in paragraph no.14 of the counter affidavit is also not
satisfactory, dehors and independent of the fact that such
explanation, offered through a counter affidavit, cannot imply due
application of mind by the Detaining Authority. We may further
W.P.(Crl.)No.209 of 2023
observe that the issue of live link between the last prejudicial activity
and the date of the detention order is very much an aspect which
comes within the realm of the 'subjective satisfaction' of the detaining
authority in taking an ultimate call as to whether the preventive
detention of the detenu is strictly necessary or not.
8. We may fortify our view by relying upon a recent three Judge
Bench decision of the Hon'ble Supreme Court in Sushanta Kumar
Banik v. State of Tripura and others [2022 SCC OnLine SC
1333]. The Hon'ble Supreme Court frowned upon a delay of almost
five months in issuing the detention order. Paragraph no.21 of the
judgment is relevant to the context and extracted hereunder:
"21. It is manifestly clear from a conspectus of the above
decisions of this Court, that the underlying principle is
that if there is unreasonable delay between the date of the
order of detention & actual arrest of the detenu and in the
same manner from the date of the proposal and passing
of the order of detention, such delay unless satisfactorily
explained throws a considerable doubt on the genuineness
of the requisite subjective satisfaction of the detaining
authority in passing the detention order and consequently
render the detention order bad and invalid because the
"live and proximate link" between the grounds of
detention and the purpose of detention is snapped in
W.P.(Crl.)No.209 of 2023
arresting the detenu. A question whether the delay is
unreasonable and stands unexplained depends on the
facts and circumstances of each case."
In the result, we allow this writ petition by quashing Ext.P1
detention order, with the result that Ext.P2 order of confirmation
also becomes illegal. The detenu shall be set at liberty forthwith. The
Registry is directed to communicate a copy of this order to the
Superintendent, Central Jail, Viyyur, with a direction to release the
detenu forthwith, in case his detention is not required in connection
with any other crime.
Sd/-
ALEXANDER THOMAS,
JUDGE
Sd/-
C. JAYACHANDRAN
JUDGE
skj
W.P.(Crl.)No.209 of 2023
APPENDIX OF WP(CRL.) 209/2023
PETITIONER'S EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER OF DETENTION
NO. SC6/362516/2022 OF DISTRICT
MAGISTRATE, ALAPPUZHA DATED 04.11.2022
Exhibit P2 THE TRUE COPY OF THE ORDER OF
GOVERNMENT, CONFIRMING DETENTION VIA G.O
(Rt) NO 150/2023/HOME DATED 20/01/2023
PASSED UNDER SECTION 10(4) OF KERALA
ANTI-SOCIAL ACTIVITIES (PREVENTION) ACT,
Exhibit P3 THE TRUE COPY OF THE FINAL REPORT IN
CRIME NO 488/2022 OF PATTANAKKAD POLICE
STATION
Exhibit P4 THE TRUE COPY OF THE FINAL REPORT IN
CRIME NO 489/2022 OF PATTANAKKAD POLICE
STATION
Exhibit P5 THE TRUE COPY OF THE FINAL REPORT IN
CRIME NO 278/2022 OF PATTANAKKAD POLICE
STATION ALONG WITH THE STATEMENT OF THE
DE FACTO COMPLAINANT
