Kerala High Court
Ananthu Prasannan vs State Of Kerala on 1 August, 2024
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR. JUSTICE G.GIRISH
THURSDAY, THE 1ST DAY OF AUGUST 2024 / 10TH SRAVANA, 1946
WP(CRL.) NO. 648 OF 2024
PETITIONER:
ANANTHU PRASANNAN
AGED 29 YEARS
S/O PRASANNAN, ATHIRA BHAVAN HOUSE, POOVANTHURUTH BHAGAM,
POOVANTHURUTH KARA, PANACHIKKAD VILLAGE, KOTTAYAM DISTRICT,
PIN - 686012.
BY ADV AJEESH M UMMER
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031.
2 THE DEPUTY INSPECTOR GENERAL OF POLICE
ERNAKULAM RANGE, ERNAKULAM, PIN - 682031.
3 DISTRICT POLICE CHIEF
KOTTAYAM COLLECTORATE, KOTTAYAM, PIN - 683101.
4 STATION HOUSE OFFICER
KOTTAYAM EAST POLICE STATION ,KOTTAYAM., PIN - 686002.
5 THE SECRETARY
ADVISORY BOARD, KAA(P)A, SREENIVAS, PADAM ROAD,
VIVEKANANDA NAGAR, ELAMAKKARA., PIN - 682026.
BY ADV.
K.A ANAZ, PP
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
01.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(CRL.) NO. 648 OF 2024 2
JUDGMENT
Raja Vijayaraghavan, J.
This writ petition is instituted challenging Ext.P1 order issued under
Section 15(1)(a) of the Kerala Anti Social Activities (Prevention) Act, 2007
('KAAPA' for brevity) by the 2nd respondent interdicting the movement and
entry of the petitioner into the limits of Kottayam District for a period of nine
months. The petitioner has also challenged Ext.P4 order issued by the
Advisory Board while disposing of the representation submitted by him. The
Advisory Board has reduced the period of externment to seven months
subject to certain conditions.
2. In the writ petition, the petitioner asserts that in order to
initiate proceedings against him, he has been classified as a 'known goonda'
as defined under Section 2(o)(iii) of the KAAPA. According to him, all the
seven cases registered against him are frivolous and he has been falsely
implicated. It is contended that the petitioner, being aggrieved by the
persistent harassment by the police, had approached this Court and filed
W.P.(C) No. 20961/2022 and by Ext.P5 judgment, this Court had directed
the police authorities not to harass him without giving notice as stipulated
under law. According to the petitioner, proceedings under Section 107 have
been initiated against him and he has executed a bond and the same ought
to have been treated as sufficient deterrent. He would further state that
there is a long, inordinate, and unexplained delay from the last prejudicial
act and Ext.P1 order, and in that view of the matter, it cannot be said that
there is any immediate need to curtail the movements of the petitioner.
3. Sri. Ajeesh M Ummer, the learned counsel appearing for the
petitioner would invite the attention of this Court to the various crimes
referred to by the authorities to classify him as a known goonda. It is
submitted that Crime No. 2751 of 2018 and Crime No. 90 of 2024 involve
only minor offences and those cases cannot be regarded as acts that would
be prejudicial to the maintenance of public order. He would point out that in
all the cases, the petitioner has been falsely implicated by the police. He
would point out that the last crime was registered on 15.1.2024, but the
impugned order was passed only on 24.4.2024. According to the learned
counsel, the long delay that has occurred in passing the order has not been
properly explained. Relying on the law laid down by this Court in Asker Ali
v. State of Kerala1, it is pointed out that in the said case, this Court had
held that even a delay of five weeks on the part of the sponsoring authority
which is unexplained would destroy the live link between the last prejudicial
activity and thereby the purposes of the externment order would get
snapped. The learned counsel has also referred to the judgment of a
Division Bench of this Court in W.P.(Crl) No.313 of 2023 and it is urged that
the failure on the part of the respondents in properly explaining the delay in
[2022 KHC 998]
passing the externment order would vitiate the order. The learned counsel
would also submit that insofar as Crime Nos.3028/2023 and 4094/2023
which are registered under the NDPS Act are concerned, the specific case of
the petitioner was that he was falsely implicated for which complaints have
been lodged before the higher authorities. It is further submitted that in all
the seven cases in which the detenu has been involved, the final report has
already been laid and in that view of the matter, the justification offered by
the authorities in the order of detention that some time was required for
collating the documents cannot be sustained.
4. In response, it is submitted by the learned Public Prosecutor
that the contentions raised by the petitioner are meritless. He would point
out that the initial proposal was submitted by the Station House Officer on
8.3.2024. Based on the aforesaid report, a proposal dated 25.3.2024 was
forwarded by the Superintendent of Police. Immediately thereafter, a show
cause notice was issued to the detenu on 2.4.2024 which was accepted on
12.4.2024. The detenu was asked to furnish his response on or before
19.4.2024. In response, a reply was given by the detenu on 19.4.2024. A
notice was also issued to the detenu on 17.4.2024 to appear for a personal
hearing on 22.4.2024. On the said day, the detenu appeared and furnished
his explanation. It is in pursuance to the same that the impugned order was
passed under Section 15(2) of the Act on 24.4.2024 restricting the
movements of the detenu and the order was served on him on 25.4.2024.
In terms of Section 15(2) of the Act, the detenu submitted a representation
to the Advisory Board. The Advisory Board by Ext.P4 order interfered with
the order of externment and reduced the period to seven months. It is
submitted that there is no undue delay in passing the order and for the
minimal delay, proper explanation has been submitted. It is further
submitted that the assertion that the petitioner was falsely implicated in all
the cases cannot be sustained.
5. We have examined the arguments advanced before us and
have gone through the records. The details of the crimes in which the
petitioner got himself involved are as under:
Sl. Crime No. Police Offences Date of Final Present
No. Station involved Under Occurrence Report u/s status of the
Sections 173 Cr.p.c case
1 2751/2018 Chingavanam U/s 323, 324, 34 30.12.2018 5.1.2019 pending trial
IPC
2 2129/2021 Kottayam East U/s 511, 436, 427, 4.9.2021 10.6.2022 -do-
34 IPC
3 2491/2022 Chingavanam U/s 294(b), 323 8.12.2022 28.1.2023 -do-
,324, 308, 506(i),
212, 34 IPC
4 2511/2022 Chingavanam U/s330, 342, 348, 9.10.2022 17.4.2022 -do-
363, 365, 294(b),
506(i), 34 IPC
5 1328/2023 Vaikom U/s 20(b)(ii)(A) 6.8.2023 25.8.2023 -do-
22(a)25,29 of NDPS
Act
6 1494/2023 Gandhinagar U/s20(b)(ii)(B) 25, 25.9.2023 18.12.2023 -do-
29 of NDPS Act
7 90/2024 Ettumanoor U/s 294(b), 341, 12.1.2024 20.2.2024 -do-
506, 34 IPC
6. We find that the petitioner has been classified as a 'known
goonda' on account of his involvement in seven crimes. It appears that the
final report has been laid in almost all cases. In that view of the matter, the
objective satisfaction arrived at by the authority to classify the petitioner as
a 'known goonda' is clearly based on the qualification acquired by the
petitioner on account of his involvement in anti-social activities. It would
not be possible for the authority or for the court to ascertain at this stage as
to whether the petitioner is innocent of all crimes or whether the cases have
been falsely instituted. As to whether the cases registered against the
petitioner will end in acquittal based on the evaluation of the materials is an
exercise that cannot be carried out by the authority while passing the order.
As held by this Court in Binoy v State of Kerala2, the initiation of
proceedings under Section 15 is an anticipatory action to prevent
apprehended objectionable activities and conduct injurious to the society.
The object is not to punish a person after evaluating legal evidence, but it is
only a precautionary measure for the protection of society by the authority
concerned. The objective satisfaction arrived at by the authority cannot
therefore be faulted.
7. The next contention of the petitioner is that there is a long
and inordinate delay between the last prejudicial act and the order of
externment. In Stalin C.V. v. State of Kerala and Ors.3, a Division
2018 (1) KHC 348
[ 2011 (1) KHC 852]
Bench of this Court had occasion to consider the delay on the part of the
competent authority in initiating proceedings under Section 15 of the Act
and its impact on the live link required for the purpose of initiating action.
This Court, while comparing the provisions under Section 3 which enables
the authority to pass an order of detention, and Section 15 which deals with
externment held that the order under Section 15 of the Act though visits the
person with deprivation of liberty, is of a lesser magnitude when compared
to Section 3 of the Act. It was observed that before passing an order of
restriction under Section 15, it is mandatory for the authority concerned to
observe the principles of natural justice. The officer is required to issue a
show cause notice and afford an opportunity of being heard to the person
against whom the order is proposed to be issued. This obviously would
consume time. It was held that Section 15, apart from allowing the officer to
delve into the past, permits him to hypothesize about what the 'known
goonda' or the 'known rowdy' is likely to do in the immediate future, having
regard to the words 'about to indulge'. This Court also observed that an
order of restriction cannot be passed under Section 15 of the Act if the
act/acts which are complained of have completely lost their relevance by the
passage of time, giving rise to a total absence of any nexus. However, an
order of restriction under Section 15 is lighter in its impact on the personal
liberty of the person concerned and its effect is only in the nature of a
condition attached to a bail order. In the case on hand, the last prejudicial
activity was on 12.1.2024 and the externment order was passed on
24.4.2024 after providing an opportunity to the petitioner to furnish his
explanation and after granting him an opportunity for personal hearing. We
also find that in the order, the authority has clearly mentioned the reasons
for the delay and has reiterated that there exists a live link with the last
prejudicial act. In the facts and circumstances, we cannot agree with the
learned counsel that the live link between the last prejudicial act and the
order of restriction has got snapped owing to the delay as projected in the
petition.
8. On a perusal of the order, we find that the authority has
recorded its subjective satisfaction for the imposition of the restriction order.
It is well settled that subjective satisfaction entertained by the authority is
not justiciable. This Court does not sit in appeal in proceedings under Article
226 of the Constitution of India over the decisions taken by the authority on
the basis of the materials placed before the authority for initiation of
proceedings. The short area of jurisdiction is to ascertain whether subjective
satisfaction is entertained properly on the basis of materials placed before
the authority. If the entertainment of the latter subjective satisfaction is
vitiated by mala fides or by the total absence of materials or by reference to
and reliance on materials which cannot legally be taken note of, certainly the
powers of judicial review vested in this Court can be invoked and the order
of detention on the basis of such alleged subjective satisfaction can be set
aside. But, certainly, if there are materials, it is not open to this Court to sit
in appeal over the subjective satisfaction entertained by the authority. (See:
Ibrahim Bachu Bafan and Another v. State of Gujarat and
Another4).
9. We have also perused the order dated 24.04.2024. The
authority has documented all crimes, the initiation of 107 proceedings
against the petitioner, involvement in crimes in spite of stringent bail
conditions, and the reasons which persuaded the authority to exercise the
power conferred under the Statute. We do not think that the subjective
satisfaction is vitiated by mala fides or by the total absence of materials or
by reference to and reliance on materials that cannot legally be taken note
of. Based on the externee's past and current conduct and the available
materials, the authority concluded that an order under Section 15(1) of the
KAAPA was necessary to prevent the petitioner from engaging in anti-social
activities as defined by the Act. The Advisory Board, after thoroughly
re-considering the matter, has reduced the period of externment while
imposing appropriate conditions.
10. In Benoy @ Gillappi v. State of Kerala and Ors5., this
Court had held as follows in paragraph No. 17 of the judgment:
[1985 (2) SCC 24)]
[2018 (1) KHC 348]
KAAPA is enacted to prevent as well to have effective control over
anti-social activities of persons indulged in such activities, to protect the
community or the public at large free from threat or danger by the
unruly behavior of such persons. The order was passed to avoid the
presence of the petitioner at a place he is having acquaintance and the
imperative need to restrict his movement in the area for the welfare of
the society at large is abundantly clear from the records and that such a
decision was taken by the authority based on the antecedents or past
conducts of the petitioner in the wake of the surrounding
circumstances. As the prime intention of the Act is to prevent or control
anti - social activities by such persons who fall within the sweep of
'Known goonda' or 'Known rowdy', for the safety of the public, the
authority is vested with power to take tough and stringent decisions
giving utmost importance to the welfare of society than the private right
of an individual, restricting his free movements in particular and
specified areas to intercept him before he commits further unlawful acts
as an anticipatory measure.
11. We are of the view that the petitioner has not made out any
case for interference.
This Writ Petition is dismissed.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
Sd/-
G.GIRISH
JUDGE
sru
APPENDIX OF WP(CRL.) 648/2024
PETITIONER'S EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER NO. KAAPA-6022/2024/ER
DATED 24.04.2024.
Exhibit P2 A TRUE COPY OF THE PROPOSAL WITH DOCUMENTS
ATTACHED TO IT DATED 25.03.2024.
Exhibit P3 A TRUE COPY OF THE REPLY GIVEN BY THE
PETITIONER HEREIN DATED 18.04.2024.
Exhibit P4 A TRUE COPY OF THE ORDER ISSUED BY ADVISORY
BOARD, KERALA ANTISOCIAL ACTIVITIES
(PREVENTION) ACT DATED 07.06.2024.
Exhibit P5 A TRUE COPY OF THE JUDGMENT IN W.P. (C) NO.
20961/2022 DATED 25.07.2022 BY THIS HONOURABLE
COURT.
Exhibit P6 A TRUE COPY OF THE PETITION AND THE RECEIPT
GIVEN BY THE OFFICE OF DISTRICT POLICE CHIEF BY
RECEIVING THE PETITION DATED 17.08.2023.
Exhibit P7 A TRUE COPY OF THE FIR OF THE CRIME NO. 86/2024
ETTUMANOOR POLICE STATION DATED 14.01.2024.
Exhibit P8 A TRUE COPY OF THE MEDICAL DOCUMENT DATED
03.04.2024.
