Kerala High Court
Prabhulla P vs State Of Kerala on 3 January, 2024
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
WEDNESDAY, THE 3RD DAY OF JANUARY 2024 / 13TH POUSHA, 1945
WP(CRL.) NO. 852 OF 2023
PETITIONER/S:
PRABHULLA P
AGED 32 YEARS
W/O DILEEP KUMAR, VRINDHAVANAM, EDAVANPARAMBU,
KOTTUKUNNAM P.O, THIRUVANANTHAPURAM, PIN - 695606
BY ADVS.
M.H.HANIS
P.M.JINIMOL
T.N.LEKSHMI SHANKAR
ANANDHU P.C.
NEETHU.G.NADH
CIYA E.J.
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT, HOME AND VIGILANCE DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM,, PIN - 695001
2 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE
THIRUVANANTHAPURAM DISTRICT,, PIN - 695043
3 THE DISTRICT POLICE CHIEF
THIRUVANANTHAPURAM RURAL, PIN - 695033
4 THE CHAIRMAN
ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD,
VIVEKANANDA NAGAR, ELAMAKKARA, PIN - 682026
5 THE SUPERINTENDENT OF JAIL,
CENTRAL JAIL, VIYYUR, PIN - 670004
PUBLIC PROSECUTOR, ADV. K.A.ANAS
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
03.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(CRL.) NO. 852 OF 2023
2
JUDGMENT
Dated this the 3rd day of January, 2024
A.MUHAMED MUSTAQUE (J)
The issue in this writ petition is whether detention
order can be passed under Section 12 of the Kerala Anti-
Social Activities (Prevention) Act, 2007 (hereinafter
referred to as "the KAAPA") detaining a person beyond six
months in a case where such a detenu suffered detention
prior to the amendment to Section 12.
2. Admittedly, the detenu was detained invoking
provision of the KAAPA in the year 2009. Before the
amendment, the Section 12 reads thus:
"12. Maximum period of detention .-The maximum
period for which any person may be detained in
pursuance of any detention order made under this Act,
which has been confirmed under Section 10, shall not
exceed six months from the date of detention."
3. On 31.12.2014, amendment was brought into Section
WP(CRL.) NO. 852 OF 2023
12 of the KAAPA, which reads thus:
["12. Maximum period of detention - In pursuance of
the first detention order made against any person
under this Act and confirmed under Section 10, he may
be detained for a period which may extend upto six
months from the date of the detention and in
pursuance of such subsequent detention order made
against such person, he may be detained for a period
which may extend up to a maximum of one year.]
4. Learned Counsel for the petitioner submitted
that, based on amendment under Section 13 of the Narcotic
Drugs and Psychotropic Substances Act, the detenu cannot
be detained by operation of amended provision for a period
of one year, in view of the fact that the earlier
detention was suffered by him, was based on un-amended
provision under Section 12 of the KAAPA. This is a legal
contention in this case.
5. The detention order is in the nature of depriving
liberty of a person. Statutory provision will have to be
construed strictly in that sense. Section 12 of the KAAPA
would operate only prospectively in regard to the period
WP(CRL.) NO. 852 OF 2023
of detention. In the sense, the first detention order
must have been after 31.12.2014, that means earlier
detention order prior to 31.12.2014, cannot be taken into
account for passing a detention order for a maximum period
of one year.
6. Admittedly in this case, earlier detention order
was in the year 2009, that cannot be taken into account
for imposing maximum one year detention after 31.12.2014.
There is no embargo under the law to detain such persons,
who was detained prior to 31.12.2014 for a period of six
months. In this case, the detenu is under detention
since 03.05.2023.
7. The last prejudicial activity was committed by the
detenu on 15.11.2022 and he was arrested on the same day.
He was released on 01.03.2023. The final report in Crime
No.1483/2022 was filed on 20.06.2023. The preliminary
report was filed by the Station House Officer on
22.12.2022. The District Police Chief, Thiruvanathapuram
Rural submitted the report before the Detaining Authroity
on 13.01.2023 and the order was issued only on 10.04.2023.
WP(CRL.) NO. 852 OF 2023
Absolutely there is no explanation for the considerable
delay of five months in passing the detention order.
In such circumstances, we are of the view that the
livelink between the last prejudicial activity and the
detention order has been snapped. Accordingly, the impuged
order is set aside. The petitioner is ordered to be
released forthwith, if it is not otherwise required under
law.
The Writ Petition is disposed of accordingly.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
RK
WP(CRL.) NO. 852 OF 2023
APPENDIX OF WP(CRL.) 852/2023
PETITIONER EXHIBITS
Exhibit P1 THE ORIGINAL COPY OF ORDER NO.
DCTVM/921/2023-S13 DATED 10.04.2023 OF
THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE ORDER NO.G.O.(RT).
NO. 1723/2023 DATED 30.06.2023 OF THE
1ST RESPONDENT
