Kerala High Court
N.P.Shajahan vs State Of Kerala on 22 May, 2024
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
WP(Crl.) NO.231 OF 2024
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR. JUSTICE S.MANU
WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946
WP(CRL.) NO. 231 OF 2024
PETITIONER/S:
N.P.SHAJAHAN
AGED 40 YEARS
S/O ABDUL RAZAK, 21/1535, NOORJAHAN NIVAS, CHAKKUMKADAVU,
VALIYAKAM PARAMBU, KALLAYI P.O, KOZHIKODE, PIN - 673003
BY ADVS.
M.H.HANIS
P.M.JINIMOL
T.N.LEKSHMI SHANKAR
NANCY MOL P.
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,
KANNUR DISTRICT,, PIN - 670002
3 THE DISTRICT POLICE CHIEF,
KANNUR CITY,, PIN - 670002
4 THE CHAIRMAN,
ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD, VIVEKANANDA
WP(Crl.) NO.231 OF 2024
2
NAGAR, ELAMAKKARA,, PIN - 682026
5 THE SUPERINTENDENT OF JAIL,
CENTRAL JAIL, VIYYUR, PIN - 670004
BY SRI.K.A.ANAS, PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
22.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(Crl.) NO.231 OF 2024
3
JUDGMENT
Dated this the 22nd day of May 2024
S.Manu, J.
This writ petition has been filed by a friend of the detenu, Abdul
Rahim P, aged 32 years, s/o Muhammed Koya, Pattarath House,
Pothuvacherry P.O., Kannur, who has been detained pursuant to Ext.P1
order dated 26.06.2023 of the 2nd respondent.
2. The chronology of relevant events shows that the order of
detention was issued on 26.06.2023 and the same was executed on
27.01.2024.
3. Various contentions have been raised in the writ petition. The
respondents 1 and 2 have filed separate counter affidavits refuting the
averments and contentions in the writ petition.
4. We have heard Sri.M.S.Hanis, learned Counsel for the petitioner
and Sri.K.A.Anas, learned Government Pleader.
5. On hearing the learned Counsel for the petitioner and the learned
Government Pleader and perusing the pleadings, we find that it is not
necessary to address all contentions raised in this writ petition, which have
been duly controverted by respondents. We note that the contention raised
by the learned Counsel for the petitioner regarding the delay in execution
WP(Crl.) NO.231 OF 2024
of the order of detention merits consideration. As noted above, the order of
detention was issued on 26.06.2023. The date of execution is 27.01.2024.
Therefore, there is a long time gap of 216 days between the date of
issuance of the order of detention and its execution.
6. The learned Counsel for the petitioner apart from pointing
out the long delay in executing the order of detention, specifically
submitted that the detenu was arrested on 12.01.2024 in Crime
No.362/2023 of Edakkad Police Station and was remanded and while he
was undergoing custody in the said case, Ext.P1 order of detention was
executed on 27.01.2024. Learned Counsel points out that there is a
delay of 15 days in executing Ext.P1, despite the detenu being in
judicial custody. He argued that no specific reasons have been offered
by respondents for the said delay of 15 days in executing the order of
detention after the arrest and remand of the detenu in Crime
No.362/2023.
7. The learned Government Pleader on the other hand
submitted that the delay in executing the detention order has been
properly explained in the counter affidavit filed by the 2nd respondent.
He submitted that the detenu was absconding and various steps were
diligently taken by the concerned authorities as provided under the
KAAPA Act for executing the detention order.
WP(Crl.) NO.231 OF 2024
8. The specific contention of the learned Government Pleader is
that the detenu cannot take advantage of his own mischief and raise a
ground that he is entitled to get the detention set aside on account of
the delay in executing the order of detention. Learned Government
Pleader specifically referred to Paragraph 10 of the counter affidavit filed
by the 2nd respondent.
9. It has been stated in the said paragraph that the detention
order was issued on 26.06.2023 with a direction to the District Police
Chief, Kannur to execute the same. But the said Officer reported on
21.07.2023 that the detenu was absconding and action under Section 6
of KAAPA Act should be initiated. It is further stated that resort to the
provision of Section 6 of the Act was made and a Gazette notification
was published on 25.08.2023 with a direction to the detenu to
surrender before the SHO, Kannur Town Police Station. The said
notification has been produced as Ext.R2(a).
10. Later, on 15.01.2024, the District Police Chief reported that
on 08.01.2024, the detenu assaulted police officials on patrol duty for
which Crime No.16/2024 was registered against him in Edakkad Police
Station and he was arrested on 13.01.2024. The further averments in
Paragraph 10 regarding execution reads as follows.
WP(Crl.) NO.231 OF 2024
'After that, on 29.01.2024, the District Police Chief informed
that detention order was executed and the detenu was arrested by
Inspector SHO, Kannur Town Police Station at 15.15 hrs on
27.01.2024 at Special Sub Jail Kannur, who was already in judicial
custody in Crime No.16/2024 of Edakkad Police Station and detained
in the Central Prison & Correctional Home, Kannur, on the same day
as D No.18/2024 after complying all legal formalities."
11. We agree with the learned Government Pleader regarding
the first limb of his submission that detenu, who was absconding cannot
later claim advantage of the delay in executing the order of detention.
12. We are satisfied that the respondents had taken action as
contemplated under KAAPA Act on realising that the detenu was
absconding. However, it is admitted that the detenu was arrested on
13.01.2024 in connection with Crime registered by Edakkad Police
Station and was in judicial custody from the said date. It is only on
27.01.2024, Ext.P1 detention order was executed and the detenu was
detained after complying the formalities. Therefore, there is a time gap
of about 14 days from the date of arrest of the detenu and the
execution of the detention order.
13. The Hon'ble Supreme Court in Manju Nahar v. Union of India
and others[1999) 4 SC 116 held thus:
"This object can be achieved if the order is immediately executed. If,
however, the authorities or those who are responsible for the execution
WP(Crl.) NO.231 OF 2024
of the order, sleep over the order and do not execute the order against
the person against whom it has been issued, it would reflect upon the
"satisfaction" of the detaining authority and would also be exhibitive of
the fact that the immediate necessity of passing that order was wholly
artificial or non-existent.
14. The mere fact that there was some gap of time in executing
the detention order will not vitiate the detention, if proper explanation is
is offered by respondents for the delay in executing the detention order.
In other words, every delay will not necessarily lead to vitiation of the
detention, if there are sufficient reasons shown for the time taken to
execute the detention order.
15. Here, in the case on hand, we note that no reasons have
been offered by respondents for the delay of about 14 days in executing
the detention order, despite the detenu being in judicial custody. It is
not discernable from the counter affidavit filed by the 2 nd respondent as
to when the learned jurisdictional Magistrate was approached with an
application for permission to execute Ext.P1 order of detention. It is also
not stated as to when such permission was obtained and as to why a
period of about two weeks was required for executing the detention
order.
16. For the reasons stated in the previous paragraphs, we are of
the view that the delay in executing the order of detention after the
WP(Crl.) NO.231 OF 2024
arrest of the detenu by Edakkad Police has not been properly explained
by the respondents. Therefore, the only conclusion that can be arrived
at is that the detention is vitiated on account of the unexplained delay
in executing the order of detention.
17. In view of our findings as above on the issue of delay in
executing the order of detention after the arrest of the detenu in the
Crime registered by Edakkad Police Station, we need not consider the
other contentions raised in the writ petition.
18. In the result, the detention of the detenu is declared as
vitiated on account of the delay in executing the order of detention. We
direct that the detenu shall be released forth with, if his detention is not
required in any other legal proceedings.
Registry is directed to communicate this order forthwith to the
Superintendent of Central Prison, Viyyur. Sd/
A.MUHAMED MUSTAQUE, JUDGE
sd/
S.MANU, JUDGE
jm/
WP(Crl.) NO.231 OF 2024
APPENDIX OF WP(CRL.) 231/2024
PETITIONER EXHIBITS
Exhibit -P1 A TRUE COPY OF THE ORDER NO.DCKNR/7507/2023/SS1
DATED 26.06.2023 OF THE 2ND RESPONDENT
RESPONDENT EXHIBITS
EXHIBIT R2(a) True copy of Gazette notification dated
25.8.2023
EXHIBIT R2(b) True copy of the FIR in Crime No.16/2024 of
Edakkad Police Station
