Kerala High Court
Bushara vs State Of Kerala on 31 May, 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 MR. JUSTICE S.MANU
FRIDAY, THE 31ST DAY OF MAY 2024 / 10TH JYAISHTA, 1946
WP(CRL.) NO. 454 OF 2024
PETITIONER :-
BUSHARA, AGED 39 YEARS
W/O MUHAMMED ASHARAF, KUNNAPPALLI, KAYILIAD,
CHALAVARA, PALAKKAD, PIN - 679122
BY ADVS.
M.H.HANIS
P.M.JINIMOL
T.N.LEKSHMI SHANKAR
NANCY MOL P.
ANANDHU P.C.
NEETHU.G.NADH
CIYA E.J.
RESPONDENTS :-
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,
PALAKKAD DISTRICT, PIN - 678001
3 THE DISTRICT POLICE CHIEF
PALAKKAD DISTRICT, PIN - 678001
4 THE CHAIRMAN
ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD,
VIVEKANANDA NAGAR, ELAMAKKARA, PIN - 682006
5 THE SUPERINTENDENT OF JAIL,
CENTRAL JAIL, VIYYUR, PIN - 670004
BY ADVS.
ADVOCATE GENERAL OFFICE KERALA
ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)
WP(CRL.) NO. 454 OF 2024
2
ADDL. STATE PUBLIC PROSECUTOR(AG-28)
SRI.K.A.ANAS, PP
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 31.05.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
WP(CRL.) NO. 454 OF 2024
3
JUDGMENT
S MANU, J
The petitioner is the wife of Sri.Muhammed Ashraf @ Adakka
Asaru. The detenu is 40 years old. He has been detained in Central
Prison, Viyyur in execution of Ext.P1 order dated 08.04.2024 issued
by the 2nd respondent, invoking powers vested with him under the
Kerala Anti-Social Activities (Prevention) Act, 2007.
2. The petitioner has been detained on account of his
involvement in three different cases registered by Cherpulassery
Police Station and Perinthalmanna Police Station. The details of the
cases are as follows :-
1. Crime No.19/2020 of Cherupulassery Police Station
U/s.489(B) and 489(C) r/w 34 of IPC.
2. Crime No.9/2022 of Cherupulassery Excise Range U/s.20(b)
(ii)(B), 60(3), 32(B)(a) of NDPS Act.
3. Crime No.1000/2023 of Perinthalmanna Police Station
U/s.20(b)(ii) C, 29 of NDPS Act.
3. It is to be noted that Crime No.1000/2023 registered on
11.07.2023 is the last prejudicial activity taken into the account by
the Detaining Authority. Though the offence was committed in the
WP(CRL.) NO. 454 OF 2024
said crime on 11.07.2023, the detention order has been issued only
on 08.04.2024 after long lapse of time.
4. During the course of hearing, the learned Public
Prosecutor pointed out that the delay has been explained in Ext.P1
order. He points out that the Detaining Authority has stated that the
detenu is in judicial custody in Crime No.1000/2023 involving the
offence under the NDPS Act and therefore, the probability of his
release on bail is less. Therefore the detaining authority did not
issue the order immediately. The detention order was issued only
when it was felt that the detenu may file bail application after two or
three remand periods. It is also pointed out that the Detaining
Authority has recorded the date of proposal etc and therefore, no
delay is involved and there is proper application of mind by the
Detaining Authority.
5. We are unable to accept the contention raised by the
learned Public Prosecutor. There is a long delay of about 9 months
in passing the order of detention. The explanation in the detention
order is insufficient to satisfy the court about the nexus, which is a
mandatory requirement. In view of the long delay involved, we think
that the objective of detention is defeated in this case and the live
WP(CRL.) NO. 454 OF 2024
link was snapped long ago. Therefore, we are not in a position to
approve the detention. The order of detention is therefore quashed.
The detenu shall be released forthwith, if custody is not required in
any other proceedings. The order shall be communicated to the
Superintendent of Central Prison, Viyyur immediately.
This writ petition is disposed of accordingly.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
S.MANU
JUDGE
SMA
WP(CRL.) NO. 454 OF 2024
APPENDIX OF WP(CRL.) 454/2024
PETITIONER EXHIBITS :-
Exhibit -P1 A TRUE COPY OF ORDER NO. DCPKD/16060/2023-
S1 DATED 08.04.2024 OF THE 2ND RESPONDENT
