Kerala High Court
Noorjahan M vs State Of Kerala on 3 October, 2024
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
2024:KER:73140
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR. JUSTICE G.GIRISH
THURSDAY, THE 3rd DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
WP(CRL.) NO. 947 OF 2024
PETITIONER:
NOORJAHAN M,AGED 55 YEARS
W/O. ALAVI, MOOTHEDATH HOUSE, MUKKATTA, NILAMBUR POST,
MALAPPURAM DISTRICT FOR AND ON BEHALF OF HER SON UNDER
PREVENTIVE DETENTION MOHAMMED HAROON, AGED 28, S/O.
ALAVI, PICHAN MUTHANGATHODI HOUSE, URDU NAGAR, KODUR,
MALAPPURAM DISTRICT, PIN - 679329
BY ADV E.C.AHAMED FAZIL
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO
GOVERNMENT, DEPARTMENT OF HOME AFFAIRS, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, MALAPPURAM
CIVIL STATION, MALAPPURAM, PIN - 676505
3 THE DISTRICT POLICE CHIEF, MALAPPURAM
OFFICE OF THE DISTRICT POLICE CHIEF, UP HILL, MALAPPURAM,
PIN - 676505
4 THE CHAIRMAN, ADVISORY BOARD UNDER KERALA ANTI SOCIAL
ACTIVITIES (PREVENTION) ACT, SREENIVAS, PADAM ROAD,
VIVEKANANDA NAGAR, ELAMAKKARA, ERNAKULAM, PIN - 682026
5 THE SUPERINTENDENT, HIGH SECURITY PRISON, VIYYUR
HIGH SECURITY PRISON, VIYYUR POST, THRISSUR,PIN - 680009
BY ADV.SRI.K.A.ANAZ, SR.PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 03.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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W.P.(Crl) No.947/2024 2
JUDGMENT
G.Girish, J.
Aggrieved by Ext.P4 order dated 12.06.2024 of the District Collector
and District Magistrate, Malappuram under section 3(1) of the Kerala Anti-
Social Activities (Prevention) Act, 2007 [for short 'KAA(P)A'], which was
confirmed by the Government vide Ext.P6 order, in respect of the preventive
detention of the son of the petitioner, the present petition is filed by her
under Article 226 of the Constitution of India for a Writ of Habeas Corpus.
2. Ext.P4 order has been passed by the 2nd respondent (Detaining
Authority) classifying the detenu as a 'known Goonda' on the basis of the
reports dated 10.05.2024 and 28.05.2024 of the District Police Chief,
Malappuram City in respect of the following crimes mentioned in the table
below:
Sl.No Crime No. Offences Present Status
1 279/2018 of u/s 323, 324, Final report filed and the case is
Malappuram 294(b) and 506 now pending trial before the
Police Station IPC Judicial First Class Magistrate
Court-I , Malappuram as C.C No.
2 280/2018 of u/s 323, 324 Final report filed and the case is
Malappuram and 506 IPC now pending trial before the
Police Station Judicial First Class Magistrate
Court-I, Malappuram as C.C
3 906/2020 of u/s 20(b)(II) Final report filed and the case is
Edakkara (B) and Sec.29 now pending trial before the
Police Station of NDPS Act Special (SC/ST (POA) Act &
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NDPS Act Cases) Court, Manjeri
4 657/2021 of u/s 452, 323, Final report filed and the case is
Nilambur 308 and 506 now pending trial before the
Police Station IPC Additional Sessions Court,
5 05/2023 of u/s 22(c) and Final report filed and the case is
Manjeri Excise 29 of NDPS Act now pending trial before the
Range Special (SC/ST (POA) Act &
NDPS Act Cases) Court, Manjeri
6 305/2024 of u/s 341, 323 Final Report Filed
Ponnani Police IPC r/w 34 IPC
Station
3. After analysing the above report of the District Police Chief,
Malappuram and the documents submitted in support of it, the Detaining
Authority came to the conclusion that the preventive detention of the detenu
is highly necessary for the maintenance of public order, and accordingly,
passed Ext.P4 order which was confirmed by the Government on 06.08.2024
directing the preventive detention of the detenu for a period of six months
from the date of detention.
4. Heard Adv.Mr.Ahamed Fazil, the learned counsel for the
petitioner and Adv.Mr. Anaz.K.A, the learned Senior Government Pleader.
5. Ext.P4 order is challenged by the petitioner on the following
grounds:
(i) The Detaining Authority had earlier refused to invoke
preventive detention proceedings against the detenu for the reason that
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there is no chance of the detenu getting enlarged on bail in Manjeri Excise
Range Crime No.5/2023 in connection with the commission of offence under
section 22(c) of the NDPS Act. There is no change of circumstance
thereafter, and hence there is no sufficient reason to pass an order of
detention.
(ii) The last prejudicial activity attributed to the detenu has been
initiated at the instance of an officer of the jail who has to be considered as
a police officer, and hence the embargo contained under Section 2(o)(ii) of
the KAA(P)A will come into operation.
(iii) The last crime registered against the detenu cannot be termed
as one affecting public order. If the above crime is excluded, Crime
No.5/2023 of Manjeri Excise Range Office would become the last prejudicial
activity. In the above case, final report had already been filed on 10.07.2023
and hence there is substantial delay in initiating the preventive detention
proceedings against the detenu.
6. In paragraph No.2 of Ext.P4 order, it is stated that the earlier
recommendations of the District Police Chief, Malappuram on 08.06.2023
for initiating proceedings under KAA(P)A against the detenu, was rejected
on the basis of the finding that there was no chance of the detenu getting
released on bail in the nearby future in view of his detention for the
involvement in Manjeri Excise Range Crime No.5/2023 in connection with
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the commission of the offence under section 22(c) of the NDPS Act. It is
also revealed from Ext.P4 that the final report in the said case had been
filed within five months from the date of commission of the crime, and that
the case is now pending before the Special Court for trial. In contradiction
with the above observation, on the basis of which the earlier
recommendation of the Sponsoring Authority for preventive detention of the
detenu was rejected, it is seen stated in Ext.P4 that there is every chance
of the detenu getting released on bail shortly, and hence the preventive
detention proceedings are necessitated. However, there is absolutely
nothing stated in Ext.P4 order as to the rationale behind the above
conclusion of the Detaining Authority which is totally at variance from its
earlier observation. The fact that the final report in the case registered
against the detenu in respect of the commission of the crime under section
22(c) of the NDPS Act had already been filed within the prescribed period,
and that the said case now stands posted for trial before the Special Court
concerned, would rule out the possibility of the detenu getting released on
bail in view of the legal embargo contained in Section 37 of the NDPS Act.
It is also pertinent to note that the bail application filed by the detenu before
this Court as BA.No.2198/2024 was rejected as per order dated 27.03.2024
with the observation that the detenu who has got criminal antecedents in
connection with the involvement in NDPS offences, cannot be granted bail
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in view of the rigor contained under section 37 of the NDPS Act. The copy
of the aforesaid order of this Court has been placed before us by the learned
counsel for the petitioner.
7. Ext.P4 order has not considered any of the aforesaid aspects
regarding the absence of any possibility of the detenu coming out of the jail.
Instead, it is seen mechanically stated in the said order that there is every
possibility of the detenu getting released from jail after getting bail in the
last crime registered at Ponnani Police Station. Needless to say that the
above anomaly in Ext.P4 order is indicative of the lack of application of mind
of the Detaining Authority in passing the said order.
8. For passing a valid detention order under the preventive
detention law against a person in judicial custody, the following conditions
are to be satisfied:
(i) The Detaining Authority should be aware of the fact that the
detenu is in custody.
(ii) There should be reasons to believe, on the basis of materials
placed, that the detenu is likely to be released on bail, and if
so released, he would in all probability indulge in prejudicial
activity.
(iii) It should be felt essential to detain him in custody to prevent
him from indulging in such prejudicial activities.
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The above requirement of law has been laid down in the following decisions
of the Apex Court:
(a) Kamarunnisa v. Union of India [(1991) 1 SCC 128]
(b) N. Meera Rani v. Government of Tamil Nadu [AIR 1989
SC 2027]
(c) K. Veeramani v. State of Tamil Nadu and Another [1994
SCC (Crl) 482]
(d) Union of India v. Paul Manickam [(2003) 8 SCC 342]
9. As far as the present case is concerned, it is apparent from
Ext.P4 order that the Detaining Authority has not considered any of the
above vital requirements for arriving at a subjective satisfaction about the
necessity to initiate preventive detention proceedings against the detenu.
Needless to say that the order under challenge is liable to be set aside for
the aforesaid reason. The other grounds raised by the petitioner against
the preventive detention need not be discussed in this order since the aspect
relating to non-application of mind of the Detaining Authority which we have
discussed aforesaid, itself is sufficient to grant the relief prayed for by the
petitioner.
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Accordingly, we set aside Ext.P4 order. The detenu is liable to be
released, if his custody is not required in connection with any other cases.
(sd/-)
RAJA VIJAYARAGHAVAN V,
JUDGE
(sd/-)
G.GIRISH,
JUDGE
jsr
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APPENDIX OF WP(CRL.) 947/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE FIRST INFORMATION REPORT IN
CRIME NO. 305 OF 2024 OF PONNANI POLICE
STATION, MALAPPURAM DISTRICT DATED 01.03.2024
Exhibit P2 TRUE COPY OF THE REPORT DATED 21.03.2024
SUBMITTED BY INSPECTOR OF POLICE, PONNANI
POLICE STATION BEFORE JUDICIAL FIRST CLASS
MAGISTRATE COURT, PONNANI IN CONNECTION WITH
CRIME NO.305 OF 2024 OF PONNANI POLICE STATION
Exhibit P3 TRUE COPY OF THE MEMORANDUM OF EVIDENCE DATED
NIL IN CRIME NO. 305 OF 2024 OF PONNANI POLICE
STATION, MALAPPURAM DISTRICT
Exhibit P4 TRUE COPY OF ORDER DATED 12.06.2024 IN
DCMPM/7254/2023-S1 PASSED BY DISTRICT
COLLECTOR AND DISTRICT MAGISTRATE, MALAPPURAM
Exhibit P5 TRUE COPY OF NOTICE DATED 21.06.2024 ISSUED BY
SUB INSPECTOR OF POLICE, PONNANI TO PETITIONER
Exhibit P6 TRUE COPY OF ORDER OF APPROVAL DATED 04.07.2024
HAVING NO. HOME-SSA1/482/2024-HOME ISSUED BY
ADDITIONAL CHIEF SECRETARY, HOME DEPARTMENT,
GOVERNMENT OF KERALA
Exhibit P7 TRUE COPY OF GOVERNMENT ORDER NO. G.O. (RT) NO.
2272/2024/HOME ISSUED BY ADDITIONAL CHIEF
SECRETARY, DEPARTMENT OF HOME AFFAIRS,
GOVERNMENT OF KERALA
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