Kerala High Court
Shailabi. V vs State Of Kerala on 7 August, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:59641
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
THURSDAY, THE 7TH DAY OF AUGUST 2025 / 16TH SRAVANA, 1947
WP(CRL.) NO. 765 OF 2025
PETITIONER:
SHAILABI. V.
AGED 27 YEARS
W/O. ISHACK K. K., KOLIKKALAKATH, PANDARA
KADAPPURAM, TANUR P.O., MALAPPURAM, PIN - 676302
BY ADVS.
SRI.RENJITH B.MARAR
SMT.LAKSHMI.N.KAIMAL
SRI.P.RAJKUMAR
SRI.KESHAVRAJ NAIR
SHRI.BIJU VIGNESWAR
SHRI.ARUN POOMULLI
SHRI.ABHIRAM.S.
SMT.GAADHA SURESH
SRI.T.K.BABU
SHRI.VISWANATH JAYAN
SMT.AKHILA RADHAKRISHNAN
SMT.SARIGA RAMACHANDRAN M.
SHRI.AKSHAY SHIBU
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE ADDITIONAL CHIEF SECRETARY
HOME DEPARTMENT, THIRUVANANTHAPURAM, PIN - 695001
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3 THE DISTRICT COLLECTOR AND THE DISTRICT
MAGISTRATE
COLLECTORATE, MALAPPURAM, PIN - 676505
4 THE DISTRICT POLICE CHIEF
DISTRICT POLICE OFFICE, DPO RD, UP HILL,
MALAPPURAM, KERALA, PIN - 676505
BY ADVS.
SRI.K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 07.08.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
This writ petition has been directed against an order of
detention dated 20.03.2025 passed against one Ishack K.K. under
Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act,
2007 ('KAA(P) Act' for brevity). The petitioner herein is the wife of
the detenu. The detention order stands confirmed by the
Government vide order dated 26.05.2025, and the detenu has been
ordered to be detained for a period of six months from the date of
detention.
2. The records available before us disclose that a proposal
was submitted by the District Police Chief, Malappuram, on
13.02.2025 seeking initiation of proceedings under Section 3(1) of
the KAA(P) Act before the jurisdictional authority. For the purpose
of initiation of the said proceedings, the detenu was classified as a
'known rowdy' as defined under Section 2p(iii) of the KAA(P) Act.
For passing the order of detention the authority reckoned nine
cases in which the detenu got involved. Out of the said cases, the
case registered with respect to the last prejudicial activity is crime
No.1246/2024 of Thrissur East Police Station alleging commission
of offences punishable under Sections 311, 310(2),, 61(2), 238, and
249 of Bharathiya Nyaya Sanhita (for short "BNS").
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3. We have heard Sri.Renjith B. Marar, the learned counsel
appearing for the petitioner and Sri. K.A. Anas, the learned
Government Pleader.
4. The learned counsel for the petitioner would submit that
the impugned order is vitiated, as the same has been passed
without proper application of mind and in disregard of the
procedural safeguards envisaged under the KAA(P) Act. According
to the counsel, there is inordinate delay in mooting the proposal by
the sponsoring authority and as well as in passing the impugned
order by the competent authority after the last prejudicial activity
rendering the live link between the last prejudicial activity and the
purpose of detention snapped. The learned counsel urged that, if
the sponsoring authority was having any bonafide apprehension
regarding the repetition of criminal activities by the detenu, the
authority would have acted swiftly in making the proposal for
initiation of proceedings under KAA(P) Act. Hence, the impugned
order warrants interference on the ground of delay and is liable to
be set aside.
5. In response, Sri. K.A. Anas, the learned Government
Pleader, asserted that there is no unreasonable delay either in
submitting the proposal or in passing Ext.P1 detention order after
the last prejudicial activity. However, some minimal delay is
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inevitable while passing a detention order, especially when it is the
duty of the authority to ensure adherence to the natural justice
principles while passing such an order. Moreover, a reasonable
time would be necessary for collecting the details of the cases in
which the detenu is involved, and minimal delay in mooting the
proposal and passing the order is quite natural and hence
justifiable. According to the learned Government Pleader, the
detaining authority passed Ext.P1 order after arriving at the
requisite objective as well as subjective satisfaction, and no
interference is warranted.
6. We have carefully considered the submissions advanced
and have perused the records.
7. The records show that the detenu was classified as a
"known rowdy", considering his recurrent involvement in nine
cases. While considering the contention of the petitioner, regarding
the delay that occurred in submitting the proposal for detention
and in passing the order, it cannot be ignored that an order under
Section 3(1) of KAA(P) Act has a significant impact on the personal
as well as fundamental rights of an individual. So such an order
could not be passed in a casual manner instead it can only be
passed on credible materials after arriving at the requisite
objective and subjective satisfaction. Furthermore, there exists no
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inflexible rule requiring a detention order to be issued within a
specific time frame following the last prejudicial act. However,
when there is undue delay in making the proposal and passing the
detention order, the same would undermine its validity, particularly
when no convincing or plausible explanation is offered for the
delay.
8. Keeping in mind the above, while coming to the facts in
the present case, it can be seen that the case registered against
the detenu with respect to the last prejudicial activity is crime
No.1246/2024 of Thrissur East Police Station. The last prejudicial
activity was committed on 23.07.2024. From the records it is
evident that after the commission of the said crime, the accused
absconded and he was subsequently arrested only on 07.01.2025.
The records further reveal that the District Police Chief,
Malappuram, submitted the proposal to the competent authority
for initiation of proceedings under Section 3(1) of the KAA(P) Act
only on 13.02.2025. Therefore, it is evident that there is a delay of
more than six and half months in submitting the proposal after the
commission of the last prejudicial activity. The said delay cannot be
justified as necessary for observing natural justice principles.
9. Curiously, in the impugned order itself it is admitted
that there occurred some delay in mooting the proposal. The
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reason for the said delay shown in the impugned order is that
additional time was required to collect the details of the cases in
which the detenu was involved. In the case at hand, nine cases
formed the basis for proposing and issuing the detention order. The
details of those cases were readily available and could have been
obtained without delay, given the technological upgradation
attained by the law enforcement authority. Therefore, the
explanation that additional time was required to collect the details
of the cases in which the detenu is involved is not justifiable.
Though it is true that the detenu was absconding after the
commission of the last prejudicial activity, there is no legal
impediment in initiating proceedings under KAA(P) Act against an
accused who had absconded after the last prejudicial activity. On
the other hand, when the accused is neither apprehended nor in
custody in connection with the last prejudicial activity the
sponsoring authority should have been more vigilant to take quick
action to initiate proceedings under KAA(P) Act, especially when
the accused is qualified to be booked under the said Act.
10. If the Superintendent of Police who mooted the
proposal was having bonafide apprehension regarding the
repetition of anti-social activities by the detenu, definitely he would
have acted swiftly after the last prejudicial activity. In the case at
hand, as already stated, there is a delay of more than six and half
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months in mooting the proposal for the detention order. Therefore,
nobody could be blamed if it is found that, the live link between the
last prejudicial activity and the purpose of detention is snapped.
The delay of more than six and half months in mooting the proposal
itself shows that the proposed officer did not have any genuine
apprehension regarding the immediate repetition of criminal
activities by the detenu.
11. In the result, this Writ Petition is allowed and Ext.P1
order of detention is set aside. The Superintendent of High
Security Prison, Viyyur, Thrissur is directed to release the detenu,
Sri.Ishack K.K. forthwith, if his detention is not required in
connection with any other case.
The Registry is directed to communicate the order to the
Superintendent of High Security Prison, Viyyur, Thrissur forthwith.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
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APPENDIX OF WP(CRL.) 765/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE DETENTION ORDER
BEARING NO. DCMPM/12210/2022-S1 DATED
20.03.2025 PASSED BY THE 3RD
RESPONDENT.
Exhibit P2 TRUE COPY OF THE LETTER BEARING NO.
R2-1552/2023/HSP-288 DATED 02.04.2025
ISSUED BY THE OFFICE OF THE
SUPERINTENDENT, HIGH SECURITY PRISON,
VIYYUR TO THE DETENUE.
Exhibit P3 TRUE COPY OF THE ORDER DATED
03.04.2025 BEARING NO. HOME-
SSA1/146/2025-HOME ISSUED BY THE HOME
DEPARTMENT, GOVERNMENT OF KERALA.
Exhibit P4 TRUE COPY OF THE REPRESENTATION DATED
15.04.2025 SUBMITTED BY THE
PETITIONER BEFORE THE 2ND RESPONDENT
WITH ACKNOWLEDGMENT.
Exhibit P5 TRUE COPY OF THE TRACK CONSIGNMENT
BEARING CONSIGNMENT NO. RL021568517IN
OF THE INDIA POST.
Exhibit P6 TRUE COPY OF THE REPRESENTATION DATED
14.05.2025 SUBMITTED BY THE
PETITIONER BEFORE THE KAAPA ADVISORY
BOARD.
Exhibit P7 TRUE COPY OF THE G.O.(RT)
NO.1746/2025/HOME DATED 26.05.2025
PASSED BY THE 2ND RESPONDENT.
