Kerala High Court
Aswathy R.S vs State Of Kerala on 20 August, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:63305
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
WEDNESDAY, THE 20TH DAY OF AUGUST 2025/29TH SRAVANA, 1947
WP(CRL.) NO. 111 OF 2025
PETITIONER:
ASWATHY R.S., AGED 33 YEARS,
W/O UDAYADAS, CHARUVILA PUTHEN, THAZHAM NORTH,
CHATHANOOR, KOLLAM,, PIN - 691572
BY ADVS.
SHRI.M.H.HANIS
SMT.T.N.LEKSHMI SHANKAR
SMT.NANCY MOL P.
SHRI.ANANDHU P.C.
SMT.NEETHU.G.NADH
SMT.RIA ELIZABETH T.J.
SMT.SINISHA JOSHY
SHRI.SAHAD M. HANIS
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,
CIVIL STATION, KOLLAM DISTRICT, PIN - 691013
3 THE DISTRICT POLICE CHIEF,
KOLLAM, KOLLAM DISTRICT,, PIN - 691001
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4 THE CHAIRMAN, ADVISORY BOARD, KAAPA,
SREENIVAS, PADAM ROAD, VIVEKANANDA NAGAR,
ELAMAKKARA, ERNAKULAM DISTRICT, PIN - 682026
5 THE SUPERINTENDENT OF JAIL,
CENTRAL JAIL, VIYYUR, THRISSUR DISTRICT, PIN
- 670004
SRI. K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 20.08.2025, 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 28.10.2024 passed against one Vineesh @ Bellak
under Section 3(1) of the Kerala Anti-Social Activities (Prevention)
Act, 2007 ('KAA(P) Act' for brevity). The petitioner herein is the sister
of the detenu. The detention order stands approved by the
Government vide order dated 18.01.2025 and the brother of the
petitioner has been ordered to be detained for a period of one year
from the date of execution of the order.
2. The records available before us disclose that a proposal
was submitted by the District Police Chief, Kollam city, on 18.09.2024,
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.
3. Altogether, seven cases in which the detenu got involved
were considered by the detaining authority for issuing Ext.P1 order of
detention. Out of the said cases, the case registered with respect to
the last prejudicial activity is crime No.785/2024 of Chanthannur
Police Station alleging the commission of offences punishable under
Sections 118(1), 296(b), 333, 74 r/w 3(5) of Bharatiya Nyaya Sanhita
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(for short "BNS") and the detenu is arrayed as the 1st accused in the
said case.
4. We have heard Sri. M.H. Hanis, the learned counsel
appearing for the petitioner, and Sri. K.A. Anas, the learned
Government Pleader.
5. The learned counsel for the petitioner would submit that
the impugned order is vitiated, as the same is passed without proper
application of mind and disregarding the procedural safeguards
envisaged in the KAA(P) Act. According to the counsel, there is an
inordinate delay in mooting the proposal by the sponsoring authority,
as well as in passing the impugned order by the competent authority
after the last prejudicial activity. It is pointed out that the said delay
in forwarding the proposal and passing the detention order will snap
the live link between the last prejudicial activity and the purpose of
detention. The learned counsel urged that, if the sponsoring authority
was having any bonafide apprehension regarding repetition of
criminal activities by the detenu, the authority would have acted on a
war footing in making the proposal for initiation of proceedings under
KAA(P) Act, particularly when the detenu was allegedly absconding
after the commission of the last prejudicial act.
6. In response, Sri. K.A. Anas, the learned Government
Pleader, asserted that there is no unreasonable delay either in
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submitting the proposal or in passing Ext.P1 detention order after the
last prejudicial activity. However, some minimal delay is inevitable
while passing a detention order, especially when the authority has to
ensure adherence to the natural justice principles while passing such
an order. The learned Government Pleader pointed out that a hasty
action under KAA(P) Act is not at all desirable, especially when an
order of detention has a heavy bearing on the personal and
fundamental rights of a citizen. 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.
7. We have carefully considered the submissions advanced
and have perused the records.
8. From a perusal of the records, it can be seen that the
recurrent involvement of the detenu in criminal activities necessitated
the initiation of proceedings under KAA(P) Act against the detenu.
Seven cases in which the detenu got involved formed the basis for
passing the impugned order of detention. Out of the said case, the
case registered with respect to the last prejudicial activity is crime
No.785/2024 of Chanthannur Police Station, alleging the commission
of offences punishable under Sections 118(1), 296(b), 333, 74 r/w 3(5)
of BNS. The detenu who is arrayed as the 1st accused in the said case
was not arrested as he allegedly absconded after the commission of
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the said offence. It was while he was absconding, the proposal for
initiation of proceedings under KAA(P) Act was initiated as well as the
detention order was passed. As already stated, the sponsoring
authority mooted the proposal for action under the KAA(P) Act on
18.09.2024. Therefore, it is demonstrably clear that there is a delay
of 45 days in mooting the proposal after the commission of the last
prejudicial activity.
9. 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 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.
10. In T.A.Abdul Rahman v. State of Kerala, [1990 SCC Cri
76], the Apex Court held that the question whether the prejudicial
activities of a person necessitating to pass an order of detention is
proximate to the time when the order is made or the live link between
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the prejudicial activities and the purpose of detention is snapped
depends on the facts and circumstances of each case. No hard and
fast rule can be precisely formulated that would be applicable under
all circumstances, and no exhaustive guidelines can be laid down on
that behalf. It follows that the test of proximity is not a rigid or
mechanical test by merely counting the number of months between
the offending acts and the order of detention. However, when there is
an undue and long delay between the prejudicial activities and the
passing of the detention order, the court has to scrutinize whether the
detaining authority has satisfactorily examined such a delay and
afforded a tenable and reasonable explanation as to why such a delay
has occasioned when called upon to answer and further the court has
to investigate whether the causal connection has been broken in the
circumstances of each case.
11. Keeping in mind the above principles, while reverting to
the facts in the present case, it can be seen that no convincing
explanation whatsoever has been offered for the delay of 45 days that
occurred in mooting the proposal in this case. Moreover, it is evident
that after the commission of the last prejudicial activity, the detenu
who is arrayed as the 1st accused in the said case absconded.
Curiously, in the impugned order itself, it is admitted that there
occurred some delay in forwarding the proposal. Although it is true
that the accused was absconding after the commission of the last
prejudicial activity, there is no legal impediment in initiating
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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.
12. 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 45 days 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 45 days 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 accused.
13. The assertion of the learned Government Pleader that
additional time was needed to gather the details of the crimes before
forwarding the proposal lacks credibility. In the case at hand, seven
cases formed the basis for proposing and issuing the detention order.
The details of those cases were readily available and could have been
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obtained without delay, given the technological upgradation attained
by the law enforcement authority. Therefore, we are of the considered
view that the delay in mooting the proposal is unreasonable and
unjustifiable. If the true objective was to prevent the detenu from
engaging in anti-social activities, the authority ought to have acted
with greater alacrity in submitting the proposal and issuing the
consequent order. Therefore, the only conclusion that can be arrived
at is that the live link between the last prejudicial activity and the
purpose of detention has been snapped.
14. In the result, this Writ Petition is allowed, and Ext.P1
order of detention is set aside. The Superintendent of Central Prison,
Viyyur, Thrissur is directed to release the detenu, Sri. Vineesh @
Bellak 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 Central Prison, Viyyur, Thrissur forthwith.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ncd
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APPENDIX OF WP(CRL.) 111/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF ORDER NO.
DCKLM/9517/2024-M-16 DATED 28.10.2024
OF THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE REPRESENTATION
DATED 18.12.2024 SUBMITTED BY THE
PETITIONER BEFORE THE 1ST RESPONDENT
Exhibit P3 A TRUE COPY OF THE ACKNOWLEDGMENT
CARD RECEIPT EVIDENCING THE RECEIPT
OF EXT P2 ON 20.12.2024
Exhibit P4 A TRUE COPY OF THE REPRESENTATION
DATED 18.12.2024 SUBMITTED BY THE
PETITIONER BEFORE THE 4TH RESPONDENT
Exhibit P5 A TRUE COPY OF THE ACKNOWLEDGMENT
CARD RECEIPT EVIDENCING THE RECEIPT
OF EXT P4 ON 19.12.2024
