Kerala High Court
Ayishabi Thcharakkunnummal vs State Of Kerala on 6 February, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:9299
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
THURSDAY, THE 6TH DAY OF FEBRUARY 2025 / 17TH MAGHA, 1946
WP(CRL.) NO. 1312 OF 2024
PETITIONER:
AYISHABI THCHARAKKUNNUMMAL
AGED 50 YEARS, W/O SIRAJUDHEEN,
KADUMODIYIL HOUSE, PATTISSERY, NELLAYA,
PALAKKAD PIN - 679335.
BY ADVS.
M.H.HANIS
T.N.LEKSHMI SHANKAR
NANCY MOL P.
ANANDHU P.C.
NEETHU.G.NADH
SINISHA JOSHY
ANN MARY ANSEL
SAHAD M. HANIS
RIA ELIZABETH T.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,
CIVIL STATION, PALAKKAD DISTRICT, PIN - 678001
W.P.(Crl) No.1312 of 2024 -: 2 :-
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3 THE DISTRICT POLICE CHIEF,
CIVIL STATION, PALAKKAD DISTRICT, PIN - 678001
4 THE CHAIRMAN,
ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD,
VIVEKANANDA NAGAR, ELAMAKKARA, ERNAKULAM DIST,
PIN - 682026
5 THE SUPERINTENDENT OF JAIL,
CENTRAL JAIL, VIYYUR, THRISSUR DIST,
PIN - 670004
SRI.K.A.ANAS GP
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY
HEARD ON 29.01.2025, THE COURT ON 06.02.2025 DELIVERED
THE FOLLOWING:
W.P.(Crl) No.1312 of 2024 -: 3 :-
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C.R.
P.B.SURESH KUMAR & JOBIN SEBASTIAN, JJ.
-----------------------------------------------
W.P.(Crl) No.1312 of 2024
-----------------------------------------------
Dated this the 6th day of February, 2025
JUDGMENT
P.B.Suresh Kumar, J.
This writ petition is instituted seeking a writ of
habeas corpus directing the respondents to produce the son of
the petitioner, Muhammed Muneer who is undergoing detention
in terms Ext.P1 order issued under Section 3(1) of the Kerala
Anti-Social Activities (Prevention) Act, 2007 (the Act) and set
him at liberty. Ext.P1 order was issued on 25.10.2024 and it
was executed on 26.10.2024. Ext.P1 order is issued on the
premise that the detenu is a "known rowdy".
2. There was an earlier order of detention against
the detenu under the Act and the same was revoked by the
Government on the basis of the report of the Advisory Board
constituted under the Act. It was thereafter that the present
order of detention has been issued taking into account the
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prejudicial activities in which the detenu was indulged in after
revocation of the earlier order of detention. Two cases in which
the detenu was involved after his release pursuant to the
revocation of the earlier order of detention have been
considered for the purpose of issuing the present order of
detention. They are Crime No.1184 of 2024 of Perinthalmanna
Police Station and Crime No.542 of 2024 of Cherpulassery
Police Station. Among the said cases, Crime No.542 of 2024 of
Cherpulassery Police Station is one registered on 11.08.2024.
The detenu is the first accused in the said case. He was
arrested in connection with the said case on 22.08.2024 and
was enlarged on bail on 15.10.2024. It was while he was
undergoing custody in the said case, the proposal was made on
27.09.2024 for his detention and he was detained on
25.10.2024 after his release on bail on 15.10.2024.
3. It was contended by the learned counsel for
the petitioner that Ext.P2 representation preferred by the
detenu against the order of detention was received by the
Government on 06.11.2024 and without considering the same,
the case of the detenu has been placed before the Advisory
Board. According to the learned counsel, inasmuch as the
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representation of the detenu against the detention order has
been received by the Government before the case of the
detenu was placed before the Advisory Board, it should have
been considered by the Government. It was also contended by
the learned counsel that there is a long and unexplained delay
in submitting the proposal for the detention and that the same
snapped the live link between the order of detention and the
grounds of detention. It was further contended by the learned
counsel that even though the earlier order of detention was
revoked by the Government, the reason for revocation of the
same has not been mentioned in the order nor has the same
been communicated to him. According to the learned counsel,
the detention order is bad on account of that reason also. It was
further contended by the learned counsel that one among the
cases namely, Crime No.1184 of 2024 of Perinthalmanna Police
Station is not a crime which could have been taken into account
for the purpose of deciding whether the detenu is a "known
rowdy" as it is not a crime which involves any anti-social
activity. It was further contended by the learned counsel that
Crime No.542 of 2024 of Cherpulassery Police Station is a case
involving an offence punishable under the Bharatiya Nyaya
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Sanhita (BNS) and that the offences under the BNS are not
notified for the purpose of the Act.
4. We have examined the contentions raised by
the learned counsel for the petitioner. In K.M. Abdulla Kunhi v.
Union of India, (1991) 1 SCC 476, it was held by the Apex Court
that in cases where the representation of the detenu is received
before the case is referred to the Advisory Board, but there is
no time to dispose of the representation before referring the
case to the Advisory Board, then the representation must also
be forwarded to the Advisory Board along with the case of the
detenu. The Apex Court has also clarified that in such cases,
there is no question of consideration of the representation
before the receipt of the report of the Advisory Board. It was
also clarified by the Apex Court in the said case that in such a
situation, it cannot be contended that the Government has
delayed the consideration of the representation, unnecessarily
awaiting the report of the Board. Ext.P3 acknowledgement card
would indicate that Ext.P2 representation of the petitioner has
been received by the Government on 06.11.2024. On a query
from the Court, the learned Government Pleader made
available the order issued by the Government confirming the
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order of detention, and the same would show that the case of
the detenu has been placed before the Advisory Board on
06.11.2024 itself. There is no material to infer that the
representation of the petitioner has been received by the
Government before the case of the detenu was placed before
the Advisory Board. Even assuming that the representation has
been received before forwarding the case of the detenu to the
Advisory Board, we are of the view that the Government cannot
be found fault with for having placed the case of the detenu
before the Advisory Board, since the outer limit prescribed
under Section 9 the Act for doing so would expire on
16.11.2024, and the Government is not expected to consider
the representation before the said outer time limit. In other
words, the contention that the Government should have
considered the representation submitted by the detenu before
his case was placed before the Advisory Board, is
unsustainable.
5. As regards the contention that there is a long
and unexplained delay in submitting the proposal for the
detention, as noted, the last prejudicial activity in which the
detenu is involved is one that took place on 11.08.2024 and he
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was arrested in connection with that case on 22.08.2024 and
enlarged on bail on 15.10.2024. The proposal for the detention
of the detenu was submitted by the competent authority while
the detenu was in judicial custody on 27.09.2024 itself and the
detention order was issued within ten days after his release on
bail on 15.10.2024. The consistent view taken by this Court is
that even though the principle is that the delay between the
last prejudicial activity and the order of detention, unless
satisfactorily explained, would throw a considerable doubt on
the genuineness of the requisite subjective satisfaction of the
detaining authority in passing the order of detention and render
the same bad and invalid for want of live and proximate link
between the grounds of detention and the purpose of
detention, if the detenu is in custody during the interregnum, it
is not possible to make an inference straight away that the live
and proximate link between the grounds of detention and the
purpose of detention has been snapped on account of the
delay. In the case on hand, if the period during which the
detenu was undergoing judicial custody in connection with the
last prejudicial activity is excluded from consideration, we do
not think that there is any delay at all, on the basis of which it
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could be contended legitimately that the live and proximate
link between the prejudicial activities and the purpose of
detention has been snapped.
6. As regards the contention that even though the
earlier order of detention was revoked by the Government and
that the reason for the same has not been mentioned in the
order nor has been communicated to the detenu, it is seen that
an identical contention has been considered and rejected by us
in W.P.(Crl) No.1221 of 2024. Paragraph 8 of the said judgment
reads thus:
8. The next contention of the learned counsel for the
petitioner is that he is entitled to be furnished the reasons, on
the basis of which two earlier orders of detention issued
against the detenu have been revoked, and inasmuch as
those reasons were not furnished to him, he is deprived of his
right under Article 22(5) of the Constitution to prefer an
effective representation against the order of detention. The
detenu has been provided with copies of the orders revoking
the earlier detention orders. His grievance is only that the
reasons, on the basis of which those orders were issued, have
not been furnished to him. The detenu does not dispute the
fact that it is based on the opinion given by the Advisory
Board that the earlier orders of detention are revoked by the
Government. In other words, the reasons for revocation of the
earlier orders are contained in the opinion of the Advisory
Board. In the light of Section 10(3) of the Act which provides
that the opinion of the Advisory Board shall be confidential,
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the detenu is not entitled to be furnished a copy of the
opinion given by the Advisory Board. In other words, the
detenu cannot be heard to contend that he is entitled to be
furnished the reasons for revocation of the earlier orders of
detention.
In the light of the decision of this Court in W.P.(Crl) No.1221 of
2024, the contention aforesaid is also liable to be rejected and
we do so.
7. The next contention is that one among the
cases namely, Crime No.1184 of 2024 of Perinthalmanna Police
Station is not a case that could be reckoned for the purpose of
considering whether the detenu is a "known rowdy". The
argument is that the said crime is not one which involves any
anti-social activity. According to the learned counsel, the
allegation against the detenu in the said case is only that he
failed to return a vehicle that was entrusted to him by one of
his friends and that therefore such a case cannot be regarded
as a crime involving any anti-social activity. It was argued that
in order to make out a case of "anti-social activity", it has to be
shown that the case is one that involves public order and that
the allegations in the case do not meet the said criterion. The
learned counsel relied on the decision of the Apex Court in
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Nenavath Bujji v. State of Telangana, 2024 SCC OnLine SC 367,
in support of the argument. Section 2(a) of the Act defines
"anti-social activity". Section 2(a) reads thus:
"'anti-social activity' means acting in such manner as to
cause or is likely to cause, directly or indirectly, any feeling of
insecurity, danger or fear among the general public or any
section thereof, or any danger to the safety of individuals,
safety of public, public health or the ecological system or any
loss or damage to public exchequer or to any public or
private property or indulges in any activities referred in
clauses (c), (e), (g), (h), (i), (l), (m), (n), (q), (qb) and (s) of
this section;"
Going by the definition aforesaid, any activity which causes or
likely to cause, directly or indirectly, any loss or damage to any
public or private property, would fall within the scope of the
definition of "anti-social activity". The relevant portion of the
detention order dealing with Crime No.1184 of 2024 reads thus:
"അന യക രൻ സഹത ന ക വശത ൽ ന ന 10 ദ വസത ന ഉപയയ ഗ ക ൻ ന ണ
വന KL 51 J 7 നമർ BMW ർ 16.06.2024 ന എത ർ ക അടങ യ പത ൾ
അന യക രനമ യള സ-ഹദ മതന/ടത ർ ഓട ച യന ക ഇയ4 ൾ വര എനപറഞ
നപര നൽമണ ക9പ സ യറ ഡ ന സമ<പമള ബയദഴ യ? ട/ ന മൻവശതന ന ർ
ന ണയപ യ ഈ സമയ വനരയ അന യക രന ർ ത ര ന ന ടക നത ചത നചയ
എന റ ന ത അന യക രന മ ളനട 2 യബസ ന/റ ള , ഒര നചയ ന ,
അയ യ രയത ള രപയ , വണ യനട യപ4റ , നചക , മദയപ4റ ള , ച വ യ
ഉണ യ രനനവന മറമള ര ത ന മ?മദ അനസ, വയസ 31, നപ ടച റ ?-സ,
നനല യ, നചർപളയRര എനയ ളരനട പര ത പ ര 17.06.2024 ത<യത മ/പറ
നപര നൽമണ യപ /<സ യSഷൻ ക . 1184/2024 U/s. 406, 420 IPC ആയ യ സ രജ Sർ
നചയ നപര നൽമണ യപ /<സ യSഷന ൽ അയനYഷണ നടത വരനത ണ. യ സ ന
ന ള തവനരയള അയനYഷണത ൽ കറകത ത ൽ എത ർ ക മ?മദ മന<റ ന പങ
വ കമ യ നവള വ യ ടളത ,."
According to us, the allegations in the said case as found prima
facie true, would certainly fall within the definition of "anti-
social activity" under Section 2(a) of the Act. Be that as it may,
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going by the scheme of the Act as discernable from Section 3,
'known rowdies' are detained under the Act in order to prevent
them from indulging in anti-social activities. In other words,
persons who would satisfy the definition of "rowdy" are
presumed to be persons indulging in anti-social activities. The
detenu has no case that the offences alleged against him in
Crime No.1184 of 2024 are not offences which would fall under
Chapter XVII of the Indian Penal Code (IPC) and that he cannot
be classified as a "rowdy". If that be so, the detenu cannot be
heard to contend that the activities in which he had allegedly
indulged in, are not anti-social activities.
8. The next contention is that the offences
involved in Crime No.542 of 2024 of Cherpulassery Police
Station are offences punishable under BNS and that the said
offences cannot be reckoned for the purpose of classifying a
person as a "rowdy" in terms of its definition in the Act, and
that the classification of the detenu as "known rowdy" is,
therefore, bad. The above argument is advanced in the light of
the definition of "rowdy" as contained in the Act. The
expression "rowdy" is defined in Section 2(t) of the Act as
follows:
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"'rowdy' means and includes a person who either by himself
or as a member of a gang commits or attempts to commit, or
abets the commission of any offences under sections 153A
and 153B of Chapter VIII and Chapters XV, XVI, XVII & XXII of
the Indian Penal Code, 1860 (Central Act 45 of 1860), or any
offences under the provision of the Arms Act, 1959 (Central
Act 54 of 1959), or the Explosives Substances Act, 1908
(Central Act 6 of 1908),--"
The argument is advanced since the offences punishable under
the BNS are not specifically brought under the definition of
"rowdy" contained in Section 2(t) of the Act. Section 8(1) of the
General Clauses Act, 1897 reads thus:
"Where this Act, or any Central Act or Regulation made after
the commencement of this Act, repeals and re-enacts, with or
without modification, any provision of a former enactment,
then references in any other enactment or in any instrument
to the provision so repealed shall, unless a different intention
appears, be construed as references to the provision so re-
enacted."
Section 3(19) of the General Clauses Act provides an inclusive,
rather than restrictive, definition of the expression
"enactment". In State of Punjab v. Sukh Dev Sarup Gupta,
(1970) 2 SCC 177, the Apex Court held that the word
"enactment" contained in Section 8(1) of the General Clauses
Act would include any enactment passed by the Union
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Parliament or State Legislature. In other words, in the light of
Section 8(1) of the General Clauses Act, in the absence of any
different intention, the reference to the provisions contained in
the repealed enactment namely, IPC in Section 2(t) of the Act
shall be construed as reference to the provisions in BNS, the re-
enactment. Section 2(t) refers, inter alia, to offences under
Chapter XVII of IPC dealing with "Of Offences Against Property".
In other words, after the coming into force of the re-enactment
namely BNS, Section 2(t) has to be construed as referring to
the offences under the relevant chapter in BNS dealing with
offences against property, namely Chapter XVII titled "Of
Offences Against Property". Inasmuch as Section 2(t) does not
refer to any offence in particular, after the coming into force of
the re-enactment namely, BNS, Section 2(t) has to be
construed as referring to all the offences in Chapter XVII of BNS
including new offences if any, included. The petitioner has no
case that the offences included in Crime No.542 of 2024 of
Cherpulassery Police Station are not offences against property
as categorized in Chapter XVII of BNS. In the circumstances, we
do not find any substance in this argument also.
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In the light of the discussions aforesaid, the writ
petition is devoid of merits and the same is, accordingly,
dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
JOBIN SEBASTIAN, JUDGE.
YKB
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APPENDIX
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF ORDER NO.
DCPKD/12681/2024-S1 DATED 25.10.2024
OF THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF REPRESENTATION DATED
04.11.2024 SUBMITTED BEFORE THE 1ST
RESPONDENT
Exhibit P3 A TRUE COPY OF POSTAL ACKNOWLEDGMENT
CARD EVIDENCING THE RECEIPT OF EXT P2
BY THE 1ST RESPONDENT
Exhibit P4 A TRUE COPY OF REPRESENTATION DATED
12.04.2024 SUBMITTED BEFORE THE 4TH
RESPONDENT
Exhibit P5 A TRUE COPY OF POSTAL ACKNOWLEDGMENT
CARD EVIDENCING THE RECEIPT OF EXT P4
BY THE 4TH RESPONDENT
