Kerala High Court
Jayanthi vs State Of Kerala on 25 February, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:15845
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
TUESDAY, THE 25TH DAY OF FEBRUARY 2025 / 6TH PHALGUNA, 1946
WP(CRL.) NO. 38 OF 2025
PETITIONER:
JAYANTHI
AGED 53 YEARS
W/O BABU POOJARI, CHENNIKKARA VEEDU,
NULLIPADY, KASARGODE P.O.,
KASARGODE, PIN - 671121
BY ADVS.
M.H.HANIS
T.N.LEKSHMI SHANKAR
NANCY MOL P.
ANANDHU P.C.
NEETHU.G.NADH
RIA ELIZABETH T.J.
SINISHA JOSHY
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
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2 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE,
KASARGOD DISTRICT, PIN - 671123
3 THE DISTRICT POLICE CHIEF
CIVIL STATION, KASARGOD,
PIN - 671123
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
BY ADV. SRI. K.A. ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY
HEARD ON 24.02.2025, THE COURT ON 25.02.2025 DELIVERED THE
FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
This writ petition has been directed against an order of detention
dated 12.12.2024 passed against one Babu Poojari, 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. After considering
the opinion of the Advisory Board, the detention order stands confirmed
by the Government vide order dated 11.02.2025 and the detenu was
ordered to be detained for a period of six months from the date of
execution of the detention order.
2. The records available before us disclose that a proposal was
submitted by the District Police Chief, Kasaragode on 19.10.2024, seeking
initiation of proceedings against the detenu 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 goonda" as
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defined under Section 2(o)(ii) of the KAA(P) Act, and for passing the order
of detention the authority reckoned 8 cases in which the detenu got
involved.
3. The last case registered against the detenu is crime
No.671/2024 of Kasaragode Police Station, alleging offence punishable
under Section 58 of Abkari Act. The last prejudicial activity was on
11.09.2024.
4. We 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
under the KAA(P) Act. The main contention taken by learned counsel for
the petitioner is that, though the detenu was released on bail in crime
No.671/2024 of Kasaragode Police Station, the case registered with
respect to the last prejudicial activity, the jurisdictional authority passed
the detention order without considering whether the conditions imposed
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on the detenu while granting bail to him are sufficient to restrain him from
repeating criminal activities. According to the learned counsel, the
non-consideration of the sufficiency of the bail conditions imposed on the
detenu by the court which granted bail itself is a ground to set aside the
impugned order.
6. In response, Sri. K.A. Anas, the learned Government Pleader,
asserted that, the impugned order was passed after proper application of
mind and arriving at the requisite objective as well as subjective
satisfaction. According to him, all the procedural formalities necessary to
be complied with in passing an order of detention under KAA(P) Act are
scrupulously complied with in this case and there is no reason to interfere
with the impugned order. It is pointed out that, in the impugned order,
the bail granted to the petitioner in the last prejudicial activity is adverted
to and hence no interference is warranted.
7. We have carefully considered the submissions advanced and
have perused the records.
8. The records show that the detenu was classified as a "known
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goonda", considering his recurrent involvement in 8 criminal cases. All the
cases registered against the detenu were registered alleging the
commission of offences punishable under Abkari Act. The case with
respect to the last prejudicial activity is crime No.671/2024 of Kasaragode
Police Station alleging offence punishable under Section 58 of the Abkari
Act. Though the said case was detected on 11.09.2024, the detenu was
arrested in the said case only on 03.10.2024. He was released on bail in
the said case on 23.11.2024. It was on 19.10.2024, while he was under
judicial custody in connection with the last prejudicial activity, the District
Police Chief, Kasaragode mooted a proposal for initiation of proceedings
under Section 3(1) of KAA(P) Act against the detenu.
9. It was mainly harping on the report of the sponsoring
authority Ext.P1 order of detention was passed. In the detention order,
the fact that the detenu was released on bail in connection with the last
prejudicial activity is seen specifically mentioned. However, the order is
silent as to what necessitated the authority to pass the impugned order
when stringent conditions were clamped in the order granting bail to the
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detenu in the last prejudicial activity. We are not oblivious that there is no
legal impediment in passing a detention order under KAA(P) Act even
when the detenu is on bail in connection with the last prejudicial activity.
However, when the detenu is already on bail, the jurisdictional authority
shall consider whether the conditions imposed by the court while granting
bail to him are sufficient to prevent him from repeating criminal activities.
10. In the case at hand, as already stated, the jurisdictional
authority specifically mentioned the fact that the detenu was already on
bail in the impugned order. Though the jurisdictional authority was
cognizant of the said fact, in the order it is not mentioned whether the bail
conditions imposed by the court at the time of granting bail to the detenu
are sufficient to restrain him from repeating criminal activities. Therefore,
it can be seen that the sufficiency of bail conditions imposed in the bail
order was not considered by the authority while passing the detention
order. Hence non-application of mind on the part of the jurisdictional
authority while passing the impugned order is apparent in this case.
11. In the result, this Writ Petition is allowed and Ext.P1 order of
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detention is set aside. The Superintendent of Central Prison, Viyyur,
Thrissur is directed to release the detenu, Sri. Babu Poojari, 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/-
P.B. SURESH KUMAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ncd
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APPENDIX OF WP(CRL.) 38/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER
NO.DCKSGD/9491/2024-D1(1) DATED 12.12.2024 OF
THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE REPRESENTATION DATED
24.12.2024 SUBMITTED BY THE PETITIONER BEFORE
THE 1ST RESPONDENT
Exhibit P3 A TRUE COPY OF THE POSTAL RECEIPT EVIDENCING
THE ISSUANCE OF EXT P2
Exhibit P4 A TRUE COPY OF THE REPRESENTATION DATED
24.12.2024 SUBMITTED BY THE PETITIONER BEFORE
THE 4TH RESPONDENT
Exhibit P5 A TRUE COPY OF THE POSTAL RECEIPT EVIDENCING
THE ISSUANCE OF EXT P4
