Kerala High Court
Manjusha K.P vs State Of Kerala on 4 July, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
W.P(Crl.) No.440/2025 2025:KER:48477
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
FRIDAY, THE 4 DAY OF JULY 2025 / 13TH ASHADHA, 1947
WP(CRL.) NO. 440 OF 2025
PETITIONER:
MANJUSHA K.P, AGED 47 YEARS, W/O RAMESHAN,
PULIYULLAPARAMBATHU VEEDU, PUTHOOR AMSOM, KUNNUMEML,
CHENDAYAD, THALASSERY, KANNUR, PIN - 670692
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.
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, KANNUR DISTRICT, PIN - 670002
3 THE DISTRICT POLICE CHIEF,
CIVIL STATION ROAD, KANNUR CITY, PIN - 670002
4 THE CHAIRMAN, ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD,
VIVEKANANDA NAGAR, ELAMAKKARA, ERNAKULAM DISTRICT - 682026
5 THE SUPERINTENDENT OF JAIL,
CENTRAL PRISON, VIYYUR, THRISSUR DIST, PIN - 670004
BY ADVS.
SRI.K.A.ANAS, PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
30.06.2025, THE COURT ON 04.07.2025 DELIVERED THE FOLLOWING:
W.P(Crl.) No.440/2025 2025:KER:48477
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'CR'
JUDGMENT
K. V. Jayakumar, J.
The petitioner is the mother of detenu, Midhun P.P @ Kuttappi ('detenu'
for the sake of brevity). The petitioner challenges Ext.P1 order of detention
dated 04.02.2025 passed by the 2nd respondent under Section 3(1) of the Kerala
Anti-Social Activities (Prevention) Act, 2007 ['KAA(P) Act' for the sake of brevity].
The aforesaid order was approved by the Government vide order
No.DCKNR/16026/2024-SSI dated 04.02.2025.
2. The records reveal that a proposal was submitted by the District
Police Chief, Kannur City on 26.12.2024 seeking initiation of proceedings against
the petitioner's son under the KAA(P) Act before the jurisdictional authority, the
2nd respondent. 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. The detaining authority has taken into consideration a total of four cases
involving the petitioner's son while issuing the impugned order of detention. The
details of these cases are provided below:-
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Sl.No. Crime No. Police Station Crime Date Offences Involved under various Present Status
sections of the case
1 257/2020 Kannavam 08.09.2020 143, 147, 148, 109, 120, 120-B, Pending trial
341, 323, 506(ii), 302, 201 r/w
149 IPC r/w Sec 25(1-B)(b) and
27 of Arms Act
2 1018/2023 Panoor 08.10.2023 341, 323 r/w 34 IPC Pending trial
3 533/2024 Panoor 05.07.2024 127(2), 115(2), 118(1), 110, Pending trial
351(2) r/w 3(5) of BNS
4 1009/2024 Panoor 04.12.2024 79, 296, 351(2) r/w 3(5) of BNS Under
investigation
3. The case registered in relation to the last prejudicial activity is
Crime No. 1009/2024 of Panoor Police Station, alleging the commission of
offences punishable under Sections 79, 296, and 351(2) r/w Section 3(5) of the
Bharatiya Nyaya Sanhita (BNS). The detenu is arrayed as the 1st accused in the
said case. The detenu was arrested on 07.12.2024 and released on bail on the
same day itself.
4. We heard Sri. M.H. Hanis, the learned counsel appearing for the
petitioner and Sri. Anas K.A., the learned Government Pleader.
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5. Submissions of the learned counsel for the writ petitioner:
5.1 Ext. P1 order is passed in a mechanical manner, without due
application of mind and in disregard of the procedural safeguards
mandated under the KAA(P) Act.
5.2 The procedure mandated under Section 7(2) of the Kerala Anti-Social
Activities (Prevention) Act has not been strictly followed.
5.3 The learned counsel contended that there was a delay of two months
between the last prejudicial activity and the issuance of Ext. P1 order,
as well as an unexplained delay of eight days in its execution. It was
submitted that the absence of any explanation for the delay renders
the detention order vitiated.
5.4. The documents supplied to the detenu along with the detention order
are illegible. It has resulted in grave prejudice being caused to the
detenu in availing his right to send a representation to the relevant
authorities.
5.5 Though separate representations were submitted before both the
Government and the Advisory Board on 28.02.2025, as evidenced by
Exhibits P3 and P4, highlighting various contentions--including the
illegibility of the documents supplied--no remedial action was
undertaken. These representations were considered only subsequent to
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the issuance of the detention order. Moreover, the representations were
not duly or meaningfully considered, as no explanation whatsoever has
been offered regarding the supply of illegible documents, thereby
rendering the right of effective representation illusory.
6. Submissions of the Public Prosecutor:
Sri.K.A.Anas, learned Public Prosecutor, submitted that the order of
detention was passed after complying with all the necessary legal formalities and
after proper application of mind. Moreover, copies of all the relevant records and
the grounds of detention were furnished to the detenu and the detenu was
informed of his right to file representation against the detention order before the
Government as well as the Advisory Board. The delay occasioned in passing
Ext.P1 order from the last prejudicial activity is only reasonable and not
inordinate.
7. The first contention of the learned counsel for the petitioner is that
Section 7(1) and (2) of the KAA(P) Act is not properly complied with. Even
though documents were supplied, a portion of documents were not readable and
legible. According to the learned counsel appearing for the petitioner, Section
7(1) and (2) of the KAA(P) Act should be complied stricto senso. The non-supply
of legible copies, specifying the details of cases reckoned for passing an
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impugned order is a serious lapse of the detaining authority. Serious prejudice is
thereby caused to the writ petitioner for making an effective representation
against the detention order before the Advisory Board.
8. Before further discussion, it may be useful to extract Section 7 of
the KAA(P) Act.
7. Grounds of order of detention to be disclosed.
(1) When a person is arrested in pursuance of a detention order
the officer arresting him shall read out the detention order to
him and give him a copy of such order.
(2) The grounds of detention, specifying the instances of
offences, with copies of relevant documents, as far as
practicable, on the basis of which he is considered as a "known
goonda" or "known rowdy" and giving such materials-relating to
his activities on the basis of which his detention has been found
necessary, shall be furnished to him as soon as possible,
nevertheless, in any case, within five days of detention and he
shall also be informed in writing, under acknowledgment, of his
right to represent to the Government and before the Advisory
Board against his detention:
Provided that nothing in this section shall require any authority
to disclose to the detained person any fact, the disclosure of
which will reveal the identity of any confidential source or the
disclosure of which will be against the interests of internal
security or national security.
(3) The Superintendent of the Jail where such person is detained
shall afford him reasonable opportunity to consult a lawyer and
reasonable assistance in making a representation against the
detention order to the Government or to the Advisory Board.
(4) The order of detention shall not be deemed to be invalid
merely because one or more of the facts or circumstances cited
among the grounds are vague, non-existent, irrelevant or invalid
for any reason whatsoever and such order shall be deemed to
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have been made by the Government or the Authorised Officer
after having been satisfied about the need for detention with
reference to the remaining facts and circumstances, provided
that the minimum conditions for being classified as a known
goonda or known rowdy are satisfied."
9. Section 7(2) of the KAA(P) Act specifically states that the grounds
of detention, specifying the instances of offences, with copies of relevant
documents, based on which the detenu is considered as a "known goonda" or
"known rowdy" and giving such materials relating to his activities, shall be
furnished to the detenu as soon as possible, at any rate, within five days of
detention. The detenu shall also be informed in writing, under acknowledgment,
of his right to represent to the Government and before the Advisory Board
against his detention. The proviso to Section 7(2) makes it amply clear that the
detaining authority need not disclose any fact which would reveal the identity of
any confidential source or any fact which would be against the interest of internal
security or national security.
10. Sri. K.A. Anas, the learned Public Prosecutor, submitted that the
detenu had signed a written acknowledgement endorsing that he had received
legible copies of all documents. There was indeed an endorsement that the
detenu had received the legible copies of all documents.
11. The petitioner has produced copies of the documents which were
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provided to him and we have perused the same. We find that Page Nos. 14, 15,
16, 17, 18, 19 are illegible and unreadable. Section 7(2) mandates that the
grounds of detention, with all relevant documents and materials, based on which
the detention has been found necessary, shall be furnished to the detenu, as
soon as possible, at any rate within five days. It is trite law that the procedural
formalities concerning the preventive detention shall be strictly followed. The
materials to be supplied to the detenu shall be legible and readable. The
compliance of subsection (2) of Section 7 is not an empty formality. Only when
the legible and readable copies are furnished to the detenu, he could make an
effective representation before the Advisory Board and the Government. It is the
bounden duty of the detaining authority to ensure that copies furnished to the
detenu shall be legible and readable.
12. In Pramod Singla v. Union of India1, it was observed that where
illegible documents have been supplied to the detenu, a grave prejudice is
caused to the detenu in availing his right to send a representation to the relevant
authorities, because the detenu, while submitting his representation, does not
have clarity on the grounds of his or her detention. In such a circumstance, the
relief under Article 22(5) of the Constitution of India and the relevant statutory
provisions allowing for submitting a representation are vitiated, since no man can
2023 INSC 344
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defend himself against an unknown threat.
13. The second submission by the learned counsel for the writ
petitioner is that there is a delay of two months in passing Ext.P1 detention order,
and the last prejudicial activity alleged against the detenu. Moreover, there is a
delay of 8 days in the execution of Ext.P1 order. The learned counsel argued that
no explanation is offered for the said delay.
14. In T.A.Abdul Rahman v. State of Kerala2, the Apex Court
observed as under:
"10. The conspectus of the above decisions can be
summarised thus: 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 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 in that behalf. It follows that the test of
proximity is not a rigid or mechanical test by merely counting
number of months between the offending acts and the order of
detention. However, when there is undue and long delay
between the prejudicial activities and the passing of detention
order, the court has to scrutinise 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."
(1989) 4 SCC 741
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15. In the case on hand, altogether four cases were considered for
booking the detenu as 'known rowdy' under Section 2p(iii) of the Act. Out of the
four cases, three are in the trial stage and one case is under investigation. The
last prejudicial activity alleged against the detenu is Crime No.1009/2024 of
Pannor Police Station, registered under Sections 79, 296, 351(2) r/w 3(5) of BNS.
The date of the alleged occurrence is 04.12.2024. The detenu was arrested and
released on bail on 07.12.2024. He was implicated as the 1st accused. The
sponsoring authority submitted the proposal on 26.12.2024. In the facts and
circumstances, the delay cannot be said to be inordinate snapping the live link.
16. The third submission of the learned counsel for the petitioner is that
Exhibit P3 and P4 representations submitted by the detenu dated 28.02.2025
were not considered by the respondents. It is to be noted that one of the main
grievances raised in the representation is that some of the documents supplied to
the detenu are not legible and therefore he is deprived of making an effective
representation.
17. In State of Manipur v Buyamayum Abdul Hanan @ Anand3,
the Apex Court had occasion to consider the consequences of depriving the
detenu of effective representation by denial of supply of relied upon documents
[2022 INSC 1115]
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by the detaining authority. It was observed as under in paragraph 18 of the
judgment
18. What will be the effect when the detune is deprived of
effective representation or denial of supply of relied upon documents
by the detaining authority has been considered by this Court in
Ramchandra A. Kamat v. Union of India (1980) 2 SCC 270 as under:
"6. The right to make a representation is a fundamental right. The
representation thus made should be considered expeditiously by the
government. In order to make an effective representation, the detenu is
entitled to obtain information relating to the grounds of detention. When
the grounds of detention are served on the detenu, he is entitled to ask
for copies of the statements and documents referred to in the grounds of
detention to enable him to make an effective representation. When the
detenu makes a request for such documents, they should be supplied to
him expeditiously. The detaining authority in preparing the grounds would
have referred to the statements and documents relied on in the grounds
of detention and would be ordinarily available with him -- when copies of
such documents are asked for by the detenu the detaining authority
should be in a position to supply them with reasonable expedition. What
is reasonable expedition will depend on the facts of each case.
18. We find that in the case on hand, the matter was referred for the
opinion of the advisory board on 19.2.2025. Based on the opinion, the
confirmation order was passed on 24.4.2025. On 29.4.2025, the fate of
representation was communicated to the detenu. We have already held that
some of the documents supplied to the detenu are illegible. This fact was
highlighted by the detenu in Exhibit P3 and P4 representation dated 28.2.2025.
However, the above grievance of the detenu was not redressed and he was not
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furnished with a readable copy of the illegible documents. Instead, it was only
after the confirmation of the order that the representation was taken up and the
same was disposed of without addressing the grievances raised there. At any rate
the representation was not meaningfully considered and the same was just an
empty exercise.
19. In Ayya v. State of U.P4 the Supreme Court held in paragraph 13
of the judgment as under:
"13. Personal liberty, is by every reckoning, the greatest of
human freedoms and the laws of preventive detention are strictly
construed and a meticulous compliance with the procedural
safeguards, however technical, is strictly insisted upon by the
courts. The law on the matter did not start on a clean slate. The
power of courts against the harsh incongruities and
unpredictabilities of preventive detention is not merely "a page of
history" but a whole volume. The compulsions of the primordial
need to maintain order in society, without which the enjoyment of
all rights, including the right to personal liberty, would lose all their
meaning are the true justifications for the laws of preventive
detention. The pressures of the day in regard to the imperatives of
the security of the State and of public order might, it is true,
require the sacrifice of the personal liberty of individuals. Laws that
provide for preventive detention posit that an individual's conduct
prejudicial to the maintenance of public order or to the security of
State provides grounds for a satisfaction for a reasonable
prognostication of a possible future manifestations of similar
propensities on the part of the offender. This jurisdiction has been
called a jurisdiction of suspicion; but the compulsions of the very
preservation of the values of freedom, or democratic society and of
social order might compel a curtailment of individual liberty. "To
[(1989) 1 SCC 374]
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lose our country by a scrupulous adherence to the written law" said
Thomas Jefferson "would be to be lose the law itself, with life,
liberty and all those who are enjoying with us; thus absurdly
sacrificing the end to the means". This is, no doubt, the theoretical
justification for the law enabling preventive detention."
20. On a careful consideration of the materials on record, we are of the
view that the petitioner is entitled to succeed. The non-serving of legible copy of
the documents and the inordinate delay in meaningfully considering and
disposing the representation will vitiate the order of detention.
21. 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. Midhun P.P @ Kuttappi. 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/-
RAJA VIJAYARAGHAVAN V
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
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Sbna/
APPENDIX OF WP(CRL.) 440/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER
NO.DCKNR/16026/2024-SS1 DATED 04.02.2025
OF THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE PRELIMINARY ORDER
PASSED BY THE SUB DIVISIONAL MAGISTRATE,
THALASSERY, DATED NILL DAY OF
FEBRUARY,2025
Exhibit P3 . A TRUE COPY OF THE REPRESENTATION
DATED 28.02.2025 SUBMITTED BY THE DETENU
BEFORE THE 1ST RESPONDENT
Exhibit P4 . A TRUE COPY OF THE REPRESENTATION
DATED 28.02.2025 SUBMITTED BY THE
PETITIONER BEFORE THE 4TH RESPONDENT
Exhibit P5 A TRUE COPY OF THE POSTAL RECEIPT
EVIDENCING THE ISSUANCE OF EXT P4
