Kerala High Court
Abdul Rasaq P.S vs State Of Kerala on 8 July, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
WP (Crl.) No. 754 of 2025 1 2025:KER:49704
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TUESDAY, THE 8TH DAY OF JULY 2025 / 17TH ASHADHA, 1947
WP(CRL.) NO. 754 OF 2025
PETITIONER:
ABDUL RASAQ P.S.
AGED 42 YEARS
S/O. MUHAMMEDKUNJI, PARAKKAL HOUSE,
PAPPINISSERY, KANNUR DISTRICT, PIN - 670561
BY ADVS.
SHRI.E.A.HARIS
SHRI.M.A.AHAMMAD SAHEER
SRI.MUHAMMED YASIL
SMT.AAGI JOHNY
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT,
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 DISTRICT POLICE CHIEF, KANNUR
OFFICE OF THE DISTRICT POLICE CHIEF,
KANNUR, KERALA, PIN - 670002
3 DEPUTY INSPECTOR GENERAL, KANNUR
RANGE OFFICE, KANNUR, PIN - 670001
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4 STATION HOUSE OFFICER
VALAPATTANAM POLICE STATION, VALAPATTANAM,
KANNUR, PIN - 670010
BY ADVS.
PUBLIC PROSECUTOR
ADDL.DIRECTOR GENERAL OF PROSECUTION
SRI. K.A. ANAS, PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR FINAL
HEARING ON 02.07.2025, THE COURT ON 08.07.2025 DELIVERED THE
FOLLOWING:
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JUDGMENT
Raja Vijayaraghavan V, J.
This Writ Petition is filed by the petitioner challenging the order of
externment passed by the 3rd respondent, in exercise of powers under Section 15
of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to
as the "KAA(P) Act" for brevity).
2. The records placed before this Court reveal that the impugned
action was initiated on account of the alleged involvement of the petitioner in
seven criminal cases, namely:
a) Crime Nos. 262 of 2019 and 1229 of 2019 of Valapattanam Police Station,
both registered under Section 20 of the Kerala Protection of River Banks
and Regulation of Removal of Sand Act, 2001 ("KPRB & RRS Act"),
b) Crime No. 546 of 2022 of Kannapuram Police Station, registered inter alia
under Sections 283, 427, 120(B) r/w. Section 34 of the IPC and Section 3
r/w. Section 5 of the Prevention of Damage to Public Property Act, 1984
("PDPP Act"),
c) Crime No. 547 of 2022 of Kannapuram Police Station, similarly registered
under the IPC and PDPP Act,
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d) Crime No. 999 of 2023 of Valapattanam Police Station, registered under
Section 379 of the IPC and Section 20 of the KPRB & RRS Act,
e) Crime No. 545 of 2022 of Kannapuram Police Station, registered under
Sections 143, 147, 149, and 153 of the IPC and Sections 4 and 5 of the
Explosive Substances Act, 1908, and
f) Crime No. 571 of 2024 of the Valapattanam Police Station, registered
under Sections 121(1), 109(1), and 249 r/w. Section 3(5) of the Bharatiya
Nyaya Sanhita (BNS), 2023.
3. A proposal was submitted by the District Police Chief, Kannur, on
16.12.2024, before the 3rd respondent seeking initiation of proceedings under
Section 15 of the KAA(P) Act, on account of his involvement in the above 7 crimes
and by stating that he has acquired the qualification of being classified as a
"known goonda". A show cause notice was issued, and the petitioner was heard.
Thereafter, the impugned order was issued on 12.02.2025, interdicting the
petitioner from entering the limits of the Kannur Revenue District. He was also
directed to disclose his place of residence and to report to the jurisdictional Police
Station.
4. Sri. M.A. Ahammad Saheer, the learned counsel appearing for the
petitioner, advanced the following submissions:
(i) It is submitted that there is an unexplained and unreasonable delay in
passing the externment order. The last prejudicial activity was on
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26.07.2024, the petitioner had surrendered on 21.11.2024, and he was
released on bail. The final report was laid on 30.11.2024, but the proposal
for externment (Ext.P1) was submitted only on 16.12.2024.
(ii) It is contended that in two cases, Crime Nos. 262 of 2019 and 1229 of
2019, the petitioner had pleaded guilty and was only fined. However,
before the 3rd respondent, only the case status reports were produced.
The learned counsel refers to the case status printouts and submits that
the fine of Rs.8,000/- was manually inserted into the order. The fact that
the petitioner had pleaded guilty and was not convicted after trial was
allegedly not taken into account by the externment authority.
(iii) The learned counsel highlights that proceedings under Section 126 of the
BNS were also initiated against the petitioner. However, these proceedings
were quashed by this Court as per Ext.P4 judgment passed by a learned
Single Judge of this court.
(iv) Lastly, it is submitted that certain documents supplied to the petitioner
were illegible, thereby prejudicially affecting his ability to effectively
respond to the show-cause notice and present his defence. A statement
has been filed by the respondents denying these allegations.
5. In response, Sri. K.A. Anas, the learned Public Prosecutor, submitted
that seven criminal cases were taken into account to classify the petitioner as a
WP (Crl.) No. 754 of 2025 6 2025:KER:49704
"known goonda", including three under the Sand Act, two under the PDPP Act,
and one under the Explosive Substances Act. Regarding the last alleged incident,
the petitioner was arrested on 21.11.2024 and released on 05.12.2024. The
sponsorship report was submitted promptly on 16.12.2024. It is further submitted
that a show cause notice was issued on 25.01.2025, the petitioner was heard on
05.02.2025, and the externment order was issued on 12.02.2025. Though the
original externment was for one year, the Advisory Board, after due consideration,
reduced the period to six months. On the issue of conviction on a plea of guilty,
the learned Public Prosecutor points out that under Section 264 of the Bharatiya
Nagarik Suraksha Sanhita (BNSS), 2023, which corresponds to Section 241 of the
Cr.P.C., even a plea of guilty constitutes a valid conviction. Reliance is placed on
the decision in Sameena Beevi v. State of Kerala.1 Regarding the alleged
delay, it is contended that there was no real delay, since the petitioner was in
custody until 05.12.2024, and the report was submitted just 10 days later.
Reference is made to the judgment in Stalin C.V v. State of Kerala & Others2,
wherein this Court observed that some degree of delay is unavoidable given the
requirement of adhering to principles of natural justice before passing an
externment order. As to the allegation of illegible documents, it is submitted that
no such grievance was raised by the petitioner at any stage, including before the
Advisory Board. Even otherwise, relying on the judgment in Binoy @ Gillappi v.
[2014 (4) KLT 874]
[2011 (1) KHC 852]
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State of Kerala & Others3, it is submitted that proceedings under Section 15 of
the KAA(P) Act are less stringent than those under Section 3(1) of the said Act.
Finally, it is submitted that the quashing or initiation of proceedings under Section
107 of the Cr.P.C. has no bearing on the validity of externment proceedings under
the KAA(P) Act, the objective of which is to prevent the externee from continuing
with prejudicial activities.
6. We have carefully considered the submissions advanced and have
gone through the records.
7. The first contention advanced by the learned counsel is that there is
no proximate or live link between the order of externment and the last prejudicial
act. As stated earlier, the last prejudicial act committed by the petitioner was on
26.07.2024. In the externment order, all that is stated is that there is no
appreciable delay in submitting the report of sponsorship, which was on
16.12.2024. The show cause notice was issued on 25.01.2025, and the petitioner
was heard on 05.02.2025. Finally, the orders were passed on 12.02.2025. In
other words, the sponsorship report was made only after 4½ months, and the
externment order was issued after more than 6 months. Under Section 15 of the
KAA(P) Act, the maximum period of detention that can be undergone by the
externee is only up to one year. It is also interesting to note that the Advisory
Board interfered with the order of externment and reduced the period to 6
[2018 (1) KHC 348]
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months, having regard to the facts and circumstances. Viewed in that light, the
long period of more than six months from the last prejudicial act to the passing of
the order and more than four months in submitting the report of sponsorship
cannot be said to be a reasonable delay. Much more alacrity ought to have been
shown if the intention was to prevent the petitioner from perpetrating the
offences.
8. There is yet another matter. In the case on hand, the 3rd
respondent imposed the maximum period and stated that the same was required
to deter the petitioner from perpetrating prejudicial activities. The Hon'ble
Supreme Court in Deepak S/o. Laxman Dongre v. State of Maharashtra
and Others4, while considering the issue as to application of mind while
imposing the maximum period of externment in a matter concerning an order
passed under the Maharashtra Police Act, 1951, held as under:
"On a plain reading of Section 58, it is apparent that while
passing an order under Section 56, the competent authority must
mention the area or District or Districts, in respect of which the
order has been made. Moreover, the competent authority is required
to specify the period for which the restriction will remain in force.
The maximum period provided for is of two years. Therefore, an
application of mind on the part of the competent authority is
required for deciding the duration of the restraint order under
Section 56. On the basis of the objective assessment of the material
on record, the authority has to record it subjective satisfaction that
the restriction should be imposed for a specific period. When the
[(2023) 14 SCC 707]
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competent authority passes an order for the maximum permissible
period of two years, the order of externment must disclose an
application of mind by the competent authority and the order must
record its subjective satisfaction about the necessity of passing an
order of externment for the maximum period of two years which is
based on material on record. Careful perusal of the impugned order
of externment dated 15th December, 2020 shows that it does not
disclose any application of mind on this aspect. It does not record
the subjective satisfaction of respondent No.2 on the basis of
material on record that the order of externment should be for the
maximum period of two years. If the order of externment for the
maximum permissible period of two years is passed without
recording subjective satisfaction regarding the necessity extending
the order of externment to the maximum permissible period, it will
amount to imposing unreasonable restrictions on the fundamental
right guaranteed under clause (d) of Article 19(1) of the
Constitution of India.
9. As held by the Apex Court, when the competent authority passes an
order for the maximum permissible period, the order of externment must disclose an
application of mind by the competent authority and the order must record its
subjective satisfaction about the necessity of passing an order of externment for the
maximum period. If the order of externment for the maximum permissible period of
one year is passed without recording subjective satisfaction regarding the necessity
of imposing the maximum permissible period, it will amount to imposing
unreasonable restrictions on the fundamental right guaranteed under clause (d) of
Article 19(1) of the Constitution of India.
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10. A Division Bench of this Court in Dinchu Mohanan v. State Of
Kerala5 has held that the court is empowered to annul, amend, or confirm the
order of externment passed under Section 15(1) of the KAA(P) Act.
11. Having regard to the entire facts and circumstances, we are of the
view that the period of externment can be limited up to 08.07.2025. We also think it
expedient to impose certain conditions for limiting the period of externment, by
directing the petitioner to report before the Station House Officer, Valapattanam
Police Station, on all Saturdays between 10:00 a.m. and 11:00 a.m. till the period of
externment passed in terms of Ext. P3 is over.
Resultantly, Ext. P3 order is modified by reducing the period of externment
ordered as per Ext. P3 order passed by the 3rd respondent up to 08.07.2025. This
shall be subject to the further condition that the petitioner shall report before the
Station House Officer, Valapattanam Police Station, on all Saturdays between
10:00 a.m. and 11:00 a.m. till the period of externment under Ext. P3 is over.
The Writ Petition is allowed to the above extent.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
K.V. JAYAKUMAR,
APM JUDGE
[2015 (2) KHC 101]
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APPENDIX OF WP(CRL.) 754/2025
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE REPORT DATED 25.01.2025
SUBMITTED BY THE 4TH RESPONDENT BEFORE THE
2ND RESPONDENT
Exhibit P2 THE TRUE COPY OF THE SHOW CAUSE NOTICE DATED
25.01.2025 ISSUED BY THE 3RD RESPONDENT TO
THE PETITIONER
Exhibit P3 THE TRUE COPY OF THE ORDER DATED 12.02.2025
ISSUED BY THE 3RD RESPONDENT
Exhibit P4 THE TRUE COPY OF THE ORDER DATED 21.11.2024
IN CRL.M.C. NO. 9274 OF 2024 OF THIS HON'BLE
COURT
Exhibit P5 THE TRUE COPY OF THE CASE STATUS SERVED BY
THE 3RD RESPONDENT TO THE PETITIONER
Exhibit P6 THE TRUE COPY OF THE ORDER DATED 27.03.2025
IN O.P NO. 57 OF 2025 ON THE FILES OF
ADVISORY BOARD UNDER THE KERALA ANTI SOCIAL
ACTIVITIES PREVENTION ACT 2007
