Kerala High Court
Viswapalan vs State Of Kerala on 15 July, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
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W.P(Crl).No.660/2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
TUESDAY, THE 15 DAY OF JULY 2025 / 24TH ASHADHA, 1947
WP(CRL.) NO. 660 OF 2025
PETITIONER:
VISWAPALAN, AGED 61 YEARS, S/O KUTTAPPAN,
VATHIKKAD VEETTIL, AVALOOKUNNU P.O, ARAYAD PANCHAYAT,
WARD 2, ALAPPUZHA DISTRICT,, PIN - 688006
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, ALAPPUZHA DISTRICT, PIN - 688001
3 THE DISTRICT POLICE CHIEF,
CIVIL STATION, ALAPPUZHA DISTRICT,, PIN - 688001
4 THE CHAIRMAN, ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD,
VIVEKANANDA NAGAR, ELAMAKKARA, ERNAKULAM - 682026
5 THE SUPERINTENDENT OF JAIL,
CENTRAL JAIL, VIYYUR, THRISSUR DISTRICT, PIN - 670004
BY ADVS.
PUBLIC PROSECUTOR:ADV.ANAS K A
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
01.07.2025, THE COURT ON 15.07.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
K. V. Jayakumar, J.
The petitioner is the father of Sri.Vinu @ Temper Vinu ['detenu' for the sake
of brevity]. He challenges Ext.P1 detention order dated 13.01.2025 passed by the
2nd respondent, District Collector, Alappuzha, under Section 3(1) of the Kerala
Anti-Social Activities (Prevention) Act, 2007 ['KAA(P) Act' for the sake of brevity].
The detenu was classified as 'Known Rowdy' under section 2(p)(iii) of the KAA(P)
Act.
2. The records would reveal that the detenu has previously been
involved in seven cases, the details of which are as follows:-
Sl. Crime No. Police Station Crime Date Offences Involved under various Present Status
No. sections of the case
1 1176/2020 Alappuzha 09.12.2020 294(b), 323, 324 & 34 IPC Pending Trial
North
2 997/2021 Alappuzha 20.12.2021 294(b), 452, 427, 324, 326, 307, Pending Trial
North 212 & 34 IPC
3 336/2023 Alappuzha 28.03.2023 447, 427, 506(i) & 34 IPC Pending Trial
North
4 337/2023 Alappuzha 28.03.2023 323, 201, 324 & 34 IPC Pending Trial
North
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5 392/2023 Punnapra 02.05.2023 294(b), 341, 323 & 34 IPC Pending Trial
6 541/2023 Alappuzha 17.05.2023 447, 323, 341, 308, 506(ii) & 34 Pending Trial
North IPC
7 945/2024 Mannancherry 17.09.2024 126(2), 351(3), 296(b), 115(2), Pending Trial
324(2)& 3(5) of BNS
3. Apart from the above-mentioned cases, he was involved in six other
cases which were not reckoned for the passing of Ext.P1 order. Ext.P1 is the
detention order against the detenu. Prior to the passing of Ext.P1 order, an
externment order was passed against the detenu for the period from 24.04.2022
to 23.10.2022. After the said period, the detenu was implicated in five cases.
Altogether, there were seven cases considered for booking the detenu as 'Known
Rowdy'. It is averred in the petition that all the cases are under trial. The proposal
was on 05.10.2024.
4. The last prejudicial activity alleged against the detenu is Crime
No.945/2024 of Mannancherry Police Station, registered alleging the commission
of offences punishable under Sections 126(2), 351(3), 296(b), 115(2), 324(2)&
3(5) of BNS. The date of the alleged occurrence was 16.09.2024. The FIR was
registered on 17.09.2024. The detenu surrendered before the concerned Court on
10.10.2024, and he was released on bail on the same day. The allegation is that,
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due to enmity towards the Jail Warden, the detenu assaulted and beat him on the
cheek while in custody. The final report was filed on 30.10.2024. The detenu was
implicated as accused No.2.
5. It is stated in the writ petition that the dispute is purely personal in
nature and does not amount to a violation of public order. Ext.P1 order was
confirmed by the 1st respondent vide order dated 29.03.2025.
The submissions of the learned counsel for the petitioner:
6. Sri. M.H.Hanis, learned counsel for the petitioner, submitted that
there is a huge gap between the last prejudicial act and the passing of Ext.P1
detention order. The last prejudicial activity alleged against the detenu is Crime
No.945/2024 of Mannancherry Police Station. It was registered for commission of
offences punishable under Sections 126(2), 351(3), 296(b), 115(2), 324(2)& 3(5)
of BNS. The date of the alleged occurrence was 16.09.2024. The FIR was
registered on 17.09.2024. The detenu surrendered before the Court and was
released on bail on 10.10.2024. The detenu is arrayed as accused No. 2 in that
matter. Ext.P1 order was passed on 13.01.2025. Hence, the time gap between
the last prejudicial activity and the passing of the detention order is about four
months. There is a delay of three months and four days after executing the bail in
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the last prejudicial act. More than 50% of the period of detention has expired at
the time of passing and execution of Ext.P1 order. No plausible explanation is
offered for the delay caused. The learned counsel urged that the inordinate delay
of about four months is fatal and such delay vitiates the proceedings. It is pointed
out that the delay itself would defeat the very purpose and object of the Act.
Submissions of the learned Public Prosecutor
7. The learned Public Prosecutor submitted that the detenu is involved
in seven criminal cases, including the attempt to commit culpable homicide, and
was in judicial custody for long periods. He has violated the conditions of bail and
is involved in several anti-social activities. There was every possibility that the
detenu would indulge in anti-social activities in the near future. Ext.P1 detention
order has been passed after proper application of mind and arriving at the
objective and subjective satisfaction of the detaining authority. The last prejudicial
act of the detenu was on 16.09.2024, and thereafter, a recommendation was
submitted by the District Police Chief without delay. Additional reports concerning
the detenu's bail granted on 10.10.2024 were filed on 03.01.2025, and the final
report was submitted on 30.10.2024. The delay in passing the detention order is
reasonable and has been properly explained in Ext. P1 detention order.
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8. We have carefully considered the submissions of the learned counsel
for the petitioner and the learned Public Prosecutor. The first submission is that
there is no rational nexus between the last prejudicial act and the detention order.
The inordinate and unexplained delay of about four months between the last
crime and the passing of the detention order is fatal and would vitiate the order.
9. In T.A.Abdul Rahman v. State of Kerala,1 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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10. The unexplained delay of about four months in passing the detention
order and the last prejudicial act is fatal in our view and would vitiate the order.
Thus, we find merit in the contention advanced by the learned counsel for the
petitioner.
11. The second submission of the learned counsel for the petitioner is
that there was a delay of 23 days in passing the order on the representation
submitted by the counsel for the detenu to the 4th respondent Ext.P3 is the order
dated 03.04.2025, whereby the 1st respondent rejected the representation
submitted by the learned counsel for the detenu.
12. The learned counsel for the petitioner has placed reliance on the
judgment in Dr.Rahamatulla v. State of Bihar and Another2. In the said
judgment, the Apex Court observed as under:
"4. The normal rule of law is that when a person commits an
offence or a number of offences, he should be prosecuted and
punished in accordance with the normal appropriate criminal law;
but if he is sought to be detained under any of the preventive
detention laws as may often be necessary to prevent further
commission of such offences, then the provisions of Article
22(5) must be complied with. Sub-Article (5) of Article 22 reads:
"When any person is detained in pursuance of an order made
under any law providing for preventive detention, the authority
making the order shall, as soon as may be, communicate to such
1981 KHC 719
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person the grounds on which the order has been made and shall
afford him the earliest opportunity of making a representation
against the order."
This Sub-Article (5) provides, inter alia, that the detaining
authority shall as soon as may be communicate the grounds of
detention and shall afford him the earliest opportunity of making a
representation against the order. The opportunity of making a
representation is not for nothing. The representation, if any,
submitted by the detenu is meant for consideration by the
Appropriate Authority without any unreasonable delay, as it
involves the liberty of a citizen guaranteed by Article 19 of the
Constitution. The non-consideration or an unreasonably belated
consideration of the representation tantamounts to
non-compliance of Sub-Article (5) of Article 22 of the Constitution.
The law is well-settled that in case of preventive detention of a
citizen, the obligation of the appropriate government is two-fold:
(i) to afford the detenu the opportunity to make a representation
and to consider the representation which may result in the release
of the detenu, and (ii) to constitute a Board and to communicate
the representation of the detenu along with other materials to the
Board to enable it to form its opinion and to obtain such opinion.
The former is distinct from the latter. As there is a two-fold
obligation of the appropriate government, so there is a two-fold
right in favour of the detenu to have his representation considered
by the appropriate government and to have the representation
once again considered by the Government in the light of the
circumstances of the case considered by the Board for the purpose
of giving its opinion (see 1979 (2) SCR 315: AIR 1979 SC 420) and
1970 (1) SCR 543 : AIR 1970 SC 97]
5. In the instant case, the State Government did not discharge the
first of the two-fold obligation and waited till the receipt of the
Advisory Board's opinion. There was, as pointed out above, an
unexplained period of twenty-four days of non-consideration of the
representation. This shows there was no independent
consideration of the representation by the State Government. On
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the contrary they deferred its consideration till they received the
report of the Advisory Board. This is clear non-compliance
of Article 22(5) as interpreted by this Court. The order of
detention is, therefore liable to be quashed on this ground alone."
13. In Rahmattulla's case (supra), the Apex Court observed that,
there is a two-fold right in favour of the detenu to have his representation
considered by the appropriate Government and to have the representation once
again considered by the Government in the light of the circumstances of the case
considered by the Board to give its opinion.
14. The learned counsel for the petitioner submitted that the
representation of the detenu to the 4th respondent was rejected vide Ext.P3 order.
On perusal of Ext.P3 order, it is seen that an undated representation was
submitted by Adv. Manu Harshakumar to the 4th respondent Advisory Board.
However, a copy of the said representation was not produced, nor were any
documents placed on record to establish the date of its submission. It is
contended that there was a delay of 23 days in considering the representation.
However, in the absence of any proof regarding the date of submission, we are
unable to accept the said contention.
15. In the light of the above discussion, we are of the view that the
petitioner is entitled to succeed in this writ petition.
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In the result, this writ petition is allowed, and Ext.P1 order of detention is
set aside. The Superintendent of Central Prison, Thiruvananthapuram, is directed
to release the detenu, Sri. Vinu @ Temper Vinu, S/o.Viswapalan, Vathikkad Veettil,
Avalookunnu P.O., Arayad Panchayat, Ward 2, Alappuzha District 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, Thiruvananthapuram, forthwith.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
Sbna/
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APPENDIX OF WP(CRL.) 660/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF ORDER NO. S.C 6-9201/2024 DATED
13.01.2025 OF THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE G.O.(RT)NO.1101/2025/HOME
DATED 29.03.2025 OF THE 1ST RESPONDENT
Exhibit P3 A TRUE COPY OF THE ORDER DATED 03.04.2025
PASSED BY THE 1ST RESPONDENT
