Kerala High Court
Fathima Habeeba vs State Of Kerala on 5 June, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:39391
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 5TH DAY OF JUNE 2025 / 15TH JYAISHTA, 1947
WP(CRL.) NO. 551 OF 2025
PETITIONER:
FATHIMA HABEEBA
AGED 28 YEARS
W/O MUNAVAR FIROOSE, KUMBALAPURATH HOUSE,
MOTTAMBRAM, KANNUR, PIN - 670304
BY ADV. SMT.K.REEHA KHADER
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,
HOME & VIGILANCE DEPARTMENT, GOVERNMENT SECREATRIAT,
THIRUVANANTHAPURAM-695001
2 THE DEPUTY INSPECTOR GENERAL OF POLICE
KANNUR RANGE, KANNUR - 670001
BY ADV.
SRI.K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
04.06.2025, THE COURT ON 05.06.2025 DELIVERED THE FOLLOWING:
WP(Crl)No. 551 OF 2025 :2:
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JUDGMENT
Jobin Sebastian, J.
This is a writ petition filed under Article 226 of the Constitution of
India, challenging Ext.P1 order of externment dated 11.02.2025 passed
against the petitioner under Section 15(1)(a) of the Kerala Anti-Social
Activities (Prevention) Act, 2007 [KAA(P) Act for the sake of brevity]. By
the said order, the petitioner was interdicted from entering the limits of
Kannur Revenue District for a period of one year from the date of the
receipt of the order.
2. The records available before us reveal that, it was after
considering the recurrent involvement of the petitioner in criminal
activities, the District Police Chief, Kannur City submitted a proposal for
initiation of proceedings against the petitioner under Section 15(1)(a) of
the KAA(P) Act, 2007 before the authorised officer, the Deputy Inspector
General of Police, Kannur Range. For initiation of the said proceedings,
the petitioner was classified as a "known goonda" as defined under
Section 2(o)(ii) of the KAA(P) Act, 2007.
3. The authority considered two cases in which the petitioner
was involved for passing the order of externment. The case registered
against the petitioner with respect to the last prejudicial activity is crime
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No.25/2024 of Women Police Station, Kannur, alleging commission of
offences punishable under Sections 21(b) r/w 8(c) and 29 of the Narcotic
Drugs and Psychotropic Substances (NDPS) Act.
4. Heard Smt. K.Reeha Khader, 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
Ext.P1 order was passed on improper consideration of facts and without
proper application of mind. According to the counsel, Ext.P1 order was
passed in a casual manner, and it was without assigning any reason, the
jurisdictional authority passed an order of externment for a maximum
period of one year. The learned counsel urged that when the maximum
period of externment was ordered, it was incumbent upon the authority
to show the reasons for the same. Nevertheless, no convincing reason,
whatsoever, has been assigned by the authority for passing the maximum
period of externment. The learned counsel further submitted that the
petitioner, a lady with a two-year-old child, was forced to reside outside
her district due to the impugned order. According to the counsel,
pursuant to the order, the petitioner took a rented house at a place called
Chittariparambu and now she finds it very hard to meet both the ends
together and to take care of her two-year-old child who suffers from
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various ailments. According to the counsel, the petitioner is unable to
take up any job as there is nobody to look after her child in her absence.
6. Per contra, the learned Government Pleader submitted that
the impugned order was passed by the jurisdictional authority after
proper application of mind and upon arriving at the requisite objective as
well as subjective satisfaction. According to the learned Government
Pleader, there is nothing wrong in passing an order of externment for one
year if the circumstances warrant it, and therefore, no interference is
required in the impugned order.
7. A perusal of the records reveals that it was after considering
the involvement of the petitioner in two cases registered under NDPS
Act, the proceedings under KAA(P) Act were initiated against her. Out of
the two cases considered by the jurisdictional authority, the case
registered with respect to the last prejudicial activity is crime No.25/2024
of Women Police Station, Kannur, alleging commission of offences
punishable under Sections 21(b) r/w 8(c) and 29 of the NDPS Act. The
petitioner was arrested in the said case on 04.10.2024 and subsequently,
she was released on bail on 21.11.2024. It was on 17.01.2025, the
District Police Chief, Kannur City, mooted the proposal for initiation of
proceedings under KAA(P) Act against the petitioner. Thereafter, on
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25.01.2025, the jurisdictional authority issued a notice to the petitioner
calling upon her to show cause as to why an order of externment should
not be passed against her. In the said notice, in order to afford the
petitioner an opportunity of being heard, she was further directed to
appear in person before the jurisdictional authority on 05.02.2025. In
response to the said notice, the petitioner appeared before the
jurisdictional authority on 05.02.2025. It was after considering the
written reply submitted by the petitioner and hearing her in detail, Ext.P1
order was passed. The sequence of events narrated above clearly reveals
that there is no delay either in mooting the proposal or in passing Ext.P1
order. Similarly, the records reveal that the impugned order was passed
after scrupulously complying with the procedural safeguards provided
under the KAA(P) Act.
8. The main dispute that revolves around this writ petition is
with respect to the period of externment ordered by the jurisdictional
authority. As already stated, the main grievance of the petitioner is that,
it was without assigning any reason, the maximum period of externment
was ordered. While considering the said contention, it is to be noted that
the scope of interference by a court of law in the subjective as well as
objective satisfaction arrived on by the jurisdictional authority which
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passed an order of externment is too limited. However, an order of
externment certainly has a heavy bearing on the personal as well as
fundamental rights of an individual. Such an order would certainly
deprive a citizen concerned of his fundamental right of free movement
throughout the territory of India. By such an order, she is prevented
from entering her house and from residing with her family members
during the subsistence of the order as well. Therefore, while prescribing
the maximum period of externment, the jurisdictional authority must
apply its mind properly, and the order must reflect the necessity of
passing the maximum period of externment. In other words, the order
should provide reasons for invoking the maximum period of externment.
In short, the jurisdictional authority shall exercise its power cautiously,
though the authority is clothed with the power to order a maximum
period of externment, subject to the restriction that it shall not be more
than one year.
9. The Hon'ble Supreme Court in Deepak S/o Laxman
Dongre v. State of Maharashtra and Others [(2023) 14 SCC
707], while dealing with a preventive detention order passed under the
Maharashtra Police Act, 1951 held that:
"On a plain reading of Section 58, it is apparent that while
passing an order under Section 56, the competent authority must
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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 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."
10. Keeping in mind the above propositions of law, while coming
to the impugned order, it can be seen that the reasons for imposing the
maximum period of externment is seen specifically mentioned. In the
order, it is stated that the petitioner has involved in the last prejudicial
activity regardless of the bail conditions imposed on her in the bail order
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while granting bail in the last but one case. Moreover, it is mentioned
that the action taken under Section 126 of BNS was also not effective to
prevent the externee from repeating criminal activities and that is why
the maximum period of externment was ordered. Therefore, we are of
the view that the petitioner could not be heard to say that the maximum
period of externment was ordered by the jurisdictional authority without
proper application of mind and without assigning sufficient reasons.
11. However, from the submission made by the learned counsel
for the petitioner, it is discernible that the petitioner is having a
two-year-old child. Similarly, in the impugned order, it is mentioned that,
in the reply submitted by the petitioner to the show cause notice issued
by the jurisdictional authority, it is mentioned that her two-year-old child
suffers various ailments and is under medication. Furthermore, the reply
states that she has no acquaintances or relatives in other districts and
being forced to reside elsewhere would adversely affect both her and her
child's lives. As already stated, the learned counsel for the petitioner
further submitted that the petitioner is unable to take up any job as there
is nobody to look after her child in her absence. We also find some merit
in the submission made by the learned counsel, highlighting the
vulnerability of the petitioner and her child.
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12. This Court in Dinchu Mohanan v. State of Kerala and
another [2015 (2) KHC 101] 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. Given the circumstances of the case, we are of
the view that it is just and proper to modify the order passed under
Section 15(1)(a) of the KAA(P) Act to one under Section 15(1)(b) of the
Act.
In the result, the writ petition is allowed in part. Ext.P1 order is
modified to one under Section 15(1)(b) of the KAA(P) Act, and the
petitioner is directed to appear before the Station House, Women Police
Station, Kannur, on every Saturday between 10.00 a.m. and 12.00 p.m.
for one year from the date of Ext. P1 order.
Sd/-
P.B. SURESH KUMAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
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APPENDIX OF WP(CRL.) 551/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER NO. A3-1081/2025/KR
ISSUED BY THE 2ND RESPONDENT DATED
11.2.2025.
Exhibit P2 TRUE COPY OF THE APPLICATION SUBMITTED
BEFORE THE SUB DIVISIONAL MAGISTRATE COURT
THALIPARAMBA DATED 15.11.2024.
