Kerala High Court
Indu K.R vs State Of Kerala on 10 March, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:19878
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 10TH DAY OF MARCH 2025 / 19TH PHALGUNA, 1946
WP(CRL.) NO. 93 OF 2025
PETITIONER:
INDU K.R., AGED 39 YEARS, W/O SHYAM KUMAR,
KOLOTTHUPARAMBIL VEEDU, VTC: MALAYATTOOR, MALAYATTOOR
P.O., ALUVA, ERNAKULAM, PIN - 683587
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
2 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE,
CIVIL STATION, ERNAKULAM DISTRICT, PIN - 682030
3 THE DISTRICT POLICE CHIEF,
ERNAKULAM,, PIN - 682035
W.P.(Crl.) No. 93 of 2025 :2: 2025:KER:19878
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 COME UP FOR
ADMISSION ON 06.03.2025, THE COURT ON 10.03.2025 DELIVERED
THE FOLLOWING:
W.P.(Crl.) No. 93 of 2025 :3: 2025:KER:19878
JUDGMENT
Jobin Sebastian, J.
The petitioner is the wife of Shyam Kumar ('detenu' for the sake of
brevity) and her challenge in this Writ Petition is directed against Ext.P1
order of detention dated 14.11.2024 passed by the 2nd respondent under
Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007
('KAA(P) Act' for brevity). After considering the opinion of the Advisory
Board, the said order of detention was confirmed by the Government vide
order dated 22.01.2025 and the detenu was ordered to be detained for a
period of six months from the date of execution of the order.
2. The records reveal that a proposal was submitted by the
District Police Chief, Ernakulam Rural on 17.10.2024 seeking initiation of
proceedings against the petitioner's husband 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
goonda' as defined under Section 2(o)(ii) of the KAA(P) Act. Altogether six
cases in which the petitioner's husband was involved have been
considered by the detaining authority for passing the impugned order of
detention and the details of the said cases are given below:-
W.P.(Crl.) No. 93 of 2025 :4: 2025:KER:19878
Sl. Offences involved Present
Crime No. Police Station Crime Date status of the
No. under Sections
case
468, 471, 212, 307
r/w 34 IPC & 3(a) of
1 885/2020 Kuruppampadi 13.07.2020 Explosive Substances Pending trial
Act, 1908 & 27 of
Arms Act
143, 144, 147, 148,
Kalady 323, 324, 307 r/w
271/2021 07.04.2021 Pending trial
2 149, 201 & 212 of
IPC
447, 448, 506, 427
3 279/2021 Kalady Pending trial
07.04.2021 r/w 34 IPC
341, 294(b), 506,
Kalady Pending trial
4 888/2022 02.10.2022 323 IPC
294(b), 506, 448,
354(A)(I)(IV) r/w 34 Pending trial
5 296/2024 Kalady 07.01.2024
IPC
8(c), 20(b)(ii)B & 29
6 1294/2024 Perumbavur Chargesheeted
08.09.2024 of NDPS Act
3. The records further reveal that the detenu is involved in 25
cases altogether. However, for the purpose of passing the detention order,
which is under challenge in this writ petition, the jurisdictional authority
reckoned only the abovementioned six cases, which were registered within
the last seven years preceding the date of the detention order. Out of the
said six cases, the case registered with respect to the last prejudicial
activity is crime No.1294/2024 of Perumbavur Police Station, alleging the
commission of offences punishable under Sections 8(c), 20(b)(ii)B & 29 of
W.P.(Crl.) No. 93 of 2025 :5: 2025:KER:19878
NDPS Act and the detenu is arrayed as the 1st accused in the said case.
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
Ext.P1 order is passed without proper application of mind and without
adhering to the procedural formalities mentioned under the KAA(P) Act.
The learned counsel urged that there is non-compliance with the
procedure mentioned under Section 7(2) of the KAA(P) Act. According to
the counsel, though the grounds of detention, specifying the details of the
cases reckoned for passing the impugned order were furnished to him, the
legible copies of the seizure mahazar and final report pertaining to the
case registered with respect to the last prejudical activity were not served
on him. According to the counsel, the said lapse on the part of the
detaining authority seriously prejudiced the detenu as he could not file an
effective representation against the detention order before the
Government. Moreover, it was contended that in the impugned order, the
compelling circumstances to pass an order of detention against the detenu
who has already been in judicial custody in connection with the last case
registered against him were not adverted to. The learned counsel further
submitted that the Government failed to consider the representation
submitted by the detenu forthwith after obtaining the opinion of the
W.P.(Crl.) No. 93 of 2025 :6: 2025:KER:19878
Advisory Board. Moreover, it was urged that though in the impugned
order it is mentioned that proceedings under KAA(P) Act were earlier
initiated against the detenu, the copies of the said proceedings were not
served on him. According to the counsel, apart from the abovesaid
procedural lapses, there is a delay of two months and seven days in
passing the impugned order after the last prejudicial activity rendering the
live link between the last prejudicial activity and the purpose of detention
snapped.
6. In response, the learned Government Pleader submitted that
the order of detention was passed after complying with all the necessary
legal formalities and after proper application of mind. According to the
learned Government Pleader, there is no delay in mooting the proposal for
initiation of proceedings as well as in passing the order of detention.
Moreover, he would submit that the copies of all the relevant records and
the grounds of detention were duly 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. It
was further submitted that the detenu is a history-sheeter involved in 25
criminal cases and it was after taking note of his recurrent involvement in
criminal activities, the sponsoring authority mooted the proposal for the
initiation of proceedings against him under the KAA(P) Act. It was urged
W.P.(Crl.) No. 93 of 2025 :7: 2025:KER:19878
that, as the impugned order was passed by the jurisdictional authority
after arriving at the requisite objective as well as subjective satisfaction,
no interference is warranted.
7. From the rival contentions raised, it is decipherable that the
main dispute revolves around the non-compliance of the procedure
mentioned under Section 7(2) of the KAA(P) Act. Undisputedly, when a
person is arrested in pursuance of a detention order, it is obligatory on the
part of the arresting officer to supply a copy of the said order to the
detenu. Furthermore, Section 7(2) of the KAA(P) Act, makes it mandatory
that the grounds of detention shall be furnished to the detenu, specifying
the instances of offences with copies of relevant documents. Moreover,
the detenu must be apprised of his right to file representation against the
detention order before the Government as well as the Advisory Board.
Only when copies of relied-upon documents are duly served, the detenu
would get an effective opportunity to file a representation before the
Government and the Advisory Board.
8. As already mentioned the main contention taken by the
learned counsel for the petitioner is that out of the copies of the
relied-upon documents served on the detenu, the final report and the
seizure mahazar in the case registered with respect to the last prejudicial
activity were not legible and hence the petitioner was handicapped from
W.P.(Crl.) No. 93 of 2025 :8: 2025:KER:19878
filing an effective representation before the Government. In order to
substantiate the said contention, the copy of the seizure mahazar as well
as the final report allegedly obtained by the detenu is produced along with
the writ petition. On perusal of the said copy of the final report and
seizure mahazar, we are convinced that the final report is totally illegible
and the last three lines on every page of the seizure mahazar are illegible.
For further verification, we perused the original records produced by the
learned Government Pleader. A perusal of the original records of which
the copies were served on the detenu, which was made available to us by
the learned Government Pleader at the time of the hearing, shows that the
detenu had signed a written acknowledgment that he had received legible
copies of all documents. Moreover, the copy of the final report which finds
a place in the records produced by the Government Pleader shows that
the same is legible. However, the last three lines on every page of the
seizure mahazar are illegible. When there is a written endorsement in the
original records by the detenu that the copies of legible relevant records
were served on him, we are at a loss to understand how he can be heard
to say that the copies served on him were illegible. At this juncture, it
cannot go unnoticed that the court is not in a position to verify that the
copies produced along with the writ petition are the original copies
received by the detenu. Since the copy of the seizure mahazar found in
W.P.(Crl.) No. 93 of 2025 :9: 2025:KER:19878
the original records of the case is itself illegible, the only conclusion that
can be drawn is that the copy of the seizure mahazar received by the
detenu also would be illegible. However, we cannot accept the contention
of the petitioner that the copy of the final report submitted in the case
registered with respect to the last prejudicial activity, i.e., Crime
No.1294/2024 of Perumbavur Police Station, which is served on the detenu
was not legible particularly when the copy which finds a place in the
original records produced by the learned Government pleader for perusal
is legible. Moreover, the endorsement made by the detenu that he had
received readable copies of all relevant records also cut the root of the
contention of the petitioner that the copy of the final report served on him
was illegible.
9. More pertinently, in the representation submitted by the
detenu before the Government, it is nowhere stated that the copies of the
relied upon documents served on him were illegible and hence he was
handicapped in filing an effective representation. We are cognizant that
the right of a detenu to file an effective representation is a constitutional
right guaranteed under Article 22(5) of the Indian Constitution as well as a
statutory right under Section 7 of the KAA(P) Act. As the copy of the final
report as well as the other relied-upon documents served on the detenu is
legible, the fact that some portion of the copy of the seizure mahazar
W.P.(Crl.) No. 93 of 2025 :10: 2025:KER:19878
served on the detenu is illegible pales into insignificance, particularly when
the petitioner was capable to file an effective representation after going
through the final report submitted in the case. Moreover, a legible copy of
the First Information Statement which is a replica of the seizure mahazar
is seen duly served on the detenu. Therefore, merely because of the
reason that few lines in the seizure mahazar were not legible it cannot be
said that the same will hamper the petitioner from filing an effective
representation.
10. The Hon'ble Supreme Court in paragraph 20 of its judgment
in Usha Agarwal v. Union of India [2007 (1) SCC 295] observed as
hereunder:
" The entire issue of furnishing illegible copies is with
reference to the question whether the detenu's right to make an
effective representation against his detention is hampered by non
supply of legible copies. The High Court after examination of the
documents found that the detenu was not so hampered. Having
gone through the representations made by the detenu against his
detention we also find that he was in no way hampered by the fact a
few of the sheets, copies of documents were partly illegible".
11. In the case at hand, it is pertinent to note that this is not a
case where the investigation was going on while the impugned order of
detention was passed. On the contrary, the detention order was passed
after the filing of the final report. The copy of the final report, the First
Information Statement, and other relied-upon documents were duly
W.P.(Crl.) No. 93 of 2025 :11: 2025:KER:19878
served on the detenu. Furthermore, after obtaining the copies of those
documents, the detenu filed an effective representation before the
Government. Therefore, the fact that a few portions of the copy of the
seizure mahazar served on the detenu was illegible holds only little
significance. Therefore, we are of the view that the detenu's right to make
an effective representation against the detention order is in no way
hampered.
12. Another contention taken by the learned counsel for the
petitioner is that as the impugned order of detention was passed while the
petitioner was in judicial custody, it was incumbent upon the jurisdictional
authority to mention the compelling circumstances to detain the petitioner
preventively under KAA(P) Act, in the detention order. We do agree that it
was while the petitioner was in judicial custody in connection with the last
prejudicial activity the present detention order had been passed. Similarly,
it was after the rejection of his bail application the detention order was
passed. Therefore, as rightly pointed out by the learned counsel for the
petitioner, the compelling circumstances which necessitated the passing of
the detention order should be adverted to in the order. A perusal of the
impugned order clearly shows that while passing the order, the
jurisdictional authority was cognizant of the fact that the bail application
submitted by the detenu in the case registered with respect to the last
W.P.(Crl.) No. 93 of 2025 :12: 2025:KER:19878
prejudicial activity was dismissed by the court. Similarly in the order, it is
specifically mentioned that though the bail application was dismissed there
is every possibility of the detenu approaching the court again seeking bail
and there is a chance of granting bail. Notably, the allegation in the case
registered against the petitioner in connection with the last prejudicial
activity is that he was found in possession of 8.805 kg of Ganja for the
purpose of sale. As the quantity of contraband seized in the said case is
intermediate quantity, the rigor contained under Section 37 of the NDPS
Act to grant bail is not applicable in the last case registered against the
detenu. Therefore, the apprehension of the jurisdictional authority that
there is a chance for the petitioner to get bail is well founded. Therefore,
it is apparent that jurisdictional authority had clearly mentioned the
compelling circumstances which necessitated the passing of the detention
order against the petitioner notwithstanding the fact that the petitioner
was in judicial custody in connection with the last case registered against
him.
13. While coming to the contention of the learned counsel for the
petitioner that there is a delay in mooting the proposal as well as in
passing the impugned order, it is to be noted that the last prejudicial
activity was committed by the detenu on 08.09.2024. It was on
08.09.2024, the detenu was caught red-handed with the contraband and
W.P.(Crl.) No. 93 of 2025 :13: 2025:KER:19878
since then he has been in custody. It is true that the proposal for initiation
of proceedings under the KAA(P) Act was mooted by the District Police
Chief only on 17.10.2024. Therefore, there is a delay of one month and
eight days in forwarding the proposal by the sponsoring authority to the
jurisdictional authority. However, it cannot be overlooked that when the
proposal was forwarded, the detenu was in judicial custody in connection
with the last prejudicial activity. Therefore, there was no imminent chance
of repetition of criminal activities by the detenu and hence the short delay
in sponsoring is justifiable. Moreover, within 27 days of the report of the
sponsoring authority the order of detention has been passed. Therefore,
there is no delay in passing the impugned order and it cannot be said that
the live link between the last prejudicial activity and the purpose of
detention is snapped.
14. Another contention pressed into service by the learned
counsel for the petitioner is that there is an inordinate delay in considering
the representation submitted by the detenu, after receiving the opinion of
the Advisory Board. However, we cannot agree with the said contention
also. The records reveal that Ext.P3 representation was submitted by the
detenu to the Government on 24.12.2024. The opinion of the Advisory
Board was received by the Government on 14.01.2025. After considering
the opinion, the representation submitted by the detenu was rejected and
W.P.(Crl.) No. 93 of 2025 :14: 2025:KER:19878
the Government confirmed the detention order on 22.01.2025 itself,
though the decision of the Government was communicated to the detenu
only on 29.01.2025. Therefore, it cannot be said that there is any
inordinate delay in considering the representation submitted by the detenu
after receiving the opinion of the Advisory Board.
15. Another contention taken by the learned counsel for the
petitioner is that though in the impugned order it is mentioned that on an
earlier occasion, steps were taken to initiate proceedings under Section
15(1) of the KAA(P) Act against the detenu, the copy of the documents
with respect to the said proceedings was not served on the detenu. While
considering the said contention it is to be noted that, in the order, it is
mentioned that on an earlier occasion, a report was submitted to the
Deputy Inspector General, Ernakulam Range for initiation of proceeding
under Section 15(1) of the KAA(P) Act. Only a passive reference to the
earlier proceedings is seen made in the impugned order. Moreover, in
Ext.P1 detention order it is specifically mentioned that the said
proceedings were dropped in the initial stage itself considering the
recurring involvement of the detenu in criminal activities and on a finding
that proceedings under Section 15(1) are insufficient to restrain him from
repeating criminal activities. Therefore, it cannot be said that the records
in the said proceedings have any bearing on the present proceedings.
W.P.(Crl.) No. 93 of 2025 :15: 2025:KER:19878
Similarly, the records in the said proceedings were not relied on by the
detaining authority in passing the impugned order. Therefore, non-service
of the records of the said proceedings will in no way prejudice the detenu.
In short, the contention of the learned counsel in the above regard is a
feeble one and is only liable to be discarded.
16. From a perusal of the records, we are satisfied that all the
necessary procedural requirements before passing an order under Section
3(1) of the KAA(P) Act have been scrupulously complied with in this case.
We are further satisfied that the competent authority passed the detention
order after thoroughly verifying all the materials placed by the sponsoring
authority and after arriving at the requisite objective and subjective
satisfaction. Therefore, it cannot be said that the order passed under
Section 3(1) of the KAA(P) Act is vitiated in any manner.
In view of the discussion above, we hold that the petitioner has not
made any case for interference. Hence, the writ petition stands dismissed.
Sd/-
P.B. SURESH KUMAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ncd
W.P.(Crl.) No. 93 of 2025 :16: 2025:KER:19878
APPENDIX OF WP(CRL.) 93/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER
NO.DCEKM/10703/2024-M7 DATED 14.11.2024 OF
THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE DOCUMENTS SUPPLIED TO THE
DETENU AT THE TIME OF HIS DETENTION
Exhibit P3 A TRUE COPY OF THE REPRESENTATION DATED
24.12.2024 SUBMITTED BY THE PETITIONER BEFORE
THE 1ST RESPONDENT
Exhibit P4 A TRUE COPY OF THE POSTAL RECEIPT EVIDENCING
THE ISSUANCE OF EXT P3
Exhibit P5 A TRUE COPY OF THE REPRESENTATION DATED
24.12.2024 SUBMITTED BY THE PETITIONER BEFORE
THE 4TH RESPONDENT
Exhibit P6 A TRUE COPY OF THE POSTAL RECEIPT EVIDENCING
THE ISSUANCE OF EXT P5
RESPONDENT EXHIBITS
EXHIBIT R1(A) TRUE ACKNOWLEDGED COPY FURNISHED BY THE
DETAINING AUTHORITY
EXHIBIT R1(B) TRUE COPY OF THE ACKNOWLEDGEMENT LETTER
No.C.P.V.5(D.N)GA 257/2024 DATED 20.11.2024
EXHIBIT R1(C) TRUE COPY OF THE G.O.(Rt)No.214/2025/HOME
DATED 22.01.2025
EXHIBIT R1(D) TRUE COPY OF THE REPLY GIVEN TO THE
PETITIONER DATED 29.1.2025
