Kerala High Court
Fousiya C.P vs State Of Kerala on 17 October, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:77524
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 17TH DAY OF OCTOBER 2025 / 25TH ASWINA, 1947
WP(CRL.) NO. 1306 OF 2025
PETITIONER:
FOUSIYA C.P
AGED 34 YEARS
W/O NAHAS HUSSAIN, PADINJARE PARAMBIL VEEDU, ELOOR
NORTH, UDYOGAMADAL S.O, ERNAKULAM,, PIN - 683501
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
ERNAKULAM DISTRICT, PIN - 682030
3 THE DISTRICT POLICE CHIEF,
ERNAKULAM,, PIN - 682035
4 THE CHAIRMAN
ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD,
VIVEKANANDA NAGAR, ELAMAKKARA,ERNAKULAM DIST,
PIN - 682026
5 THE SUPERINTENDENT OF JAIL,
CENTRAL PRISON, KANNUR, PIN - 670004
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BY ADV.
SRI.K.A.ANAS, G.P.
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY
HEARD ON 17.10.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
This writ petition is directed against an order of detention
dated 25.06.2025 passed against one Nahas Hussain, the detenu,
under Section 3(1) of the Kerala Anti-Social Activities (Prevention)
Act, 2007 ('KAA(P) Act' for brevity). The petitioner herein is the wife
of the detenu. The said order of detention was confirmed by the
Government vide order dated 10.09.2025, and the detenu has been
ordered to be detained for a period of six months, from the date of
detention.
2. The records reveal that, it was after considering the
recurrent involvement of the detenu in criminal activities, a proposal
was submitted by the Deputy Commissioner of Police, Kochi City, on
07.06.2025, seeking initiation of proceedings against the detenu
under Section 3(1) of 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 2(p)(iii) of the KAA(P) Act.
3. Altogether, six cases in which the detenu got involved
have been considered by the jurisdictional authority for passing the
order of detention. Out of the six cases considered, the case
registered with respect to the last prejudicial activity is crime
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No.357/2025 of Marad Police Station, alleging commission of
offences punishable under Sections 126(2), 115(2), 118(1), 110, r/w
3(5) of Bharatiya Nyaya Sanhita (for short "BNS").
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 illegal, arbitrary, and was passed without proper
application of mind. It is further submitted that altogether four
representations had been forwarded by the detenu or on his behalf.
Among them, Ext.P4 representation was sent directly by the detenu
through the jail superintendent concerned to the Government. Out
of the three remaining representations, Ext.P5 and Ext.P6 were sent
by the petitioner to the Government through e-mail and registered
post, respectively, and Ext.P8 representation was sent to the KAA(P)
Act Advisory Board by the petitioner. However, none of these
representations were considered by the Government, nor was their
fate communicated to the detenu. The learned counsel further
contended that there is a delay of 18 days in executing the detention
order from the date of its issuance, and the said delay is not
justifiable. According to the counsel, if the detenu had been
absconding after the commission of the last prejudicial activity, as
mentioned in the order, it was incumbent upon the executing
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authority to report the said matter to the Chief Judicial Magistrate
under Section 6 of the KAA(P) Act. However, no such report was sent
in this case. On these premises, it was urged that the impugned
order is liable to be set aside.
6. In response, the learned Government Pleader submitted
that all the representations submitted by the detenu and on his
behalf were considered by the Government, and its fate was duly
communicated to the detenu, and the contention of the learned
counsel for the petitioner, sticking on non-consideration of the
representations, is absolutely baseless. The Government Pleader
further submitted that after the commission of the last prejudicial
activity, the detenu absconded, and it was for that reason there
occurred a delay of 18 days in executing the impugned order. The
learned Government Pleader pointed out that after the passing of the
order, the executing authority had been making all earnest efforts to
trace the absconding detenu to execute the order, and therefore, the
delay of 18 days in executing the same is fully justified. It was further
pointed out that under the KAA(P) Act, no particular time is
prescribed for initiating proceedings under Section 6 of the KAA(P)
Act against a detenu who has absconded or is concealing himself.
Hence, the detenu cannot be heard to contend that the executing
authority was bound to initiate proceedings under Section 6 within a
particular time. According to the learned Government Pleader, the
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detaining authority passed the Ext.P1 order after arriving at the
requisite objective as well as subjective satisfaction, and no
interference is warranted in the said order.
7. Before delving into a discussion regarding the rival
contentions raised from both sides, it is to be noted that the case
registered against the detenu with respect to the last prejudicial
activity is crime No.357/2025 of Marad Police Station, alleging the
commission of offenses punishable under Sections 126(2), 115(2),
118(1), 110, r/w 3(5) of BNS. As already noted, the incident that led
to the registration of the case with respect to the last prejudicial
activity occurred on 23.05.2025. After the commission of the last
crime, the detenu absconded. It was after considering the recurrent
involvement of the detenu in criminal activities, on 07.06.2025, the
sponsoring authority mooted the proposal for initiation of
proceedings under the KAA(P) Act against the detenu. Thereafter, it
was on 25.06.2025, the impugned order was passed. Virtually, there
is no unreasonable delay either in mooting the proposal or in passing
the impugned order of detention.
8. While considering the contention in the writ petition that
the representations submitted by the detenu were not considered by
the Government within a reasonable time, and the fate of those
representations were not timely communicated to him, first of all, it
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is to be noted that the right of a detenu to get his representations
considered by the Government is a constitutional as well statutory
right. However, the records reveal that the contention of the
petitioner that the representations of the detenu were not considered
by the Government appears to be baseless. Exts.P4, P5, P6, and P8
are the representations allegedly submitted either by the detenu or
on behalf of him by the petitioner. As evident from the records,
among them, Ext.P4 representation was sent directly by the detenu
through the jail superintendent concerned to the Government. Out
of the remaining three representations, Ext.P5 and Ext.P6 were sent
by the petitioner to the Government through e-mail and registered
post, respectively, and Ext.P8 representation was sent to the KAA(P)
Act Advisory Board by the petitioner.
9. However, in the present case, a perusal of the
confirmation order dated 10.09.2025 (Ext.P10) clearly indicates that
the representation (Ext.P4) submitted by the detenu to the
Government through the jail superintendent concerned is referred to
as Item No. 5 in the said confirmation order, and the representations
(Exts.P5 and P6) dated 14.07.2025 submitted by the petitioner for
and on behalf of the detenu were shown as Item No. 6. Moreover, the
Confirmation Order specifically records that the Government had
meticulously and carefully examined both the representation
submitted by the detenu and the representations submitted on behalf
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of the detenu antecedent to the passing of the said order of
confirmation. Such a specific recital in the confirmation order will
certainly cut at the very root of the petitioner's contention that the
representations submitted by the detenu were not considered by the
Government. Significantly, a perusal of the copy of the letter dated
12.09.2025, which was addressed to the petitioner and produced by
the learned Government Pleader for verification, makes it clear that
after receiving the Advisory Board's opinion, the Government also
considered the Ext.P8 representation sent by the petitioner to the
KAA(P) Act Advisory Board, and the outcome of all the
representations submitted by the petitioner was thereafter
communicated to her. Likewise, even the detenu has no case that the
confirmation order, as well as the letter dated 12.09.2025, were not
served on him. Therefore, the petitioner cannot be heard to contend
that the fate of the representations was not communicated to the
detenu. In view of the above, the contention of the petitioner in this
regard is devoid of merit and cannot be sustained.
10. Another contention taken by the learned counsel for the
petitioner is that there is a delay of 18 days in executing the
detention order from the date of its issuance and that the said delay
is not justifiable. According to the counsel, if the detenu had been
absconding after the commission of the last prejudicial activity, it
was obligatory on the part of the executing authority to make a
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report to the Chief Judicial Magistrate under Section 6 of the KAA(P)
Act, which has not been done in the present case. While considering
this contention, it cannot be overlooked that after the involvement in
the last prejudicial activity, the detenu absconded. Later, it was on
25.06.2025, while he was absconding, the Ext.P1 order of detention
was passed. Thereafter, on 13.07.2025, i.e., after 18 days from the
date of the order, the accused was traced out and the order was
executed. In these circumstances, it cannot be said that there is any
unreasonable delay in executing the order.
11. When an order of detention is passed against an
absconding person, the authority who is authorised to execute the
said order certainly would require a reasonable time to secure and
detain him. We do agree that, in view of Section 6 of the KAA(P) Act,
when a detention order is passed against an absconding accused, the
authority who is authorised to execute the order shall make a report
in writing to the Chief Judicial Magistrate for further steps. However,
there is no legal requirement that immediately after passing of a
detention order against an absconding person, the authority
authorised to execute the detention order shall straight away
approach the CJM with a report under Section 6 of the KAA(P) Act
without first making any effort to trace out and apprehend the
detenu.
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12. In other words, when an order of detention was passed
against an absconding person, it cannot be said that the authority
executing is bound to forgo all attempts to secure the detenu and
instead rush to the CJM with a report. We do agree that if the order
of detention could not be executed within a reasonable time after
taking all the efforts, the authority must report the same to the CJM.
In the case at hand, the authority took only a reasonable period of 18
days to trace out the accused and to execute the order. Hence, it
cannot be said that failure to file a report before the CJM within 18
days renders the detention order unsustainable.
In view of the discussion above, we hold that the petitioner has
not made out any case for interference. Resultantly, this writ petition
fails and is accordingly dismissed.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
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APPENDIX OF WP(CRL.) 1306/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF ORDER NO.
DCEKM/7603/2025-M7 DATED 25.06.2025 OF
THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE PROCEEDINGS DATED
11.07.2025 IN C.C.NO.1075/2023 ON THE
FILE OF JUDICIAL FIRST CLASS
MAGISTRATE COURT, KAKKANAD
Exhibit P3 A TRUE COPY OF THE AFFIDAVIT FILE BY
THE DE FACTO COMPLAINANT VIZ. ANSAD K,
AGED 27 YEARS, S/O ALI, KARUVANKUZHI
HOUSE, KOORACHIPADI BHAGOM, OTTAPALAM,
PALAKKAD, NOW RESIDING AT PEEDIYEKKAL
HOUSE, PACHALAM
Exhibit P4 A TRUE COPY OF THE REPRESENTATION
DATED 14.07.2025 SUBMITTED BY THE
DETENU BEFORE THE 1ST RESPONDENT
Exhibit P5 A TRUE COPY OF THE E MAIL DATED
14.07.2025 SEND BY THE COUNSEL FOR THE
PETITIONER BEFORE THE 1ST RESPONDENT
Exhibit P6 A TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE PETITIONER BEFORE THE
1ST RESPONDENT, DATED 14.07.2025
Exhibit P7 A TRUE COPY OF THE POSTAL RECEIPT
EVIDENCING THE ISSUANCE OF EXT P6
Exhibit P8 A TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE PETITIONER BEFORE THE
4TH RESPONDENT, DATED 14.07.2025
Exhibit P9 A TRUE COPY OF THE JUDGMENT DATED
14.08.2025 IN W.P.(CRL). NO. 995/2025
OF HON'BLE COURT
Exhibit P10 A TRUE COPY OF G.O.(RT) NO.
3119/2025/HOME DATED 10.09.2025
