Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE5H DAY OF FEBRUARY201416TH MAGHA, 1935 WP(Crl.).No. 579 of 2013 (S) ----------------------------- PETITIONER: ------------- OMANA, AGED44YEARS, W/O.RAJAN, SREERAM PALAYAM STREET, VADAKKANTHARA, PALAKKAD DISTRICT. BY ADVS.SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW RESPONDENTS: ------------- 1.REP. STATE OF KERALA, BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HOME VIGILANCE (SS-A) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2.PALAKKAD THE DISTRICT COLLECTOR, 678001. 3.CENTRAL THE SUPERINTENDENT OF POLICE, PRISON, KANNUR670001. R1 -R3BY ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.K.I.ABDUL RASHID THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON0502-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(Crl.).No. 579 of 2013 (S) APPENDIX PETITIONER'S EXHIBITS :- --------------------- EXT.P1 - PHOTOCOPY OF THE DETENTION ORDER
No.S.1-2013/51911/9 DATED038-2013. EXT.P2 - PHOTOCOPY OF THE GROUNDS OF DETENTION DATED0308-2013, SERVED ON THE DETENU. EXT.P3 - PHOTOCOPY OF THE ORDER
OF THE1T RESPONDENT NO.G.O (RT)NO.2868/2013/HOME DATED2210-2013. EXT.P4 - PHOTOCOPY OF THE ORDER
IN CRL.MC.No.5377/2013 DATED1811-2013 PASSED BY THIS COURT. EXT.P5 - PHOTOCOPY OF THE JUDGMENT
REPORTED IN20131)KLT286 ABIDHA BEEVI VS. STATE OF KERALA. RESPONDENTS' EXHIBITS : NIL. --------------------- True copy P.A. To Judge ANTONY DOMINIC & ANIL K.NARENDRAN, JJ.
---------------------------------------------------------------- W.P.(Crl.)No.579 of 2013 ---------------------------------------------------------------- Dated this the 05th day of February, 2014 JUDGMENT
ANTONY DOMINIC, J.
The petitioner is the mother of one Suresh (hereinafter referred to as detenue for short). The detenue is an accused in Crime Nos.287 of 2011, 511 of 2011, 127 of 2012, 766 of 2012 and 782 of 2013 at the Town North Police Station, Palakkad. Pointing out that on account of the offences allegedly committed by the detenue, the District Police Chief, Palakkad, made a report under Section 3(1) to the second respondent, the detaining auhtority, requesting that the detenue be classified as a 'known rowdy' as provided under Section 2(p)(iii) of the Kerala Anti-Social Activities (Prevention) Act, 2007 ('the Act' for short) and that he be detained under Section 3 thereof. This report was made on 12/7/2013. W.P.(Crl.)No.579 of 2013 2 2. Based on the report thus submitted, the detaining authority initiated proceedings under the Act and finally issued Ext.P1 order dated 3/8/2013 classifying the detenue as a 'known rowdy' and ordering his detention under Section 3 of the Act. Accordingly he was detained on 26/8/2013, when he was furnished Ext.P2, the grounds of detention. Since then detenue is undergoing detention.
3. Meanwhile, proposal was submitted to the Government and the Government by order dated 2/9/2013 approved the detention as provided under Section 3(3) of the Act. The matter referred to the Advisory Board and the Advisory Board submitted its report on 9/10/2013. Thereafter, the Government issued Ext.P3 order confirming the detention. It is in these circumstances the petitioner has filed this Writ Petition, challenging Ext.P1 order of detention and seeking a Writ of Habeas Corpus to set the detenue at liberty.
4. We heard the learned counsel for the petitioner and also the learned Additional Director General of Prosecution appearing for the respondents. W.P.(Crl.)No.579 of 2013 3 5. The learned counsel for the petitioner contended that the last prejudicial activity in relation to Crime No.782 of 2013 of the Town North Police Station, Palakkad was on 21/4/2013. Thereafter, report under Section 3 (1) was made by the Sponsoring Authority only on 12/7/2013 and the detention order was issued only on 03/8/2013. Pointing out these dates, the learned counsel for the petitioner argued that there was a delay of 3 months and 13 days in issuing Ext.P1 order of detention and that as a result of the delay the live link between the prejudicial activity and the purpose of detention is snapped, which rendered the order of detention and the subsequent detention illegal and unconstitutional.
6. He also contended that though Ext.P1 order of detention was issued on 3/8/2013 the detenue was detained only on 26/8/2013, after a delay of 22 days. This also, according to the counsel is unexplained and inordinate, rendering the detention illegal. The counsel also contended that on 23/9/2013 by registering Crime No.581 of 2011 at the Town North Police Station, Palakkad, proceedings under W.P.(Crl.)No.579 of 2013 4 Section 107 of Cr.P.C. were initiated against the detenue. According to him, this proceeding was sufficient to prevent the detenue from continuing anti-social activities and that therefore his detention depriving him of his fundamental rights under Article 21 of the Constitution of India, is unwarranted and therefore is illegal. The learned counsel further contended that, proceedings in Crime No.511 of 2011 of the Town North Police Station, Palakkad, one of the cases relied on by the detaining authority, was subsequently quashed by this Court by Ext.P4 order dated 18/11/2013 and that therefore also the order is illegal and unconstitutional.
7. All these contentions were rebutted by the learned Additional Director General of Prosecution and according to the learned ADGP, Ext.P1 order and the further proceedings taken thereafter are legal and valid.
8. We have considered the submissions made.
9. The first contention raised by the learned counsel for the petitioner is that, there is inordinate and unexplained delay both in issuing Ext.P1 order and also in executing the said W.P.(Crl.)No.579 of 2013 5 order. It is true the last prejudicial activity which led to the registration of Crime No.782 of 2013 at the Town North Police Station, Palakkad, was on 21/4/2013. It is also true that the report of the Sponsoring Authority was made only on 12/7/2013 and Ext.P1 order was passed on 3/8/2013. It is the settled legal position of law that in a case of preventive detention, if there is inordinate and unexplained delay, the live link between the prejudicial activity and the purpose of detention is snapped and the order of detention will be unconstitutional. In other words, even if it is assumed that the detention order is belatedly issued, if the delay is satisfactorily explained, the order can be salvaged.
10. In so far as this case is concerned, the last prejudicial activity was on 21/4/2013. The averments in the counter affidavit filed by the first respondent show that after investigation, charge was laid before the concerned court on 8/6/2013 and it was thereafter that on being satisfied of the genuineness of the allegation against the detenue, report was made by the Sponsoring Authority to the detaining authority W.P.(Crl.)No.579 of 2013 6 on 12/7/2013. The detaining authority could not have mechanically acted upon the report or passed the order. He is required to apply his mind about the facts which were made available to him and this necessarily requires time. In so far as this case is concerned, on such application of mind, he has passed Ext.P1 order on 3/8/2013. These facts, in our view, satisfactorily explains the delay, if any, caused in passing Ext.P1 order and we are not prepared to invalidate Ext.P1 order on the ground that there is inordinate or unexplained delay. Similar is the case with respect to delay of 22 days in executing the order. Therefore, the first contention raised by the learned counsel for the petitioner requires to be rejected and we do so.
11. It is true that by Crime No.581 of 2011, proceedings under Section 107 of Cr.P.C. were initiated against the detenue on 23/9/2011. It is also true that in a case where it is possible to prevent the detenue from continuing his anti-social activity by methods other than his preventive detention, the authorities are bound to adopt those methods rather than W.P.(Crl.)No.579 of 2013 7 depriving the detenue his rights under Article 21 of the Constitution of India. It was therefore that courts have held that in cases where proceedings such as those under Section 107 Cr.P.C. are initiated, the authorities should consider whether in spite of it, it is necessary to preventively detain the person concerned and that on such examination, if the authorities are satisfied that detention is necessary, it is open to the authorities to validly do so.
12. In so far as this case is concerned Ext.P1 order itself refers to the proceedings under Section 107 of Cr.P.C. that are initiated against the detenue and the satisfaction of the detaining authority that such proceedings were insufficient to prevent the detenue from continuing his anti-social activities. In our view this satisfaction of the detaining authority is fully justified because on facts we noticed that after the initiation of 107 proceedings on 23/9/2011, the detenue got himself involved in 3 more cases, ie., Crime Nos.127/2012, 766/2012 and 782/2013 of the Town North Police Station, Palakkad involving grievous offences, of the nature specified in Section W.P.(Crl.)No.579 of 2013 8 2(t) of the Act. This itself shows that 107 proceedings did not have any impact on the detenue and that in spite of it he was carrying on his anti-social activities as defined in Section 2(a) of the Act.
13. It is true that by Ext.P4 order dated 18/11/2013 the proceedings in Crime No.511 of 2011 of the Town North Police Station, Palakkad were quashed by this Court based on a compromise. However, as on the date of the detention order, viz., 3/8/2013, the case was alive and therefore the detaining authority was fully justified in reckoning that crime also. Even apart from that, Section 7(4) of the Act provides that:- "The order of detention shall not be deemed to be invalid merely because one or more of the facts and circumstances cited among the grounds are vague, non-existent, irrelevant or invalid for any reason whatsoever and such order shall be deemed to have been made by the Government or the authorised officer after having been satisfied about the need for detention with reference to the remaining facts and circumstances, provided that the minimum conditions for being classified as a known goonda or known rowdy are satisfied." W.P.(Crl.)No.579 of 2013 9 14. Therefore, even if Crime No.511 of 2011 is excluded from the reckoning there are 4 cases still available which satisfies the minimum requirement of 3 cases specified in Section 2(p) of the Act. Therefore the fact that the subsequent to the order of detention, one of the cases have been quashed by this Court does not improve the case of the detenue in any manner. In such circumstances, the judgment in Ext.P5, is not of any assistance to the petitioner. For the aforesaid reasons we do not find any substance in any one of the grounds urged by the learned counsel for the petitioner. The Writ Petition is only to be dismissed and we do so. ANTONY DOMINIC, JUDGE ANIL K.NARENDRAN, JUDGE skj True copy P.A. To Judge