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2016 DIGILAW 889 (KER)

BABY v. STATE OF KERALA, REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM

2016-10-21

DEVAN RAMACHANDRAN, THOTTATHIL B.RADHAKRISHNAN

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JUDGMENT : Thottathil B. Radhakrishnan, J. We have heard the learned counsel for the petitioner and the learned State Attorney in this writ petition seeking issuance of a writ in the nature of habeas corpus or other appropriate writ, direction or order interfering with the preventive detention of the petitioner's son Manikandan @ Mani. 2. On the basis of a prejudicial activity stated to have occurred on 31.01.2016, the detenu was arrested and detained after lodgment of the First Information Report. Pending those criminal proceedings, the regular bail court did not come to the aid of the detenu. He thus continued under detention following arrest from 21.02.2016. While so, on 27.04.2016, an order of detention dated 22.04.2016 was served on him invoking the provisions of Kerala Anti-Social Activities (Prevention) Act, 2007, 'KAAPA Act', for short, by taking the stand that he is a known rowdy having regard to the different prejudicial activities attributed to him. 3. Following execution of the detention order, the detenu was served with what is called the grounds of detention. The detention order was approved by the competent authority, which is the Advisory Board in terms of the provisions of the KAAPA Act. Thereafter, the Government issued a confirmation order, under which, the detention was confirmed to be for six months. That period is due to expire on 27.10.2016. 4. The fact of the matter remains that the detention order was framed, issued and executed while the person was undergoing detention following arrest and under judicial orders of remand. The only reason that is apparently seen in the proposal for detention, as also, in the detention order is that the detenu is likely to repeat his prejudicial activities detrimental to the interest of the public and thereby indulge in activities, which would fall within the terms of 'gunda' and 'known gunda' under the KAAPA Act. The mere fact that a person, who is under detention following arrest and order of remand, is likely to be granted bail by itself is not a ground on which preventive detention order is to be made. The mere fact that a person, who is under detention following arrest and order of remand, is likely to be granted bail by itself is not a ground on which preventive detention order is to be made. There must be more clinching and real apprehension in the mind of any sovereign Government and the detaining authority in terms of the statutory provisions that in all likelihood, the detenu, if released on bail, is likely to indulge in such activities as would be prejudicial and such activities have to be foreseen to ensure public order and peace. We are fortified in taking the views taken in the judgment of the Hon'ble Supreme Court of India in Smt. Shashi Aggarwal v. State of U.P. ( AIR 1988 SC 596 ). Their Lordships held that the possibility of the court granting bail may not be sufficient. Nor a bald statement that the person would repeat his criminal activities would be enough. There must also be credible information or cogent reason apparent on the record that the detenu, if enlarged on bail, would act prejudicially to the interest of public order. The said precedent proceeds to state that, where the detention order was passed against the detenu, who was already in jail, merely on the ground that the detenu was trying to come out on bail and there was enough possibility of his being bailed out and there was no material on record to show that the detenu, if released on bail, was likely to commit activities prejudicial to the maintenance of public order, the order of detention would be illegal. 5. In the case in hand, having examined the records, we do not find that there is any ground apart from reiterating that previous three prejudicial activities have to be tagged along with the last among the prejudicial activities to create a chain of events that would culminate into a point of the likelihood of the detenu committing further acts, which have to be prevented. 6. It is pointed by the learned State Attorney that the earlier prejudicial activities were after obtaining bail orders. 6. It is pointed by the learned State Attorney that the earlier prejudicial activities were after obtaining bail orders. Having regard to the quality of the findings that have to be sustained by the detaining authority for entering into a subjective satisfaction for the purpose of the KAAPA Act, vis-a-vis the personal liberty issues as referable to Article 22(5) of the Constitution of India, we think that the balance of convenience tilts in favour of holding that the grounds stated in the detention order and the confirmation order were insufficient to enforce a preventive detention order as against the detenu involved in this case under the provisions of the KAAPA Act. Hence, the order of detention on the detenu as per Exhibit P1 is quashed. The detenu shall be released forthwith unless his detention is required in connection with any other case. The Registry is directed to communicate the gist of the judgment forthwith to the Superintendent of Central Prison, Kannur.