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2022 DIGILAW 1006 (KER)

Jasid A. S. S/o Sulaiman v. State of Kerala

2022-11-22

ALEXANDER THOMAS, SOPHY THOMAS

body2022
JUDGMENT : ALEXANDER THOMAS, J. 1. The prayers in the instant Writ Petition (Criminal) seeking for issuance of Writ of Habeas Corpus and Certiorari, in regard to the challenge against the order preventing and detaining the detenu in this case under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007, are as follows: “(i) A writ of habeas corpus directing the respondents to produce the detenue forthwith in the interest of justice. (ii) Writ of certiorari calling for the entire records pertaining to Exhibit P-1 detention order and quash Exhibit P1 detention order as it ultravires constitution and is against law. (iii) Any other writ or order that this Hon'ble Court may deem fit according to the facts and circumstances of the case.” 2. Heard Sri. Liffy P. Francis, learned counsel appearing for the petitioner and Sri. K.A. Anas, learned Prosecutor appearing for the respondents. 3. In the instant case, brief facts which are necessary for the disposal of this case are as follows: The petitioner is the brother of the detenu involved in this case (Sri. Sinar, aged 26 years, S/o Sulaiman) who has been detained in terms of Ext.P-1 detention order dated 15.8.2022 issued by the 2nd respondent District Magistrate/District Collector, Ernakulam (authorized detaining authority) under Section 3(1) of the above Act. According to the respondents, Ext.P-1 detention order has been forthwith communicated by the 2nd respondent to the 1st respondent State Government along with all relevant records. Thereafter, Ext.P-1 detention order has been executed with the arrest and actual detention of the detenu on 17.8.2022 and thereafter, he has been detained in the Central Prison, Kannur since then, in connection with this case. Ext.P-1 detention order has been subsequently approved by the 1st respondent State Government as per order dated 27.8.2022. The 1st respondent State Government had, later, referred the matter for the opinion of the 4th respondent statutory Advisory Board on 31.8.2022. The 4th respondent statutory Advisory Board, after hearing the detenu, has given their report to the State Government, on 14.10.2022, recommending that there are sufficient grounds for preventive detention of the detenu in terms of Ext.P-1 order. Later, the 1st respondent State Government has issued G.O. (Rt.) No. 2965/2022/HOME dated 26.10.2022 confirming Ext.P-1 detention order. The 4th respondent statutory Advisory Board, after hearing the detenu, has given their report to the State Government, on 14.10.2022, recommending that there are sufficient grounds for preventive detention of the detenu in terms of Ext.P-1 order. Later, the 1st respondent State Government has issued G.O. (Rt.) No. 2965/2022/HOME dated 26.10.2022 confirming Ext.P-1 detention order. Altogether 4 criminal cases have been taken into account for determining the issue as to whether the detenu would satisfy the requirements of “Known Rowdy” as per Section 2(p)(iii) read with Section 2(t) of the above Act. Going by the details of the said 4 crimes given in Ext.P-1 detention order, there are no serious disputes that the detenu would broadly satisfy the definitional parameters of “Known Rowdy” as per Section 2(p)(iii) read with Section 2(t) of the above Act. 4. The main ground urged before us by the counsel for the petitioner is that there has been inordinate and unexplained delay in passing Ext.P-1 detention order as late as on 15.8.2022 even though the last prejudicial activity, in relation to the last case involved in this case, is said to have been registered on 21.2.2022 and hence, it is urged that the live link between the last prejudicial activity and the purpose of detention has snapped and hence, it is urged that the decision making process which led to Ext.P-1 detention order is vitiated and is liable for interdiction. 5. Both sides have made their submissions on this point and there is no necessity to reiterate their respective submissions, as we propose to deal with this contention with all specific details. 6. In the instant case, it is admitted case of the respondents that the last prejudicial activity was allegedly conducted by the detenu on 21.2.2022 and the crime in that regard was registered by the Police on 22.2.2022 (which is the date of registration of the fourth and the last crime in this case). It is also common ground that the detenu was arrested in connection with his involvement in the said last crime on 4.3.2022 and he was released on bail by the Judicial First Class Magistrate Court-I, North Paravoor on 26.3.2022. It is only much later that the 3rd respondent Superintendent of Police (sponsoring authority) has given report dated 24.5.2022 recommending to the 2nd respondent for the preventive detention of the detenu. It is only much later that the 3rd respondent Superintendent of Police (sponsoring authority) has given report dated 24.5.2022 recommending to the 2nd respondent for the preventive detention of the detenu. It is even much thereafter that the 2nd respondent has chosen to pass Ext.P-1 detention order on 15.8.2022. 7. The counsel for the petitioner would strongly urge that there is inordinate and unexplained delay between the last prejudicial activity and the issuance of Ext.P-1 detention order. The main grounds urged by the 2nd respondent in Ext.P-1 for justifying the delay is given on the penultimate page (internal page 10) of Ext.P-1 detention order [See Page 19 of the paper book of this WP (Crl.)] which reads as follows: 8. A reading of the abovesaid portion of Ext.P-1 detention order would make it clear that the justification made by the 2nd respondent is, that the last crime is said to have occurred on 21.2.2022 (Crime No. 193/2022 of North Paravoor Police Station) and the detenu accused was arrested on 4.3.2022 and he was released on bail subsequently on 26.3.2022 and that thereafter, time was taken to examine the case in detail after securing the report of the sponsoring authority, etc. and the time taken in issuance of Ext.P-1 detention order on 15.8.2022 is justified, going by these factual details. Even going by the admitted factual details, it can be seen that the last crime has been registered on 22.2.2022 and the detenu was arrested and remanded to judicial custody on 4.3.2022. He was on judicial remand till 26.3.2022 and he was released on bail by the jurisdictional Magistrate Court concerned on 26.3.2022. There is some substance in the submission made by Sri. K.A. Anas, learned Prosecutor appearing for the respondents, that since the detenu could be apprehended only on 4.3.2022 and since he was on judicial remand till 26.3.2022 and he could secure bail only on 26.3.2022, the sponsoring agency and the detaining agency are entitled to take a broad view, that his preventive detention is not then immediately needed, and it is only when he is released on bail that those authorities were alerted and they have taken action inasmuch as the sponsoring agency has given report on 24.5.2022, etc. Therefore, even if we concede that necessary action for contemplating for preventive detention have been taken by the sponsoring agency and the detaining authority only after the detenu was released on bail on 26.3.2022, there is no justification even for the sponsoring authority to give report in the matter only on 24.5.2022. That apart, even after receiving the sponsoring agency's report on 24.5.2022, the 2nd respondent has chosen to pass Ext.P-1 detention order only after about 2½ long months inasmuch as Ext.P-1 detention order has been issued only on 15.8.2022. Even if we compute the time period only from 26.3.2022 (the date of grant of bail) up to 15.8.2022 (the date of issuance of Ext.P-1), the delay in this regard is quite inordinate and has not been explained. Nothing prevented the aforesaid authorities from taking vigilant and prompt action at least immediately after the release of the detenu on bail, on 26.3.2022. That apart, there is no justification for the 2nd respondent detaining authority to pass Ext.P-1 detention order only on 15.8.2022, if emergent preventive detention was really necessary inasmuch as the sponsoring agency's report was admittedly issued on 24.5.2022. Hence, we have no doubt in our mind that the delay in this case is inordinate and unexplained and would be fatal to the decision making process. In other words, the live link between the last prejudicial activity and the purpose of detention, sought to be achieved by Ext.P-1, has been snapped on account of this inordinate delay. So, on this short ground, the petitioner is entitled to succeed and the impugned Ext.P-1 detention order is liable to be interdicted in judicial review proceedings. 9. Accordingly, it is ordered that Ext.P-1 detention Order No. DCEKM/6189/2022/M7 dated 15.8.2022 issued by the 2nd respondent District Magistrate/District Collector, Ernakulam, as confirmed by the 1st respondent State Government in the Home Department as per G.O. (Rt.) No. 2965/2022/HOME dated 26.10.2022 will stand quashed and set aside. Consequently, it is ordered that the respondents herein and the Jail authorities concerned (The Superintendent, Central Prison, Kannur) shall forthwith release the detenu Sri. Sinar, aged 26 years, S/o Sulaiman, from prison, if his further detention is not required in connection with any other case. 10. Consequently, it is ordered that the respondents herein and the Jail authorities concerned (The Superintendent, Central Prison, Kannur) shall forthwith release the detenu Sri. Sinar, aged 26 years, S/o Sulaiman, from prison, if his further detention is not required in connection with any other case. 10. The Secretary to the office of the Advocate General will immediately forward a copy of this judgment to all the respondents herein and the Superintendent, Central Prison, Kannur, for necessary information and immediate compliance. 11. With these observations and directions, the above Writ Petition (Criminal) will stand finally disposed of.