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2022 DIGILAW 934 (KER)

SWATHI S. W/O PARADEEP KUMAR v. STATE OF KERALA

2022-11-02

ALEXANDER THOMAS, SOPHY THOMAS

body2022
JUDGMENT : ALEXANDER THOMAS, J. 1. The prayers in the instant writ petition (Criminal) seeking for writs of Habeas Corpus and quashment in relation to the challenge against the detention order issued under the Kerala Anti-Social Activities Prevention Act, 2007 are as follows: “(i) A writ of habeas corpus or any other appropriate writ, direction or order directing the respondents to produce the person of the detenu Pradeepkumar P. S/o Babu, Padmar House, Agalpady, Kumbadaje P.O. Umrangala Village, Kasargode District, Kerala before this Hon’ble Court and to set him at his liberty forthwith. (ii) Declare that Ext.P1 detention order and the detention pursuant to the same is illegal and vitiated. (iii) To dispense with the production of English Translations of the documents in vernacular produced in this Writ Petition (Crl) in vernacular language. (iv) Such other orders as are deemed fit and proper in the circumstances of the case.” 2. Heard Sri.Sojan Michael, learned Counsel appearing for the petitioner and Sri. K.A. Anas, learned Prosecutor appearing for the respondents. The petitioner is the wife of the detenu, Sri. P. Pradeep Kumar, who has been ordered to be preventively detained under Section 3(1) of the Kerala Anti Social Activities (Prevention) [KAA(P)] Act, 2007 involved in this case. The brief facts leading into this case are as follows. 3. The 3rd respondent District Police Chief who is the sponsoring authority has sent Ext.P3 report dated 06.04.2022 to the 2nd respondent District Collector and District Magistrate, recommending that in view of the aspects stated in the said report, it is a fit case to invoke the discretion under Section 3(1) of the above Act so as to preventively detain the detenu under Section 3(1) of the Act as otherwise he is very likely to engage in further serious prejudicial anti social activities as envisaged in Section 2(a) of the Act. After consideration of the said report, the 2nd respondent District Collector cum District Magistrate who is the authorized detaining authority in terms of Section 3(3), has issued the impugned Ext.P1 detention order dated 21.05.2022 ordering that the detenu would fulfill the essential parameters of ‘known rowdy’ as per Section 2(p) of the Act and that the 2nd respondent is satisfied on the materials that it is necessary to issue order under Section 3(1) of the Act so as to preventively detain the detenu with a view to prevent him from committing further prejudicial anti-social activities. Ext.P1 detention order was executed on 25.05.2022. According to the 2nd respondent, he has forthwith sent Ext.P1 detention order along with all relevant documents to the 1st respondent State Government on 21.05.2022 itself. Further that Ext.P1 detention order was approved by the 1st respondent State Government on 09.06.2022. Further, the 1st respondent State Government had referred the matter to the statutory Advisory Board on 10.06.2022 for latter’s opinion. The Advisory Board after affording opportunity of hearing to the detenu has submitted their report dated 15.07.2022 to the State Government recommending that there is sufficient cause to detain the detenu. Thereafter, the 1st respondent State Government has issued Ext.P4 order dated 21.07.2022 confirming Ext.P1 detention order under Section 10(4) of the Act and thereby fixing that the period of detention would be six months from the date of detention. 4. There are no serious disputes that going by the facts and figures given in Ext.P1 detention order that the detenu would satisfy the essential parameters of ‘known rowdy’ as per Section 2(p)(iii) read with Section 2(t) of the Act. Therefore, it is not necessary for us to get into the details as to whether the detenu would fulfill the essential parameters of Section 2(p) of the Act. 5. Sri. Sojan Michael, learned Counsel appearing for the petitioner has essentially raised two grounds. The first ground is that indisputably, the detenu was in judicial custody from 10.05.2022 onwards in connection with his involvement in crime No. 466/2022 of Badiadkka Police Station, Kasargod (registered on 09.05.2022). 5. Sri. Sojan Michael, learned Counsel appearing for the petitioner has essentially raised two grounds. The first ground is that indisputably, the detenu was in judicial custody from 10.05.2022 onwards in connection with his involvement in crime No. 466/2022 of Badiadkka Police Station, Kasargod (registered on 09.05.2022). That the detaining authority before passing Ext.P1 detention order dated 21.05.2022 was legally obliged to consider as to whether it was highly necessary and imparative to issue preventive detention order on 21.05.2022 as the detenu was already in judicial custody since 10.05.2022 and as to whether there was real likelihood of the detenu getting released on bail. That, the abovesaid crucial aspects have been completely eschewed from the consideration of the detaining authority and that therefore the impugned decision making process is vitiated on this sole ground. The next contention raised by the petitioner is that there is blatant and flagrant violation of statutory mandate contained in Section 3(3) of the Act, which prescribes that the approval order by the Government should be passed within 12 days from the date of the detention excluding public holidays, failing which the order of detention passed by the authorised detaining authority will lapse. Ext.P1 detention order dated 21.05.2022 was executed on 10.05.2022, the detention order should have been approved by the Government on or before 08.06.2022, which is after excluding the 2 public holidays. In the instant case, the approval was granted only on 09.06.2022 and that the delay in that regard is fatal in view of the statutory mandate contained in Section 3(3) which mandates that if the abovesaid timeline is violated, the detention order will no longer be in force. We will deal with each of these contentions separately. If the petitioner succeeds in any of these grounds, then the order of detention at Ext.P1 is liable for interdiction. Contention No. A 6. In the instant case, the Ext.P3 report of the sponsoring authority has been issued on 06.04.2022. Thereafter, the detenu was arrested on 10.05.2022 in connection with his involvement in Crime No. 466/2022 of Badiadkka Police Station, Kasargod District which was registered on 09.05.2022. The factum regarding the arrest and remand of the detenu to judicial custody on 10.05.2022 onwards was very much known to the 2nd respondent detaining authority as can be seen from a reading of Ext.P1. Ext.P1 detention order was passed subsequently on 21.05.2022. The factum regarding the arrest and remand of the detenu to judicial custody on 10.05.2022 onwards was very much known to the 2nd respondent detaining authority as can be seen from a reading of Ext.P1. Ext.P1 detention order was passed subsequently on 21.05.2022. The Apex Court after scanning various case laws on the subject has categorically held in decisions in Dharmendra Suganchand Chelawat vs. Union of India and Others, 1990 (1) SCC 746 (Para 21 thereof) that it is well established that an order of preventive detention can be validly passed against a person who is already in custody and for that purpose, it is necessary that the grounds of detention must necessarily show that (i) the detaining authority was aware of the fact that the detenu is already in detention and (ii) there were compelling reasons, justifying such detention despite the fact that the detenu is already in detention. That the expression ‘compelling reasons’ in the context of making an order of detention of a person already in custody implies that there must be cogent materials before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the activities of the detenue. It is likely that after is release from custody he would indulge in prejudicial activity and it is necessary to detain him, in order to prevent him engaging in such activities. It may be pertinent to refer to the decision of the Apex Court in Dharmendra Suganchand Chelawat vs. Union of India and Others, 1990 (1) SCC 746 [p.754], paragraph 21 which reads as follows: “21. The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression “compelling reasons” in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.” 7. That in the instant case, there is no dispute that a reading of Ext.P1 detention order would clearly indicate that the 2nd respondent detaining authority, before passing the said detention order on 21.05.2022 was very much aware that the detenu was already arrested and remanded to judicial custody on 10.05.2022 in connection with his involvement in the aforesaid crime. However, Ext.P1 detention order will not in any manner even remotely show that the detaining authority, after consideration of the said crucial aspect has found that there are compelling reasons justifying the preventive detention, despite the fact that the detenu is already in detention and that detenu is likely to be released from custody in the near future and that after that he is likely to indulge in further prejudicial anti-social activities etc. Though, the 2nd respondent is aware about the crucial fact that the detenu was already in judicial custody since 10.05.2022, there is no consideration of materials in Ext.P1 to show that after due consideration, the detaining authority was convinced that the detenu is likely to be released from custody in the near future and that consequentially he should be preventively detained in order to prevent him from committing further prejudicial anti-social activities etc. No materials of consideration are discernible from Ext.P1 on the said crucial aspect that the 2nd respondent detaining authority after due application of mind based on materials could have taken the view that the detenu was likely to be released from custody in the near future. If consideration on that aspects were bestowed with due materials by the 2nd respondent and a view taken thereon against the detenu, then the scenario could have been possibly different. That is not the situation in the instant case. If consideration on that aspects were bestowed with due materials by the 2nd respondent and a view taken thereon against the detenu, then the scenario could have been possibly different. That is not the situation in the instant case. There is no consideration of this crucial aspect as to whether the detenu is very likely to have released from judicial custody in the near future and that therefore hi is likely to engage in further prejudicial activities. Hence, Ext.P1 detention order is liable for interference on that sole ground. Counsel for the petitioner has also pointed out that the detenu was in judicial custody from 10.05.2022 up to 27.09.2022 in connection with his involvement in the afore crime no. 466/2022 of Badiadkka Police Station and after pleading guilty, he was convicted and sentenced to undergo 4 months and 17 days imprisonment, after setting off the period of remand already undergone by him in that case. Contention No. B 8. Section 3(3) of the Act mandates that when an order is made under Section 3(1) by an authorized officer, he shall forthwith report the14 fact to the Government and the State Police Chief together with a copy of the detention order and supportive records and further it is clearly mandated that no such detention order shall remain in force for more than 12 days, excluding public holidays from the date of detention of such Known Goonda or Known Rowdy as the case may be, unless in the mean time, it has been approved by the Government or by the Secretary, Home Department, if generally so authorized in this regard by the Government. Section 3(3) of the Act reads as follows: “(3) When any order is made under this section by the authorised officer under sub-section (2), he shall forthwith report the fact to the Government and the Director General of Police, Kerala, together with a copy of the order and supporting records which, in his opinion, have a bearing on the matter and no such order shall remain in force for more than 12 days, excluding public holidays, from the date of detention of such Known Goonda or Known Rowdy, unless, in the meantime, it has been approved by the Government or by the Secretary, Home Department if generally so authorised in this regard by the Government.” 9. In other words the clear mandate of the statute is that unless Ext.P1 detention order is approved by the State Government within 12 days from the date of detention of the detenu, after excluding public holidays, the impugned detention order shall no longer remain in force. The Division Bench of this Court in various decisions including the one as in Susha vs. State of Kerala and Others, 2017 (1) KLT 423 (DB) : 2017 (1) KHC 474 , has categorically held that if the abovesaid timeline of 12 days after excluding public holidays is not complied with in the matter of issuance of the approval order by the Government, then the detention order issued by the authorizing authority shall no longer remain force. In the instant case, Ext.P1 detention order has been issued on 21.05.2022 and the same has been executed on 25.05.2022. Ext.P1 detention order has been approved by the 1st respondent State Government only on 09.06.2022. From the date of execution of detention order on 21.05.2022 onwards up to the approval order by the Government on 09.06.2022, there are two public holidays. After excluding the said two days, the abovesaid timeline under the latter part of Section 3(3) of the Act would statutorily demand that the approval order should have been passed on or before 08.06.2022. In the instant case, the said vital statutory timeline has not been adhered to and the approval order has been issued only on the next day i.e. on 09.06.2022. In other words, from 08.06.2022 onwards, Ext.P1 detention order could not have remained in force at all in the eye of law. In view of this vital statutory violation, it is only to be held that the impugned Ext.P1 detention order is liable for quashment as the impugned decision making process is vitiated. 10. The upshot of the above discussion is that the petitioner is entitled to succeed in this case. In that view of the matter, it is ordered that Ext.P1 detention order No. DCKSGD/3091/2022/D1(1) dated 21.05.2022 issued by the 2nd respondent District Collector cum District Magistrate, Kasargod as confirmed by Ext.P4 GO(Rt) No. 2030/2022/Home dated 21.07.2022, will stand quashed and set aside. We are told that the detenu is now detained in Central Prison, Viyyur, Thrissur District. In that view of the matter, it is ordered that Ext.P1 detention order No. DCKSGD/3091/2022/D1(1) dated 21.05.2022 issued by the 2nd respondent District Collector cum District Magistrate, Kasargod as confirmed by Ext.P4 GO(Rt) No. 2030/2022/Home dated 21.07.2022, will stand quashed and set aside. We are told that the detenu is now detained in Central Prison, Viyyur, Thrissur District. Consequently it is ordered that the respondents as well as the jail Superintendent, Central Prison, Viyyur, Thrissur shall forthwith release the detenu in this case, Sri. T. Pradeep Kumar, from the Prison and set him at liberty, if his further detention is not required in connection with any other case. 11. With these observations and directions the above W.P. (Crl) will stand finally disposed of.