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2025 DIGILAW 1376 (KER)

Vipina K. v. State of Kerala Represented By The Additional Chief Secretary To Government of Kerala (Home Department)

2025-05-23

JOBIN SEBASTIAN, P.B.SURESH KUMAR

body2025
JUDGMENT Jobin Sebastian, J. This writ petition has been directed against an order of detention dated 21.11.2024 passed against one Arjun , 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 detention order stands confirmed by the Government vide order dated 22.01.2025 and the husband of the petitioner has been ordered to be detained for a period of six months from the date of execution of the order. 2. The records available before us disclose that a proposal was submitted by the District Police Chief, Kozhikode City, on 16.10.2024 seeking initiation of proceedings under Section 3(1) of the KAA(P) Act before the jurisdictional authority. For the purpose of initiation of the said proceedings, the detenu was classified as a 'known rowdy' as defined under Section 2p(iii) of the KAA(P) Act. For passing the order of detention the authority reckoned 9 cases in which the detenu got involved. 3. We have heard Smt. Saipooja, the learned counsel appearing for the petitioner, and Sri. K.A. Anas, the learned Government Pleader. 4. The learned counsel for the petitioner would submit that the impugned order is vitiated, as the same is passed without proper application of mind and disregarding the procedural safeguards envisaged in the KAA(P) Act. According to the counsel, there is an inordinate delay in mooting the proposal by the sponsoring authority and as well as in passing the impugned order by the competent authority after the last prejudicial activity. It is pointed out that the delay in making the proposal and passing the detention order will snap the live link between the last prejudicial activity and the purpose of detention. The learned counsel urged that, if the sponsoring authority was having any bona fide apprehension regarding the repetition of criminal activities by the detenu, the authority would have acted on war footing in making the proposal for initiation of proceedings under KAA(P) Act. It was further contended that the jurisdictional authority passed the impugned order without seriously taking note of the fact that the detenu was already on bail in the case registered with respect to the last prejudicial activity and the conditions imposed upon him in the order granting bail was sufficient to prevent the detenu from involving in further criminal activities. It was further contended that the jurisdictional authority passed the impugned order without seriously taking note of the fact that the detenu was already on bail in the case registered with respect to the last prejudicial activity and the conditions imposed upon him in the order granting bail was sufficient to prevent the detenu from involving in further criminal activities. According to the counsel, the sufficiency of the bail conditions imposed by the court while granting bail to the petitioner was not properly considered by the jurisdictional authority, and passed the impugned order in a hasty manner. It was further submitted that the impugned order was passed without proper application of mind and without arriving at the requisite subjective and objective satisfaction. Hence, the impugned order warrants interference and is liable to be set aside. 5. In response, Sri. K.A. Anas, the learned Government Pleader, asserted that there is no unreasonable delay either in submitting the proposal or in passing Ext.P2 detention order after the last prejudicial activity. However, some minimal delay is inevitable while passing a detention order, especially when it is the duty of the authority to ensure adherence to the natural justice principles while passing such an order. According to the learned Government Pleader, the detaining authority passed Ext.P2 order after arriving at the requisite objective as well as subjective satisfaction, and no interference is warranted. 6. We have carefully considered the submissions advanced and have perused the records. 7. The records show that the petitioner was classified as a “known rowdy”, considering his recurrent involvement in 9 cases. While considering the contention of the petitioner, regarding the delay that occurred in submitting the proposal for detention and in passing the order, it cannot be ignored that an order under Section 3(1) of KAA(P) Act has a significant impact on the personal as well as fundamental rights of an individual. So such an order could not be passed in a casual manner instead it can only be passed on credible materials after arriving at the requisite objective and subjective satisfaction. Furthermore, there exists no inflexible rule requiring a detention order to be issued within a specific time frame following the last prejudicial act. However, when there is undue delay in making the proposal and passing the detention order, the same would undermine its validity particularly when no convincing or plausible explanation is offered for the delay. 8. Furthermore, there exists no inflexible rule requiring a detention order to be issued within a specific time frame following the last prejudicial act. However, when there is undue delay in making the proposal and passing the detention order, the same would undermine its validity particularly when no convincing or plausible explanation is offered for the delay. 8. In T.A.Abdul Rahman v. State of Kerala, [1990 SCC Cri 76], the Apex Court held that the question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down on that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting the number of months between the offending acts and the order of detention. However, when there is an undue and long delay between the prejudicial activities and the passing of the detention order, the court has to scrutinize whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned when called upon to answer and further the court has to investigate whether the causal connection has been broken in the circumstances of each case. 9. Keeping in mind the above principles, while coming to the facts in the present case, it can be seen that the case registered against the petitioner with respect to the last prejudicial activity is crime No.995/2024 alleging commission of offences punishable under Sections 115(2), 118(1), 126(2), 110 r/w 3(5) of BNS. The last prejudicial activity was committed on 19.09.2024. From the records, it is evident that the case was registered on 21.09.2024, and the detenu who was arrayed as the 1st accused in the said case was arrested on 04.10.2024. Thereafter it was on 16.10.2024, the District Police Chief, Kozhikode City, submitted the proposal to the competent authority for initiation of proceedings under Section 3(1) of the KAA(P) Act. From the records, it is evident that the case was registered on 21.09.2024, and the detenu who was arrayed as the 1st accused in the said case was arrested on 04.10.2024. Thereafter it was on 16.10.2024, the District Police Chief, Kozhikode City, submitted the proposal to the competent authority for initiation of proceedings under Section 3(1) of the KAA(P) Act. Therefore, it is decipherable that it was while the detenu was in judicial custody in connection with the last prejudicial activity that the proposal for initiation of proceedings under the KAA(P) Act was mooted. Subsequently, on 21.11.2024, the order of detention was passed. Therefore, the sequence of events clearly shows that there is no inordinate delay either in mooting the proposal or in passing the order of detention. Hence, the petitioner could not be heard to say that the live link between the last prejudicial activity and the order of detention snapped. 10. Another contention canvassed from the side of the petitioner is that the jurisdictional authority, while passing the order, did not take notice of the fact that the petitioner was released on bail in the last case registered against him. According to the counsel, the jurisdictional authority also failed to consider the sufficiency of the bail conditions imposed by the court at the time when he was granted bail. While considering the contention of the counsel for the petitioner in the above regard, it is to be noted that there is no law that precludes the jurisdictional authority to pass an order of detention against a person who is already on bail. However, when an order of detention is passed against a person who is on bail, it is incumbent upon the authority to take note of the said fact and to consider whether the bail conditions imposed on such a person while granting bail by the court are sufficient to prevent the detenu from involving in criminal activities. Keeping in mind the above, while reverting to the case at hand, it can be seen that in the impugned order itself, the fact that the petitioner was released on bail in the case registered against him with respect to the last prejudicial activity is specifically adverted to. However, in the impugned order, the sufficiency of the bail conditions is not seen considered by the jurisdictional authority. However, in the impugned order, the sufficiency of the bail conditions is not seen considered by the jurisdictional authority. In the impugned order, it is nowhere mentioned that the conditions clamped on the detenu while granting bail to him in the case registered with respect to the last prejudicial activity are not sufficient to deter him from repeating criminal activities. As already mentioned, when the detenu was already on bail, it was obligatory on the part of the jurisdictional authority to consider whether the conditions imposed in the bail order are sufficient to restrain the detenu from involving in criminal activities. The non-consideration of the sufficiency of bail conditions will certainly vitiate the order of detention. 11. In the result, this Writ Petition is allowed and Ext.P2 order of detention is set aside. The Superintendent of Central Prison, Kannur is directed to release the detenu, Sri. Arjun forthwith, if his detention is not required in connection with any other case. The Registry is directed to communicate the order to the Superintendent of Central Prison, Kannur forthwith.