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2025 DIGILAW 147 (KER)

Dhanya M W/o Rajesh v. State of Kerala

2025-01-31

JOBIN SEBASTIAN, P.B.SURESH KUMAR

body2025
JUDGMENT P.B.Suresh Kumar, J. This writ petition is instituted seeking, among others, a writ of habeas corpus directing the respondents to produce the friend of the petitioner, Nandakumar, who is detained in terms of an order issued under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (the Act), and to set him at liberty. 2. Heard the learned counsel for the petitioner as also the learned Government Pleader. 3. Ext.P1 order of detention was issued on 20.06.2024 and the same was executed on 30.09.2024. The detenu is involved in four cases of which the last one was Crime No.401 of 2024 of Palakkad Town North Police Station registered on 06.04.2024 under Sections 341, 323, 324 and 326 of the Indian Penal Code (IPC), Section 17 of the Kerala Money Lenders Act, 1958 and Section 4 of the Kerala Prohibition of Charging Exorbitant Interest Act, 2012. The detenu was arrested in connection with the last case on 16.04.2024 and he was enlarged on bail on 27.05.2024. 4. The first and foremost contention raised by the learned counsel for the petitioner is that there is inordinate delay in executing the order of detention and that the detention is therefore illegal. It was also contended by the learned counsel that there is a long delay of 75 days from the date of the last prejudicial activity and the order of detention and the said delay snapped the live link between the order of detention and the grounds of detention and that the order of detention is, therefore, vitiated. It was further contended by the learned counsel that there is non-compliance of the mandatory requirement contained under Section 3(3) of the Act inasmuch as the order of detention has not been reported forthwith to the Government and the Director General of Police, together with a copy of the order and supporting records and that therefore, the detention is illegal. It was further contended by the learned counsel that Ext.P4 representation preferred by the petitioner before the Government against the order of detention has not been considered by the Government at the earliest opportunity on the ground that the matter is seized of by the Advisory Board and that the representation has been considered only after the receipt of the report of the Advisory Board. According to the learned counsel, the course adopted by the Government in this regard is faulty and that the Government ought to have considered and disposed of Ext.P4 representation notwithstanding the fact that the matter is seized of by the Advisory Board. The learned counsel has relied on the decision of the Constitution Bench of the Apex Court in Pankaj Kumar Chakrabarty v. State of W.B. , (1969) 3 SCC?400, the decision of the two Judge Bench of the Apex Court in Pramod Singla v. Union of India , 2023 SCC OnLine SC 374 and the decision of a Division Bench of this Court in Kumari A.V. v. State of Kerala , 2024 KHC 646 , in support of his argument. It was the submission of the learned counsel that inasmuch as the said course has not been adopted by the Government, the detention is illegal. 5. The learned Government Pleader submitted that when the order of detention was issued, it was noticed that the detenu was arrested in connection with a case registered in Madukkarai Police Station in the State of Tamil Nadu under Section 398 IPC and that he was in judicial custody in connection with that case. According to the learned Government Pleader, it was on account of that reason that the order of detention could not be executed with immediate effect. It was pointed out that the detenu was enlarged on bail in that case only on 07.09.2024 and that immediately thereafter, the order of detention was executed on 30.09.2024.As regards the contention that there is delay from the date of the last prejudicial activity to the order of detention, it was pointed out by the learned Government Pleader that the proposal to detain the detenu under the Act was submitted on 05.06.2024, immediately after he was enlarged on bail in connection with Crime No.401 of 2024 and the order of detention was issued immediately thereafter on 20.06.2024 and therefore, there is no delay. As regards the contention that there is non-compliance of the mandatory requirement under Section 3(3) of the Act, the learned Government Pleader brought to our attention the communication dated 20.06.2024 issued by the detaining authority in compliance of the said statutory provision and argued that the requirement under the said statutory provision has been complied with. As regards the contention that there is non-compliance of the mandatory requirement under Section 3(3) of the Act, the learned Government Pleader brought to our attention the communication dated 20.06.2024 issued by the detaining authority in compliance of the said statutory provision and argued that the requirement under the said statutory provision has been complied with. As regards the contention that Ext.P4 representation preferred by the petitioner before the Government has not been considered at the earliest opportunity, the learned Government Pleader pointed out that by the time the representation was received, the matter was already referred to the Advisory Board and it is on account of that reason that the representation could not have been considered until receipt of the report of the Advisory Board. The learned Government pleader relied on the decision of the Apex Court in Golam Biswas v. Union of India , (2015) 16 SCC 177 , in support of his argument. 6. In reply to the submission made by the learned Government Pleader, the learned counsel for the petitioner contended that even if it is taken that the Government was unable to execute the order of detention till the release of the detenu from the Tamil Nadu jail, there is still a delay of 23 days in executing the order of detention. According to the learned counsel, in the absence of any explanation, the said delay would make the order of detention unenforceable. 7. We have examined the contentions raised by the learned counsel for the petitioner. No doubt, if an order of detention is not executed within a reasonable time, the order would become unenforceable. Likewise, the fact that the detenu was undergoing judicial custody cannot be projected as an impediment in executing an order of detention. But at the same time, the decision taken by the authorities empowered to execute the order of detention to wait until the release of the detenu from the Tamil Nadu jail, cannot be said to be faulty for, the authorities empowered to execute the order are not bound, in all cases, to detain the person concerned even if he is in judicial custody. As pointed out by the learned counsel for the petitioner, even though the detenu was released on bail in connection with the case registered in Madukkarai Police Station on 07.09.2024, the order of detention was executed only on 30.09.2024 and there is still a delay of 23 days in executing the order of detention. The learned Government Pleader has made available a copy of the order granting bail to the detenu in the case registered in Tamil Nadu and pointed out that bail was granted to the detenu in the said case subject to the condition that he should appear before the Jurisdictional Magistrate everyday for a period of one month at 10 a.m. and that the detenu remained in the State of Tamil Nadu itself, owing to the said condition. According to the learned Government pleader, the detenu came to Kerala only on 30.09.2024 and the detention order was executed on that day itself. True, the explanation aforesaid has not been stated in the counter affidavit. But, the respondents cannot be blamed for having not stated the said explanation in the counter affidavit, as the contention that there is delay even after the release of the detenu from Tamil Nadu jail is not raised in the writ petition. It is an argument that was raised at the time of hearing. Be that as it may, inasmuch as the detenu was undergoing judicial custody pursuant to his arrest in connection with a case registered outside the territory of the State, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of this case, we are of the view that the delay of 23 days in executing the order of detention, under the circumstances, cannot be said to be fatal. 8. As regards the contention that there is inordinate and unexplained delay from the date of the last prejudicial activity to the date of the order of detention, it is to be noted that the occurrence which is subject matter of the last crime in which the detenu was involved, was one that took place on 06.04.2024. 8. As regards the contention that there is inordinate and unexplained delay from the date of the last prejudicial activity to the date of the order of detention, it is to be noted that the occurrence which is subject matter of the last crime in which the detenu was involved, was one that took place on 06.04.2024. He was arrested in connection with the said case on 16.04.2024 and enlarged on bail only on 27.05.2024 and immediately thereafter, proposal for the detention of the detenu was submitted on 05.06.2024 and the order of detention was issued on 20.06.2024 itself. In WP(Crl.) No.1329 of 2024, it was held by us that even though the principle is that the delay between the last prejudicial activity and the order of detention, unless satisfactorily explained, would throw a considerable doubt on the genuineness of the requisite subjective satisfaction of the detaining authority in passing the order of detention and render the order of detention bad and invalid for want of live and proximate link between the grounds of detention and the purpose of detention, if the detenu is in custody all throughout, it is not possible to make an inference straight away that the live and proximate link between the grounds of detention and the purpose of detention has been snapped on account of the delay. As such, in the case on hand, if the period during which the detenu was undergoing judicial custody in connection with the last prejudicial activity is excluded from consideration, we do not think that there is unexplained delay, on the basis of which it could be contended legitimately that the live link between the prejudicial activities and the grounds of detention has been snapped. 9. As regards the contention that there is non-compliance of the mandatory provision contained in Section 3(3) of the Act, it is seen that it is based on Ext.P3 reply given by the Public Information Officer to Ext.P2 application preferred by the counsel for the petitioner under the Right to Information Act that the said contention has been raised. 9. As regards the contention that there is non-compliance of the mandatory provision contained in Section 3(3) of the Act, it is seen that it is based on Ext.P3 reply given by the Public Information Officer to Ext.P2 application preferred by the counsel for the petitioner under the Right to Information Act that the said contention has been raised. No doubt, in terms of the provision contained in Section 3(3) of the Act, when an order of detention is issued, it is obligatory on the part of the authorised officer to forthwith report that 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, has a bearing on the matter. The letter addressed by the authorised officer to the Additional Chief Secretary to Government, and the Director General of Police on 20.06.2024 which has been produced by the petitioner in the writ petition itself, reads thus: “Kind attention is invited to the subject and reference cited. It is hereby informed that a detention order No.DCPKD/6661/2024-S1 Dated:20.06.2024 has been duly passed u/s 3(1) and 3(2) of KAAPA, 2007 in respect of Nandakumar, Age-32, S/o Narayanaswamy, Chithira House, Jayram Colony, Chirakkad, Kunnathurmedu, Palakkad. Copies of the detention order, grounds and relevant records are enclosed herewith for information.” The contents of the extracted letter reveal compliance of the mandatory requirement under Section 3(3) of the Act. Be that as it may, the query made by the counsel for the petitioner in Ext.P2 was the following: The reply in Ext.P3 for the query referred to above, reads thus: As noted, the argument of the learned counsel for the petitioner is that in the light of Ext.P3 reply, it will have to be presumed that the detaining authority has forwarded to the Government only the order of detention and not the supporting records. In Ext.P2 query, the counsel for the petitioner only sought information as to when the order of detention has been received in the office of the Additional Chief Secretary and how the same was received. Similarly, the counsel for the petitioner sought information as to the number of pages of the materials and the particulars of the same. In Ext.P2 query, the counsel for the petitioner only sought information as to when the order of detention has been received in the office of the Additional Chief Secretary and how the same was received. Similarly, the counsel for the petitioner sought information as to the number of pages of the materials and the particulars of the same. Going by Ext.P3 reply, the query sought by the counsel for the petitioner as to the number of pages of the materials and the particulars of the same were not furnished by the Public information Officer. Even though it was mentioned in Ext.P3 reply that the counsel for the petitioner can prefer an appeal against the reply given to the information sought by him, no appeal has been preferred. As such, from Ext.P3 reply alone, according to us, it cannot be inferred that the detaining authority has not forwarded the supporting records along with the copy of the order of detention. 10. Coming to the contention that Ext.P4 representation preferred by the petitioner has not been considered by the Government at the earliest opportunity, there is no dispute to the fact that Ext.P4 representation has been received by the Government only after the case of the detenu has been placed before the Advisory Board. Similarly, there is no dispute to the fact that the Advisory Board has formulated its report in relation to the case of the detenu only on 14.11.2024 and the Government confirmed the detention order on 22.11.2024 on receipt of the report of the Advisory Board. The confirmation order which was made available by the learned Government Pleader refers to the representation submitted by the petitioner. As such, it can be presumed that it is after considering Ext.P4 representation that the order of detention has been confirmed by the Government. There is also no dispute to the fact that the detenu was informed by the Government thereupon by letter dated 25.11.2024 about the decision taken in the representation. The petitioner has no case that there is any delay on the part of the Government in considering the representation of the petitioner after receiving the report of the Advisory Board. There is also no dispute to the fact that the detenu was informed by the Government thereupon by letter dated 25.11.2024 about the decision taken in the representation. The petitioner has no case that there is any delay on the part of the Government in considering the representation of the petitioner after receiving the report of the Advisory Board. As noted, the contention is only that the representation preferred by the petitioner should have been considered by the Government at the earliest opportunity, notwithstanding the fact that the case of the detenu has been placed before Advisory Board, and that the course adopted by the Government in waiting for the report of the Advisory Board for considering the representation is faulty. The question, therefore, is whether the Government was justified, on the facts of this case, in not considering the representation submitted by the petitioner on the ground that the case of the petitioner has been placed before the Advisory Board. 11. In Pankaj Kumar Chakrabarty , a case arising under the Preventive Detention Act, 1950, the provisions of which are pari materia to the provisions contained in the Act, the Constitution Bench of the Apex Court held that the State Government is constitutionally bound to consider the representation of the detenu independently, irrespective of the fact whether the same was made before or after his case has been placed before the Advisory Board. That was a case where the representations were made to the Government by the detenus after their detentions, and the Government did not consider the said representations and merely passed them on to the Advisory Board for its opinion. Since Ext.P4 representation of the petitioner in the case on hand has been considered and disposed of by the Government, the decision in Pankaj Kumar Chakrabarty may not have any application to the facts of the present case. Since Ext.P4 representation of the petitioner in the case on hand has been considered and disposed of by the Government, the decision in Pankaj Kumar Chakrabarty may not have any application to the facts of the present case. Be that as it may, in K.M. Abdulla Kunhi v. Union of India , (1991) 1 SCC 476 , a case arising under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (COFEPOSA) it was held by the Apex Court that in cases where the representation of the detenu is received before the case is referred to the Advisory Board, but there is no time to dispose of the representation before referring the case to the Advisory Board, then in such a situation, the representation must also be forwarded to the Advisory Board along with the case of the detenu and in cases where the representation is received after the case is referred to the Advisory Board, then too the Government has to forward the representation to the Advisory Board, provided the Board has not concluded its proceedings. The Apex Court clarified that in both these situations, there is no question of consideration of the representation before the receipt of the report of the Advisory Board. It was also clarified by the Apex Court in the said case that in such situation, it cannot be contended that the Government has delayed the consideration of the representation, unnecessarily awaiting the report of the Board. Paragraph 16 of the said judgment reads thus: “16. We agree with the observations in Frances Coralie Mullin case. The time imperative for consideration of representation can never be absolute or obsessive. It depends upon the necessities and the time at which the representation is made. The representation may be received before the case is referred to the Advisory Board, but there may not be time to dispose of the representation before referring the case to the Advisory Board. In that situation the representation must also be forwarded to the Advisory Board along with the case of the detenu. The representation may be received after the case of the detenu is referred to the Board. Even in this situation the representation should be forwarded to the Advisory Board provided the Board has not concluded the proceedings. In that situation the representation must also be forwarded to the Advisory Board along with the case of the detenu. The representation may be received after the case of the detenu is referred to the Board. Even in this situation the representation should be forwarded to the Advisory Board provided the Board has not concluded the proceedings. In both the situations there is no question of consideration of the representation before the receipt of report of the Advisory Board. Nor it could be said that the government has delayed consideration of the representation, unnecessarily awaiting the report of the Board. It is proper for the government in such situations to await the report of the Board. If the Board finds no material for detention on the merits and reports accordingly, the government is bound to revoke the order of detention. Secondly, even if the Board expresses the view that there is sufficient cause for detention, the government after considering the representation could revoke the detention. The Board has to submit its report within eleven weeks from the date of detention. The Advisory Board may hear the detenu at his request. The constitution of the Board shows that it consists of eminent persons who are Judges or persons qualified to be Judges of the High Court. It is therefore, proper that the government considers the representation in the aforesaid two situations only after the receipt of the report of the Board. If the representation is received by the government after the Advisory Board has made its report, there could then of course be no question of sending the representation to the Advisory Board. It is therefore, proper that the government considers the representation in the aforesaid two situations only after the receipt of the report of the Board. If the representation is received by the government after the Advisory Board has made its report, there could then of course be no question of sending the representation to the Advisory Board. It will have to be dealt with and disposed of by the government as early as possible.” (Underline supplied) Later, in Ankit Ashok Jalan v. Union of India , (2020) 16 SCC 127 , a Three Judge Bench of the Apex Court, after referring to the Constitution Bench decisions of the Apex Court in Pankaj Kumar Chakrabarty and K.M. Abdulla Kunhi , held that in all cases, the Government would be acting in two capacities; one while considering the representation and the other, while taking appropriate decision after a report is received from the Advisory Board that there is sufficient cause for detention and it is on account of that reason that it was held by the Apex Court in K.M.Abdulla Kunhi that it would be proper for the appropriate Government to wait till the report of the Advisory Board is received. Ankit Ashok Jalan was a case where the detention orders were passed by the Joint Secretary to the Government of India, specially empowered under Section 3(1) of COFEPOSA and the representations preferred by the detenus before the specially empowered officer were not considered by the said officer. Instead, the detenus were given a communication that in the light of the decision of the Apex Court in Golam Biswas which was rendered following the decision of the Apex Court in K.M.Abdulla Kunhi , the representations will be considered for disposal by the competent authority only after receipt of opinion of the Advisory Board. Instead, the detenus were given a communication that in the light of the decision of the Apex Court in Golam Biswas which was rendered following the decision of the Apex Court in K.M.Abdulla Kunhi , the representations will be considered for disposal by the competent authority only after receipt of opinion of the Advisory Board. It was also held by the Apex Court in Ankit Ashok Jalan that a representation if made to the specially empowered officer under COFEPOSA who had passed the order of detention in accordance with the power vested in him, the same has to be independently considered by such detaining authority and in that case, the principles concerned adverted to in para 16 of the decision in K.M. Abdulla Kunhi would not be the governing principles for such specially empowered officer and that the discussion in K.M. Abdulla Kunhi was purely in the context where the order of detention was passed by the appropriate Government and not by the specially empowered officer. The relevant portions of paragraphs 23 to 28 of the judgment of the Apex Court in Ankit Ashok Jalan read thus: “23. It must also be borne in mind that in all cases, the appropriate Government would be acting in two capacities; one while considering the representation and the other while taking appropriate decision after a report is received from the Advisory Board that there is sufficient cause for detention. Since the decision would be required to be taken in these two capacities, it was observed in K.M. Abdulla Kunhi that it would be proper for the appropriate Government to wait till the report is received from the Advisory Board in cases dealt with in para 16 of the decision. But such may not be the case with the detaining authority who is a specially empowered officer. 24. A specially empowered officer who passes the order of detention, in exercise of special empowerment, has no statutory role to play at the stage when the report is received from the Advisory Board. The report is to be considered by the appropriate Government and not by the specially empowered officer. It may also be relevant at this stage to consider the element of confidentiality associated with the report of the Advisory Board. Section 8 of the Cofeposa Act states: x x x x x x x x x 25. The report is to be considered by the appropriate Government and not by the specially empowered officer. It may also be relevant at this stage to consider the element of confidentiality associated with the report of the Advisory Board. Section 8 of the Cofeposa Act states: x x x x x x x x x 25. In terms of Section 8, the report of the Advisory Board is meant only for the consumption of the appropriate Government and apart from the operative part of the report which is to be specified in a separate paragraph as per sub- section (c), the mandate in terms of sub-section (e) is to keep the report of the Advisory Board completely confidential. Thus, a specially empowered officer who may have passed the order of detention, by statutory intent is not to be privy to the report nor does the statute contemplate any role for such specially empowered officer at the stage of consideration of the opinion of the Advisory Board. The report of the Advisory Board may provide some qualitative inputs for the appropriate Government but none to the specially empowered officer who acted as the detaining authority. If that be so, would a specially empowered officer who had passed the order of detention be bound by what has been laid down by this Court in para 16 of the decision in K.M. Abdulla Kunhi in the context of the appropriate Government? 26. It must also be stated here that when K.M. Abdulla Kunhi was decided on 23-1-1991, the decision that was holding the field as to the role of a specially empowered officer who had passed an order of detention, was one rendered in Sushila Mafatlal Shah . The law that was holding the field was the concept of deemed approval as was explained in Sushila Mafatlal Shah and any representation made to such specially empowered officer who had passed the order of detention, in terms of the decision in Sushila Mafatlal Shah could be considered by the appropriate Government itself and not separately by such specially empowered officer. The subsequent decision in Amir Shad Khan was rendered by a Bench of three Judges on 9-8-1991 and the apparent conflict in the decisions between Sushila Mafatlal Shah and Amir Shad Khan was resolved by the Constitution Bench of this Court in Kamleshkumar rendered on 17-4-1995 i.e. well after the decision in K.M. Abdulla Kunhi. 27. Thus, if the law is now settled that a representation can be made to the specially empowered officer who had passed the order of detention in accordance with the power vested in him and the representation has to be independently considered by such detaining authority, the principles concerned adverted to in para 16 of the decision in K.M. Abdulla Kunhi would not be the governing principles for such specially empowered officer. It must be stated that the discussion in K.M. Abdulla Kunhi was purely in the context where the order of detention was passed by the appropriate Government and not by the specially empowered officer. The principle laid down in said para 16 has therefore to be understood in the light of the subsequent decision rendered by another Constitution Bench of this Court in Kamleshkumar . 28. In the light of the aforesaid discussion, our answer to first two questions is that the detaining authority ought to have considered the representation independently and without waiting for the report of the Central Advisory Board.” 12. Reverting to the facts, Section 7 of the Act confers on the detenu a right to prefer a representation only before the Government and the Advisory Board and not before the authorised officer, when the power of detention is exercised by the authorised officer, unlike in the case of the detention under the COFEPOSA where, if the order of detention is passed by the specially empowered officer, representation can be preferred against the order of detention before the specially empowered officer also. Inasmuch as the Government has dual roles to play in the case on hand, also as clarified by the Apex Court in Ankit Ashok Jalan , one while considering the representation and the other while taking appropriate decision after a report is received from the Advisory Board that there is sufficient cause for detention, we do not find any reason to hold that the ratio in K.M.Abdulla Kunhi does not apply to the facts of this case, merely for the reason that the scheme of the Act is such that it does not confer any right on the detenu to prefer a representation before the authorised officer. 13. Pramod Singla was a decision which examined the question whether there exists any incongruity between Pankaj Kumar Chakrabarty and K.M.Abdulla Kunhi and even in that case, after holding that there exists no friction between Pankaj Kumar Chakrabarty and K.M.Abdulla Kunhi , it was held that the mandate to not wait for the Advisory Board, would be applicable only to the detaining authority. Similarly, Kumari A.V. was a case where, unlike the case on hand, the representation of the detenu was received by the Government long before the case of the detenu therein was placed before the Advisory Board and we understand that it is in that context that this Court has held that it was obligatory for the Government to consider the representation, and interfered with the order of detention for non-consideration of the representation by the Government. In the light of the discussion aforesaid, the writ petition is devoid of merits and the same is therefore, dismissed.