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2025 DIGILAW 1694 (KER)

Sujodh K S/o Sunil K v. State Of Kerala

2025-06-23

JOBIN SEBASTIAN, P.B.SURESH KUMAR

body2025
JUDGMENT : Jobin Sebastian, J. The petitioner is the brother of one Akshay K. ('detenu' for the sake of brevity). His challenge in this Writ Petition is directed against Ext.P1 order of detention dated 06.01.2025 passed by the 2nd respondent under Section 3 (1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (‘KAA(P) Act’ for brevity), against the detenu. After considering the opinion of the Advisory Board, the said order stands confirmed by the Government, vide order dated 11.03.2025, and the detenu has been ordered to be detained for a period of six months with effect from the date of detention. 2. The records reveal that it was after considering the recurrent involvement of the detenu in criminal activities, a proposal was submitted by the District Police Chief, Kannur City, on 13.11.2024, seeking initiation of proceedings against the detenu under Section 3 (1) of the KAA(P) Act before the jurisdictional authority, the 2nd respondent. Altogether, five cases in which the detenu got himself involved formed the basis for passing Ext.P1 order of detention. Out of the said cases, the case registered with respect to the last prejudicial activity is crime No.795/2024 of Mattannur Police Station, alleging commission of the offence punishable under Section 22 (c) of the NDPS Act. 3. We heard Sri. M.H. Hanis, 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 Ext. P1 order is passed on improper consideration of facts and without proper application of mind. The learned counsel urged that apart from registering an FIR, there is nothing to show that the detenu is having active involvement in the case registered with respect to the last prejudicial activity. Therefore, the said case could not be treated as a qualified one to classify the detenu as a known goonda. The learned counsel further submitted that the jurisdictional authority passed Ext.P1 order in a hasty manner without considering the fact that there was an effective remedy of cancellation of the bail granted to the detenu. According to the counsel, as an alternative remedy was available to deter the detenu from repeating criminal activities, a drastic measure of preventive detention was not at all necessitated. According to the counsel, as an alternative remedy was available to deter the detenu from repeating criminal activities, a drastic measure of preventive detention was not at all necessitated. The learned counsel further urged that the jurisdictional authority passed the impugned order of detention, disregarding the fact that the detenu was released on bail with respect to the last prejudicial activity, and the conditions imposed on him at the time of granting bail itself are sufficient to deter the detenu from involving in further criminal activities. The learned counsel submitted that although a representation was submitted by the petitioner on behalf of the detenu before the Government, the said representation was not considered by the Government and confirmed the detention order in a mechanical manner. According to the counsel, non-consideration of the representation submitted by the petitioner itself is a ground to set aside the impugned order of detention. 5. In response, Sri.K.A.Anas, the learned Government Pleader, submitted that Ext.P1 order of detention was passed by the jurisdictional authority after proper application of mind and after arriving at the requisite objective as well as subjective satisfaction. According to him, it was after being satisfied that there is no other effective or alternative remedy to restrain the detenu from repeating criminal activities, the jurisdictional authority passed the detention order. The learned Government Pleader further submitted that apart from registering an FIR, there are sufficient other materials to prove the involvement of the detenu in the case registered with respect to the last prejudicial activity, and hence, there is nothing wrong in considering the said case for passing the order of detention. 6. Before delving into a detailed discussion regarding the contentions taken by the learned counsel appearing for both sides, it is to be noted that, to initiate proceedings under KAA(P) Act, the detenu was classified as a known goonda considering his recurrent involvement in criminal activities. Altogether five cases formed the basis for passing Ext.P1 order of detention and out of the said five cases considered by the jurisdictional authority the case registered with respect to the last prejudicial activity is crime No.795/2024 of Mattannur Police Station, alleging commission of the offence punishable under Section 22 (c) of the NDPS Act. The detenu is arrayed as the 3rd accused in the said case. The detenu is arrayed as the 3rd accused in the said case. The allegation in the said case is that on 23.10.2024 at 09.10 p.m., the 1st and 2nd accused in the said case were found possessing and transporting 13.25 gms of MDMA for the purpose of sale in violation of the provisions of the NDPS Act, in a motorcycle and it was from the 3rd accused the 1st and 2nd accused purchased the contraband. The detenu who was arrayed as the 3rd accused in the said case was arrested on 31.10.2024. However, in the FSL examination of the contraband conducted subsequently, it was revealed that the contraband seized in the case was not MDMA but methamphetamine. Hence, offence under Section 22 (b) of the NDPS Act was incorporated in the said case, after deleting the offence under Section 22 (c) of the NDPS Act, for which the FIR was originally registered. Thereafter, it was on 20.12.2024, the detenu was released on bail. The proposal for the initiation of proceedings under KAA(P) Act was mooted by the District Police Chief, Kannur City, on 13.11.2024, while the detenu was under judicial custody. Thereafter, it was on 06.01.2025, Ext.P1 order was passed. The sequence of the events narrated above clearly reveals that there is no unreasonable delay either in mooting the proposal or in passing Ext.P1 order. 7. One of the contentions taken by the learned counsel for the petitioner is that, it was without taking note of the fact that the detenu was released on bail in the case registered with respect to the last prejudicial activity and without considering the sufficiency of the bail conditions imposed by the court at the time of granting bail, the jurisdictional authority passed the detention order. While considering the said contention, it is noteworthy that there is no law that precludes the jurisdictional authority from passing 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 restrain him from involving in criminal activities. 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 restrain him 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, the fact that the detenu was released on bail in the case registered against him with respect to the last prejudicial activity is specifically adverted to. Furthermore, the impugned order explicitly states that the jurisdictional authority thoroughly considered the bail order, including the conditions imposed and their adequacy. Moreover, the conditions imposed by the court while granting bail are extracted in Ext.P1 detention order. In Ext.P1 order, it is specifically mentioned that the conditions clamped on the detenu are not sufficient to deter him from repeating criminal activities. Therefore, the contention of the learned counsel for the petitioner that the sufficiency of the bail conditions was not properly considered by the detaining authority will not be sustained. 8. Another contention taken by the learned counsel for the petitioner is that, other than the FIR registered, there are no materials to show the involvement of the detenu in the case registered with respect to the last prejudicial activity. While considering the said contention, it is to be noted that mere registration of FIR alone is not sufficient to treat a case as a qualified one to initiate proceedings under KAA(P) Act. However, there is no legal requirement that in order to treat a case as a qualified one, for passing an order under KAA(P) Act, a final report should be filed in that case. However, there must be ‘something more’ to show the complicity of the detenu in the commission of the offence apart from mere registration of an FIR. Keeping in mind the above, while reverting to the fact in the present case, it can be seen that the detenu is arrayed as the 3rd accused in the said case, and the contraband involved in this case was allegedly recovered from the 1st and 2nd accused. However, in the seizure mahazar prepared contemporaneously with the recovery of the contraband, the name of the detenu is specifically mentioned. However, in the seizure mahazar prepared contemporaneously with the recovery of the contraband, the name of the detenu is specifically mentioned. In the FIS also, the detenu’s name finds a place. We are cognizant of the fact that the name of the detenu was incorporated in the said case on the basis of the confession statement given by the 1st accused at the time of detection of this case. In the seizure mahazar, it is mentioned that the 1st accused confessed that it was from the detenu the contraband was purchased. We are not oblivious that the confession of a co-accused is generally inadmissible. However, for the purpose of investigation, such a confession assumes much importance. Moreover, in the case at hand, the records reveal that, apart from the confession statements given by the co-accused, sufficient evidence regarding frequent calls and chats between all the accused has already been collected. Similarly, in the seizure mahazar, it is mentioned that on verification of the mobile phone of the 1st accused, it was revealed that he had sent an amount of Rs. 5,000/- to the detenu through Google Pay on the alleged date of the detection of this case. Therefore, it is apparent that it was after being satisfied with detenu’s involvement in the said case he was arrested and remanded to judicial custody. In short, the recovery mahazar and the other documents relied upon by the detaining authority in passing the impugned order suggest that, apart from the FIR, there are materials to connect the detenu with the last prejudicial activity attributed against him. Therefore, the detenu cannot be heard to say that apart from mere registration of FIR, there is nothing to prove his complicity in the last prejudicial activity. 9. One of the main contentions raised by the learned counsel for the petitioner is that the purported hasty action on the part of the jurisdictional authority in passing an order under Section 3 (1) of KAA(P) Act is not justified as there was remedy under ordinary criminal law to deter the detenu from repeating criminal activities. 9. One of the main contentions raised by the learned counsel for the petitioner is that the purported hasty action on the part of the jurisdictional authority in passing an order under Section 3 (1) of KAA(P) Act is not justified as there was remedy under ordinary criminal law to deter the detenu from repeating criminal activities. According to the counsel, if the authority was concerned about violations of bail conditions imposed on the detenu in the cases registered against him and his recurrent involvement in criminal actitities, the course open was to file a petition to cancel the bail granted to the detenu and to detain him in terms of the provisions contained under CrPC. In order to substantiate his contentions in this regard, the learned counsel heavily relied on the decision of the Hon’ble Supreme Court in Dhanya M. V. State of Kerala (2025 KHC 6577). 10. We are not oblivious of the fact that detention under the KAA(P) Act or similar detention laws is a drastic measure against a citizen, especially when it heavily impacts their personal as well as fundamental rights. When an effective and alternative remedy exists to prevent a person from repeating criminal activities, resorting to detention under such laws is neither warranted nor permissible. However, merely because there is a provision for cancellation of bail under the ordinary criminal law, it cannot be said that an order of detention under KAA(P) Act cannot be passed. When there is an imminent danger of repetition of criminal activities by a person who can be classified as ‘known goonda’ or ‘known rowdy’, cancellation of bail orders already secured by him would not be sufficient to deter such a person from indulging in criminal activities. The reason being, first of all, the purpose and scope of an application for cancellation of bail are different. That apart, since the procedure prescribed for cancellation of bail, having regard to the ground realities is time consuming, there is no assurance that an order of cancellation of bail could be secured before the person concerned indulges into another criminal activity. Preventive detention laws are enacted to address such exigencies. That apart, since the procedure prescribed for cancellation of bail, having regard to the ground realities is time consuming, there is no assurance that an order of cancellation of bail could be secured before the person concerned indulges into another criminal activity. Preventive detention laws are enacted to address such exigencies. It is on account of these reasons that it has been held by the courts consistently that the authorities under the preventive detention laws need not have to wait till orders are passed on the application for cancellation of bail, for passing an order of detention. If it is held that, if there is an option for cancellation of bail, a detention order cannot be passed, it would render the preventive detention laws ineffective. In other words, it cannot be said as a general proposition of law that if there is an option for cancellation of bail already granted to a person, an order of detention cannot be passed against him, although there could be exceptions to this position. 11. We have meticulously perused the decision of the Honourable Supreme Court in Dhanya's case (cited supra) and it cannot be inferred from the judgment that the Honourable Supreme Court has held in the said case as a proposition of law that an order of detention cannot be passed, if an option is available for cancellation of bail already granted. A reading of the judgment in Dhanya 's case only indicates that the observation in paragraph 20 of the judgment regarding the application for cancellation of bail is one made on the facts of that case. 12. That apart, In Dhanya ’s case, the preventive detention order was passed based on the detenu’s involvement in four cases, and in all the said four cases, the offences alleged was under Section 17 of the Kerala Money Lenders Act and Section 3 of Kerala Prohibition of Charging Exorbitant Interest Act, 2012. The Hon’ble Supreme Court set aside the order of detention mainly on a finding that the offences attributed to the detenu in those cases did not affect the maintenance of public order. Moreover, reiterating the observations in Nenavath Bujji v. State of Telangana and others [ 2024 SCC Online SC 367 ], the Hon’ble Supreme Court had drawn a clear distinction between the realms of law and order and public order. Moreover, reiterating the observations in Nenavath Bujji v. State of Telangana and others [ 2024 SCC Online SC 367 ], the Hon’ble Supreme Court had drawn a clear distinction between the realms of law and order and public order. In paragraphs 19 and 20 of the said judgment, the Hon’ble Supreme Court observed as follows: “19. In consonance with the above expositions of law, in our view, the attending facts and circumstances do not fall under the category of a public order situation. The observations made in the detention order do not ascribe any reason as to how the actions of the detenu are against the public order of the State. As discussed above, given the extraordinary nature of the power of preventive detention, no reasons are assigned by the detaining authority, as to why and how the actions of the detenu warrant the exercise of such an exceptional power. 20. Moreover, it has been stated therein by the authority that the detenu is violating the conditions of bail, imposed upon him in the cases that have been considered for passing the order of detention. However, pertinently, no application has been filed by the respondent-State in any of the four cases, alleging violation of such conditions, if any, and moreover, have not even been spelt out here.” 13. Essentially, the Hon’ble Supreme Court set aside the detention order in Dhanya’s case on a finding that the facts and circumstances were insufficient to classify the detenu’s action as harmful for the maintenance of public order. Notably, the said detention order was passed based on the cases alleging offences under the Kerala Money Lenders Act and the Kerala Prohibition of Charging Exorbitant Interest Act, 2012 were alleged. It was mainly by taking note of the fact that the facts and circumstances in the said cases did not fall under the category of public order, the Hon’ble Supreme Court set aside the order of detention and made a finding that the State could approach the competent court for cancellation of bail. 14. However, in the case at hand, the cases considered by the detaining authority to pass the impugned order of detention are not cases registered alleging offences under the Kerala Money Lenders Act or Kerala Prohibition of Charging Exorbitant Interest Act, 2012. 14. However, in the case at hand, the cases considered by the detaining authority to pass the impugned order of detention are not cases registered alleging offences under the Kerala Money Lenders Act or Kerala Prohibition of Charging Exorbitant Interest Act, 2012. Rather, the impugned order of detention has been passed based on cases registered alleging offences under the NDPS Act and the IPC, which are certainly harmful for the maintenance of the public order, or will fall under the definition of anti-social activities. Therefore, the petitioner cannot be heard to say that instead of passing the impugned order of detention, the remedy was to file an application for cancellation of bail. 15. Another contention pressed into service from the side of the petitioner is that, though a representation was submitted by the petitioner on behalf of the detenu before the Government, the said representation was not considered by the Government and confirmed the impugned order of detention in a mechanical manner. According to the counsel, the non-consideration of the representation submitted by the petitioner itself is a ground to set aside Ext.P1 order. We do agree that it is an indefeasible right of a detenu to file representations before the Government as well as the Advisory Board challenging an order of detention passed against him. However, a perusal of the confirmation order passed by the Government reveals that the representation submitted to the Government by the petitioner on behalf of the detenu (Ext. P3) has not been referred to. However, in the confirmation order, the representation dated 21.02.2025 submitted by the petitioner on behalf of the detenu before the Advisory Board KAA(P) Act is specifically referred to. Moreover, the representation submitted before the Advisory Board was properly considered by the Government while passing the confirmation order, and admittedly, the fate of the said representation was also communicated to the detenu. More pertinently, even the petitioner does not have a case that the representations sent to the Government and to the Advisory Board are not similar. Rather, it is admitted that the representation forwarded to the Government is the verbatim reproduction of the representation sent to the Advisory Board. After considering the said representation, the Advisory Board formed an opinion. The said opinion was forwarded to the Government with the representation addressed to the Advisory Board. Rather, it is admitted that the representation forwarded to the Government is the verbatim reproduction of the representation sent to the Advisory Board. After considering the said representation, the Advisory Board formed an opinion. The said opinion was forwarded to the Government with the representation addressed to the Advisory Board. The Government, in the matter of approving the detention, considered the representation forwarded by the Advisory Board as if it is one addressed to the Government. Thereafter, the Government independently considered the representation, and the fate of the representation was communicated to the detenu. Hence, it cannot be said that the constitutional right of the detenu is infringed in any manner. Therefore, the contention of the petitioner in the above regard will also fail. 16. From a perusal of the records, we are satisfied that all the necessary procedural requirements before and after passing an order under Section 3 (1) of the KAA(P) Act have been scrupulously complied with in this case. We are further satisfied that the competent authority passed the detention order after thoroughly verifying all the materials placed by the sponsoring authority and after arriving at the requisite objective and subjective satisfaction. Therefore, it cannot be said that the order passed under Section 3 (1) of the KAA(P) Act is vitiated in any manner.