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2025 DIGILAW 830 (KER)

Anish Ponnu S/o Ponnu v. State Of Kerala

2025-04-03

JOBIN SEBASTIAN, P.B.SURESH KUMAR

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JUDGMENT : Jobin Sebastian, J. This is a writ petition filed under Article 226 of the Constitution of India, challenging Ext.P6 order of externment passed against the petitioner under Section 15 (1)(a) of the Kerala Anti-Social Activities (Prevention) Act, 2007 [KAA(P) Act for the sake of brevity]. 2. By the said order, the petitioner was interdicted from entering the jurisdictional limit of Idukki District Police Chief for one year from the date of the receipt of the order. However, after considering the representation submitted by the externee, the Advisory Board modified the said order, and the period of externment was reduced to 9 months from the date of the service of the impugned order and it is further directed that after the expiry of the period of 9 months of externment, the petitioner shall appear before the Station House Officer, Idukki Police Station, on every Monday between 10 a.m. and 12 noon for the remaining period of 3 months. 3. The records available before us reveal that, it was after considering the recurrent involvement of the petitioner in NDPS cases, the District Police Chief, Idukki, submitted a proposal for the initiation of proceedings against the petitioner under Section 15(1)(a) of the KAA(P) Act, 2007 before the authorised officer, the Deputy Inspector General of Police, Ernakulam Range. For initiation of proceedings, the petitioner has been classified as a “known goonda” as defined under Section 2(o)(i) r/w 2(j) of the KAA(P) Act, 2007. 4. For passing the order of externment, the authority reckoned 3 cases in which the petitioner was involved. The details of the said cases are as follows: Sl. No. Crime No. Police Station Sections involved Date of occurrence Status of case 1 7/2022 Excise Enforcement & Anti Narcotic Special Squad, Idukki 20(b)(i)A r/w 8 (c) &25 of NDPS Act 21.03.2022 Convicted 2 574/2023 Idukki 20(b)(i)B of NDPS Act 02.08.2023 Under trial 3 27/2024 Excise Enforcement & Anti Narcotic Special Squad, Idukki 20(b)(i)B, 29 & 25 of NDPS Act 02.05.2024 Under investigation 5. Heard Sri. M.V. Rajendran Nair, the learned counsel appearing for the petitioner and Sri. K.A. Anas, the learned Government Pleader. 6. The learned counsel for the petitioner would submit that the Ext.P6 order was passed on improper consideration of facts and without proper application of mind. Heard Sri. M.V. Rajendran Nair, the learned counsel appearing for the petitioner and Sri. K.A. Anas, the learned Government Pleader. 6. The learned counsel for the petitioner would submit that the Ext.P6 order was passed on improper consideration of facts and without proper application of mind. According to the counsel, there is an inordinate delay in mooting the proposal as well as in passing the order of externment, and hence the live link between the last prejudicial activity and the purpose of externment order is snapped. The learned counsel further submitted that the copy of the proposal which is a crucial document is not served on the petitioner and thereby he was handicapped in filing an effective representation before the Advisory Board. Moreover, the learned counsel submitted that the impugned order was passed in a casual manner without arriving at the necessary objective and subjective satisfaction. According to the counsel, apart from registering an FIR, there is nothing more to show that the petitioner has complicity in the commission of the last case registered against him and therefore, the said case could not be considered as a qualified one to consider the same for passing the impugned order. 7. Per contra, the learned Government Pleader submitted that the impugned order was passed by the jurisdictional authority after proper application of mind and after entering on the requisite objective as well as subjective satisfaction. According to the learned Government Pleader, there is no inordinate delay in passing the impugned order and hence the petitioner could not be heard to say that the live link between the last prejudicial activity and the purpose of externment was snapped. It was further submitted that all the procedural safeguards were complied with while passing the order of externment against the petitioner and hence, no interference is warranted. 8. On perusal of the records, it is gatherable that the last prejudicial activity considered by the Superintendent of Police, Idukki, to moot the proposal for initiation of proceedings under KAA(P) Act is crime No.27/2024 of Excise Enforcement & Anti Narcotic Special Squad, Idukki, registered against the petitioner alleging commission of offences punishable under Sections 20(b)(i)B, 29 & 25 of NDPS Act. The last prejudicial activity was committed on 02.05.2024 and in the said case the petitioner was caught red-handed with the contraband. The last prejudicial activity was committed on 02.05.2024 and in the said case the petitioner was caught red-handed with the contraband. The petitioner was released on bail in the case registered with respect to the last prejudicial activity on 24.07.2024. Records further disclose that, after his release from jail, the District Police Chief had submitted a proposal for initiation of proceedings under KAA(P)Act on 05.10.2024. Thereafter, the jurisdictional authority passed the order of externment on 23.11.2024, whereby the petitioner was restrained from entering the jurisdictional limits of District Police Chief, Idukki for a period of one year from the date of receipt of the order. 9. The sequence of events narrated above reveals that there is no inordinate delay in passing the impugned order. Moreover, an externment order under the KAA(P) Act is having significant bearing on the personal as well as fundamental rights of an individual. Therefore, some minimum time is required to collect the details of the cases in which the petitioner is involved and to comply with the procedural formalities. Therefore, we are of the view that the delay occurred in this case is only justifiable and it could not be said that the livelink between the last prejudicial activity and the purpose of the impugned order is snapped. Moreover, unlike in the case of an order of detention passed under Section 3 of KAA(P) Act, even if some delay has occurred in passing an order of externment, the same has no serious bearing as the consequences of both the orders are different. Because an order of detention is a grave deprivation of the personal liberty of the person detained. We are cognizant that Section 15 of the KAA(P) Act also visits the person concerned with an intrusion to his personal liberty within the limit of Article 21 especially when the said order restrains a citizen from his right to travel in any part of India. However, when a detention order under Section 3 is compared with an order of externment passed under Section 15(1) of KAA(P) Act, the latter visits a person with lesser deprivation of liberty. Therefore, the nature of proceedings under Section 3 and Section 15 are inherently different. In this regard, we are fortified by the decision in Stalin C.V. v. State of Kerala and others [ 2011 (1) KHC 852 ] . Therefore, the nature of proceedings under Section 3 and Section 15 are inherently different. In this regard, we are fortified by the decision in Stalin C.V. v. State of Kerala and others [ 2011 (1) KHC 852 ] . Consequently, we have no hesitation in holding that the delay of six months occurred in passing the externment order after the date of last prejudicial activity has no serious impact at all and the same is only liable to be discarded. 10. One of the main contentions raised by the learned counsel for the petitioner is that the copy of the proposal forwarded by the Superintendent of Police was not served on the petitioner and thereby he was handicapped in filing an effective representation before the Advisory Board. While considering the said contention it is to be noted that the Government Pleader by relying on his file vehemently contended that the copy of the proposal was duly served on the externee. At this juncture, it is pertinent to note that the petitioner is not having a case that he was not served with a notice by the jurisdictional authority to show cause why an order under Section 15(1) of KAA(P) Act shall not be passed against him. Moreover, the records reveal that a show cause notice was duly issued on 07.11.2024 and served on the petitioner on 11.11.2024. In the said notice, the petitioner was specifically directed to appear for a personal hearing on 16.11.2024 and he appeared accordingly. It was thereafter the impugned order was passed. The respondent has a definite contention that the copy of the proposal was served on the externee along with the show cause notice. Moreover, a perusal of the representation submitted by the petitioner before the Advisory Board shows that in the said representation, the petitioner is not having a case that the copy of the proposal was not served on him. Therefore, the contention of the petitioner first time before this court regarding the non-service of copy of the proposal is also liable to be discarded. 11. Another contention pressed into service by the learned counsel for the petitioner is that, apart from the FIR registered, there are no documents to show that the petitioner has committed the offence mentioned in the last case registered against him. 11. Another contention pressed into service by the learned counsel for the petitioner is that, apart from the FIR registered, there are no documents to show that the petitioner has committed the offence mentioned in the last case registered against him. While considering the said contention it is to be noted that there is no law that in order to initiate a proceeding under KAA(P) Act a final report must be filed in the case registered with respect to the last prejudicial activity. We do agree that in order to initiate proceedings under KAA(P) Act apart from registering an FIR something more to show the complicity of the accused in the commission of the offence is required. However, in the case at hand, the allegation in the last case registered against the petitioner is that he was found in possession of 5.929 kg of dried ganja for the purpose of sale in violation of NDPS Act. In the said case, the petitioner was caught red-handed with the contraband. A seizure mahazar was prepared contemporaneously with the detection of the said case and the copy of the said mahazar is admittedly served on the petitioner as part of complying with the procedures before passing an order of externment under KAA(P) Act. Therefore, the petitioner could not be heard to say that apart from registering an FIR, there is no materials to show his involvement in the last case registered against him. 12. In short, a perusal of Ext.P6 order indicates that the Deputy Inspector General of Police had passed the said order after proper evaluation of the materials and arriving at the requisite objective as well as subjective satisfaction. All the procedural safeguards envisaged under KAA(P) Act are seen scrupulously complied with before passing the order. Therefore, we are of the considered view that Ext.P6 order warrants no interference. In the result, this petition stands dismissed.